CCJ set-aside. Now Small Claims & Draft Defence.

1505grandad

Also make sure you state the full name of VCS

Khayman

Thanks both.
Does all look good otherwise?

Coupon-mad

Yes.  Go for it!  Nothing to lose.

Khayman

Hello again all!

So my renewed hearing (for Strike-out and costs, the CCJ set-aside having been kept in place) is in 3 weeks, and today in the post I've received a big old envelope from VCS containing a letter, Claimant's Witness Statement, and their supporting documents for the claim.

Suffice it to say, VCS don't seem interested in accepting my draft order of a strike-out and for them to pay my court fee. Indeed the witness statement details the claim and reasons behind filing for the CCJ etc. as well as arguing that they basically have every reason to rely on the DVLA database and nothing more. I will scan and upload some of it here later. Most interesting though is that they are now 'respectfully' requesting I be liable for their costs, which they list as "£189.00 + VAT (this being 1 hour of a Grade C (National 2) for drafting this witness statement and a standard £150.00 + VAT for arranging an advocate to attend the forthcoming hearing, a total of £406.80 inclusive of VAT."

I cannot imagine how a judge could ever award such expenses, otherwise they will effectively be saying that any defendant that makes an application to the court (at their own cost) which results in the claimant having to perform any action that incurs a cost, will be liable for that cost? Which seems an impossible position, no?

Finally I now know that they sent a total of FIVE correspondence to the incorrect address:
1. Original PCN
2. Demand for payment
3. Final demand
4. Letter before claim
5. Notice of instruction before legal proceedings

So I will obviously argue that it would surely have been diligent to confirm the address was correct between 3 and 4.

I'm annoyed and frustrated and very stressed all over again.

Coupon-mad

I cannot imagine how a judge could ever award such expenses.

Correct.

Small claims can only award such costs if the other party acts wholly unreasonably (such as not turning up to a hearing or not sending a WS).

Why have they sent a WS?

Are you happy you've sent a WS bundle stating everything you intend to rely upon including a link to the IPC CoP (if 12 months had passed between PCN date and court claim date, which I can't recall in your case?).

Khayman

I have no idea why they have sent a WS now, other than as some kind of intimidation tactic?? I'm also surprised they are making it sound like they might even bother to show up to the hearing?!

I'm happy that my original draft order, witness statement, and additional files cover everything I needed right from the start. I'm not sure about the IPC CoP though. I can't remember whether VCS fall under the IPC, I think they might be under another code? I has been over 12 months since the 'offence' now though, whether that makes any difference...

Anyway, I've attached a redacted scan of most of their WS below (first pages detailing 'I represent VCS' etc. omitted). To which I'll add the following notes per paragraph:

5. Shows that they sent 5 separate letters to the wrong address without ever bothing to confirm it was correct.

8. Feels like sleight of hand. 'the application was not opposed and communication was sent to the Defendant and the Court in that respect.' What they are actually referring to is the fake 'consent order' they sent that resulted in the original hearing being vacated in the first place! A bit more than a lack of opposition to the set aside!

11 & 12. They claim the application filed by me 'does not seek a strike-out of the claim' but the original draft order I sent states:

"2. Pursuant to the Case Management powers of the Court under CPR 3.4(1) and the requirement for service of proceedings under CPR 7.5(1) the Claimant's claim is struck out for want of service within 4 months of issue"
And my original WS requests:

"b. An order for the original claim to be dismissed as it was not served within 4 months of the issue, pursuant to CPR 7.5 and the Claimant having failed to apply for an extension, pursuant to CPR 7.6"

28. I never referenced CPR 3.4(2) so I can only think this is a strawman argument?

33. As quoted previously, I cannot fathom how this could ever be entertained by a judge?!

EDIT: Let me know if the images are too small and I'll re-do them.

Coupon-mad

Forget the IPC CoP because, whilst VCS are in that trade body AOS, the weak IPC clauses don't help because the claim was filed the same year.

They are trying to claim extra costs by painting you as having behaved unreasonably.

Judges can be easily led by legalese rhetoric. There is a possible danger of a rookie Judge thinking this is your fault for not updating your V5C, so do your homework and don't assume the Judge will be with you.

There are clear reasons why VCS should have carried out a soft trace prior to litigation:

- the Practice Direction re issuing a claim says that a claimant must check the Defendant's service address if there is 'reason to believe' that it is incorrect;

- there was 'reason to believe' that the PCN and letters hadn't reached you because they heard nothing;

- the DVLA address is a red herring; even if you'd updated your V5C between the event and the court claim, VCS could not check with the DVLA twice. Other checks had to be made to comply with the Practice Direction;

- DVLA data relates to a vehicle and is not provided as a verified service address. Further checks must be made if a PPC wishes to sue;

- a soft trace would have cost VCS as little as 28 pence in bulk (VCS do litigate in bulk);

- in 2022 the Government published the proposed Statutory CoP and PPCs were expected to comply with it by early 2023. And it includes a mandatory 'soft trace' requirement before litigation.  Whilst Judicial Reviews blocked it, the 2019 Act requires it, therefore the delayed Code is still coming in (after the General Election now) and the ONLY industry objections were money-related.  The rest of the Code was not challenged.  Thus, all parking operators knew that soft traces are mandatory.

-----------------

Remember to point out at the hearing that Elms Legal had already had a warning from CiLex not to mislead the courts with effectively fake Consent Orders: EXACTLY like the one that tricked this court into vacating a hearing.  What a waste of court time! If any party has been wholly unreasonable and vexatious in the course of this litigation, you can say it is VCS and their legal reps, which is why they should have to pay your costs.

