Please help to set aside CCJ in the UK

Coupon-mad

danojs7 said:

4. Should I file a SAR?

No.

Better that the Particulars of Claim (have you been emailed a copy by the CNBC yet when you rang up and asked?) are vague, because you should also be using and attaching the transcript for CEL v Chan.

This one has a suitable WS to adapt, which includes Chan and has a better Draft Order wording.  You don't really want to be put to the trouble of defending a badly pleaded claim you want the Judge to strike it out, like in Chan.

https://forums.moneysavingexpert.com/discussion/comment/80505893#Comment_80505893

Typo here:
EURO CAR PARKS LIMITS LIMITED (Claimant)

danojs7

Strike it out because of the 4 month dead rule?
Could you please explain this rule to me?

Also don’t know if I should put this because I honestly cant remember whether I ever rang the claimant in the last 3 years. I’m 99% sure I haven’t!!

18.  Clause 24.1c of the BPA Approved Operator Scheme Code of Practice (Version 8 – January 2020) states “Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the contact details for the person you are writing to are correct.”

Coupon-mad

danojs7 said:

Strike it out because of the 4 month dead rule?
Could you please explain this rule to me?
I don't quite understand the '4 month dead' rule. Would this apply in my case?
My PCN was in 2020. Changed address twice. Court claim September 2023. Judgement October 2023. Found out December 2023.

What date was the claim form in September?  Are we past 4 months from that date yet?

Also don’t know if I should put this because I honestly cant remember whether I ever rang the claimant in the last 3 years. I’m 99% sure I haven’t!!

18.  Clause 24.1c of the BPA Approved Operator Scheme Code of Practice (Version 8 – January 2020) states “Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the contact details for the person you are writing to are correct.”

Not sure what you mean.  Irrelevant whether you rang.  Just include that rule.  They HAD to trace you.

danojs7

Claim form was issued on the 6th September. So yes we would be 4 months away. As it was never ‘served’ because I never received it. Is this right? Sorry all the terminology is quite confusing. 

From the CNBC I have received some dates and my judgement letter. Are these the particulars of claim?

Not sure whether to include this as uncertain whether it applies to Euro Car Parks:

21.  The system used by the Claimant is called 'KADOE' (Keeper On Date of Event) and provides a brief 'snapshot in time' address to enable a parking firm to send a Notice. Operators are only allowed to ask the DVLA once, hence the code of practice requires reasonable steps are taken to check address details are current before litigation. Even if a motorist later updated a VC5 logbook with a new address (or if the DVLA failed to note a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.

Found the Chan transcript and will bring it with me in a separate document. 

Coupon-mad

So yes we would be 4 months away. As it was never ‘served’ because I never received it. Is this right?

Yes.  So the argument does apply but it's a very technical one, so put CEL v Chan higher up than that.  You can't just 'bring it with you'. It must be an appended Exhibit now with your WS, like your other evidence (of moving house).

"Not sure whether to include this as uncertain whether it applies to Euro Car Parks:"

21.  The system used by the Claimant is called 'KADOE' (Keeper On Date of Event) and provides a brief 'snapshot in time' address to enable a parking firm to send a Notice. Operators are only allowed to ask the DVLA once, hence the code of practice requires reasonable steps are taken to check address details are current before litigation. Even if a motorist later updated a VC5 logbook with a new address (or if the DVLA failed to note a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.

Yes it does apply of course.  They HAD to take reasonable steps to find you, not rely on a DVLA address.

"From the CNBC I have received some dates and my judgement letter. Are these the particulars of claim?"

No,  Phone up to get them emailed to you on the spot tomorrow morning first thing, 8.30am if they will answer.

danojs7

I will ring them first thing, but presumable the particular of claims won't be very detailed?

I have drafted a better version. Let me know what you think. And thank you again for all your amazing help!

____________________________________________________________________________________________

WITNESS STATEMENT

I am XXX and I am the defendant in this matter. This is my supporting statement to my application dated XXX requesting to:

 

a. Set aside the default judgment dated XX October 2023 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. Order for the claimant to pay the defendant £275 as reimbursement for the set aside fee.

DEFAULT JUDGMENT

 

1. I was the registered keeper of the vehicle at the time of the alleged event.

2. I understand that the Claimant obtained a Default Judgment against me as the Defendant on XXX. I am aware that the Claimant is Euro Car Parks Limited, and that the assumed claim is in respect of unpaid Parking Charge Notice from XX May 2020

3. The claim form was not served at my current address, and I thus was not aware of the Default Judgment until carrying out a credit check with Experian on the XX December 2023.

4. The address on the claim is XX. I moved out of this address on the XX March 2023 and oved into XX on the same date. In support of this I can provide bank statements, driving license and emails showing when I made the application to change my driving license and GMC registration. I also

 

5. I subsequently moved address again to XX on XX October 2023. I can provide utility bills, council tax, bank statements and mortgage statements. I also can provide my Experian Credit Report which was carried out on the XX December 2023 which clearly shows credit account information and searched done at my recent addresses.

6. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis of the below:

 

SEQUENCE OF RECENT EVENTS

7. I first discovered there was a default County Court Judgement against me when I checked my credit file on the XX December 2023.

8. On the XX January 2023, after the holidays, I contacted the Civil National Business Centre to obtain relevant information relating to this default judgment.

9. On XX XX 2023 I submitted my case in order to set-aside this judgment and fairly present my case. I acted promptly to resolve this matter once it came to my attention

10. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim. I was therefore denied the opportunity to defend the claim.

11. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence, despite having 10 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

12. At no time did the Claimant receive any response from me at the old address and therefore the Claimant had reason to believe that it is an address at which I no longer reside. It was improper for the Claimant to rely upon it for service.

 

13. Under CPR 13.2 The court must set aside a judgment entered under part 12 if judgment was wrongly entered. Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside.

 

14. The Claimant is an approved operator of the British Parking Association (BPA). The BPA has anticipated that issues will arise where operators do not take reasonable teps to ascertain the correct address.

 

15. The Claimant failed to take reasonable endeavors to ascertain my correct current address prior to issuing proceedings and is therefore in breach of the Code of Practice.

 

15. Clase 24.1c of the BPA Approves Operator Scheme Code of Practice (version 8 – January 2020) states “Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavors to ensure that the contact details of the person you are writing to are correct.

 

16. The system used by the Claimant is called KADOE (Keeper On Date of Event) and provides a brief ‘snapshot in time’ address to enable a parking firm to send Notice. Operators are only allowed to ask the DVLA once, hence the code of practice requires reasonable steps are taken toc heck address details are current before litigation. Even if a motorist later updated a V5C logbook with a new address (or if the DVLA failed to note a change in a timely manner, which is reportedly common) a parking operator will now know, nor be able to find out.

 

17. I, the Defendant, was ‘there to be found’ for the sake of a 29 pence bulk Experian trace or similar very inexpensive and immediate credit reference agency address check. I would then have been notified of this judgement and could have taken action to prevent it.

 

18. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system across the country.

 

CIVIL PROCEDURE RULES 13.3

 

19. In the alternative, I submit that CPR 13.3 applies and there are very good reasons to set aside this claim. I have good prospects of defending a claim, if served with one, however I have seen no evidence, basis, nor detailed particulars of claim, and the Claimant should be required to fil afresh if they believe they have a cause of action.

 

20.  If filed afresh I would anticipate a defence including submission on:

 

a.    The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the ­Protection of Freedoms Act 2012

 

b.    Lack of adequate notice of the parking charge on clear signage, as acknowledged by the Supreme Court in ParkingEye Limited v Beavis [2015] UKSC 67

 

c.    Putting Claimant to strict proof on evidence of landowner authority or a legal contract, as required by the BPA Code of Practice

 

NO SERVICE WITHIN 4 MONTHS OF ISSUE

 

21. Given that more than 4 months has passed from issue of proceeding and service of claim was defective (as it was never served), I submit that this claim is dead and the period for service cannot be extended by this application process. I have no details of this claim beyond very brief particular, therefore, if the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing me with the information required under the pre-action protocol for debt claims­­­­­. This should be issued to my correct address for service which is XXXXX

 

22. There are several authorities for this, including the judgment in Boxwood [2021] EWHC 947 (TCC), which is a reminder of the strictness of the requirements of CPR 7.6 and how difficult it is to use other parts of the Civil Procedure Rules to rectify a failure to serve the claim form within the requisite period. ‘A claimant is not entitled to rely on the wide, general powers under CPR 3.10 or CPR 3.9 to circumvent the specific conditions set out in CPR 7.6(3) for extending the period of for service of a claim form.

 

INADEQUATE PARTICULARS OF CLAIM

 

23. In the alternative I submit that there is now a persuasive Appeal judgment relating to similar particulars of claim and the same Claimant, which supports striking out the claim. The Claimant has made little attempt to comply with the Practice Direction instead utilising unspecific, auto-fill wording for their particulars of claim.

 

24. In Civil Enforcement Limited v Chan (Ref. E7GM9W44) this same Claimant was found to have failed to comply with CPR 16.4(1)(e) and Practice Direction Part 16.7.5 through inadequate particulars of claim. On 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4.

 

25. According to publicly available information, my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses of results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses."

The Minister added, "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.” Furtherance to points raised in 1.3 above.

 

COSTS

1.    Considering the above, I was unable to defend this claim. I believe that the default judgment against me was issued incorrectly and thus should be set aside.

 

2.    I ask the Court:

 

a.    to order the reimbursement of the fee of £275 from the Claimant should this application successfully see the claim struck out, or in the alternative

 

b.     if the claim is not struck out, to Order that the Claimant serve full particulars and evidence of the term, photographs of the signage and to specify the alleged breach and basis for alleged liability, with the application and hearing attendance costs being reserved, and that in the event of discontinuance after the judgment is set aside, the Claimant must reimburse (within 7 days of the date of discontinuance) the Defendant's costs as they stand after the first hearing 

 

 

DRAFT ORDER

CLAIM No: XXX
BETWEEN:
EURO CAR PARKS LIMITS (Claimant)
-- and --
XXX (Defendant)
______________________________________________
DRAFT ORDER
______________________________________________

UPON reading the defendant’s application dated XX January 2024

 

IT IS ORDERED THAT:

 

1. The default judgment dated XX October 2023 be set aside.

 

2. The claim is hereby struck out due to the claim form having not been served within 4 months of issue.

OR

The claim is hereby struck out due to the Claimant's failure to particularise the contractual term relied upon or the alleged breach, this being the same Claimant and inadequate Particulars of Claim as seen in Civil Enforcement v Chan (a persuasive recent appeal relating to a mirror image CCJ set aside case)

 

3. The Claimant do pay the Defendant’s costs of this application of £275 on an indemnity basis.

 