Khayman

Thanks for that @Coupon-mad

It took me an age to find, but I believe this is the part you are referring to?

10. Action to recover unpaid parking charges

If a driver, keeper or hire company does not respond to a notice of parking charge or subsequent correspondence, or a parking charge has not been paid in full, reasonable endeavours - including contacting credit reference agencies to undertake a ‘soft trace’ - must be undertaken by the parking operator and/or its appointed debt recovery agent to establish the correct correspondence details of the driver, keeper or hire company before commencing enforcement action. Where a new address is discovered the notice of parking charge should be re-issued at the original rate but with a further 28 days from service for a response (payment or appeal).

So this CoP is currently withdrawn (and has been since June 2022, so it's nice to see the cogs of government working so swiftly and efficiently!  ) but from what you've said my understanding is that the objections to it are related to other aspects of the code, so I can argue that prior to withdrawal, and when it is inevitably (?) reinstated, the soft trace is mandatory, so in a way it is another example of the unreasonableness of the Claimant by not performing this soft trace purely because there is no legal reason to compel them. 

I will reiterate that the argument I am the one wasting court time is absurd simply because this whole farce has occurred because VCS did not bother to double check my address.

Coupon-mad

Yes you can argue that, and even if the Court is minded to ignore the pending statutory Code of Practice, never mind, because the CPRs require 'reasonable steps' to be taken and this Claimant took none.

Then they waited for you to discover the CCJ and when you didn't roll over and 'pay up' they mocked up a Consent Order and failed to the court it was only a draft (despite having an exact match warning from CiLex not to do so - a warning which is in evidence).

They absolutely misled the court and caused extra work and an unnecessarily vacated hearing that YOU had paid for.  This trail of behaviour beggars belief and this course of conduct MUST meet the bar of 'wholly unreasonable conduct', plain as day, and you should therefore be awarded full costs.

Khayman

So I finally had my hearing yesterday, and while I am loathe to spend a single moment recounting it, I have been doing so in my head ever since anyway.

In short:
1) Claim sent to the Small Claims track
2) Costs reserved for final hearing

The longer version:

We basically spent the entire hearing arguing about whether the Claimant had correctly served the claim. The judge was satisfied that service had been correctly undertaken. It was the judge's view that the argument that 'reasonable steps' be taken by the claimant only applied if the claimant had reason to believe that the address served was not correct, and that this required a 'positive action' before it becoming applicable.

In other words, my argument that they had not had a response from me at the address for over 2 months was not grounds to believe the address was incorrect (the judge literally argued 'lots of people ignore their post, so that's no reason to think the address is incorrect') and it was their view that the Claimant would effectively need to take some positive action to lead themselves to believe that the address was not correct, before then requiring to take reasonable steps to confirm the address. 

I obviously argued that this meant that despite it being impossible to guarantee that an address provided by the DVLA is correct at any given moment, due to the possibility that it is in the process of being updated (and the DVLA themselves stating they do not guarantee the data), the Claimant therefore is incentivised to take as little action as possible in order not to give themselves any reason to doubt the correctness of the information from DVLA. The judge basically concluded that because they requested the data from DVLA and the information is *supposed* to be correct, they should have no reason to doubt it and therefore service within the 4 months was satisfied.
I do not think I will ever be able to comprehend the logic the judge applied to come to this conclusion. 

So the claim was sent to Small Claims and I have been given a deadline of 9th July to send my draft defence. The final hearing will then be as early after 1st August as possible, and both parties to submit anything they wish to rely on by 14 days prior. The judge also allocated the final hearing to themself.

By the time we concluded that part of the hearing we had run out of time, so costs were very quickly covered. The judge was keen to split the costs into costs I wanted for the first hearing, and costs for yesterday's hearing which included the outragreous cost of the Claimant sending an advocate who didn't even have all the information about the situation and who literally just sat there and took minutes. Anyway, both the advocate and the judge agreed that the Claimant's costs were tied up in the findings of the costs for the original hearing, and it did at least sound like the judge was all but convinced my costs for the first hearing were owed due to the dodgy 'consent order' that resulted in it being vacated. 

So... I am incredibly despondent because I really thought it would all be over yesterday. I am not dealing with the stress and anxiety of this well, but hope that once I've calmed down a bit it will not all seem so bad.

I want to avoid having to take yet another day off work as this is simply not worth the lost income, and avoid as much as possible all the paperwork of filing a draft defence etc. so am willing to settle at this point. I am considering writing to VCS and saying I want to draw a line under the whole thing, and see if they will accept no costs on either side (I will obviously state that I am very confident that I will at least get my costs for the first hearing which will wipe out anything they are awarded from me, not to mention the time and costs of the final hearing on top). My concern is that VCS will be intransigent, even vindictive in their position and demand their costs on top of the original parking charge.
I am also aware, from things said here, of the practice of Claimants dragging things along till the last minute, only to discontinue, which would result in me having worked towards the hearing, suffered through all the stress and anxiety (I do actually suffer from depression and anxiety) only to end up with absolutely nothing. I would much rather end up with nothing now than later! This is also what makes me think they will not accept a 'no costs for either party' settlement as they know this will be hanging over me until the hearing and only they have the power to simply discontinue at the last minute if they really don't think they're going to get anything out of me.

I look forward to any and all thoughts on this outcome!

In the meantime I will be looking through the forum for draft defences, just so that I am ready to send something if and when the time comes, but also probably draft an email to VCS hoping to reach a settlement as early as possible. As I've said, taking more time off work and losing the income is making this less and less worth persuing to the point where even if I end up paying the parking charge, I'll be better off than coming out of the final hearing with much less than my total costs.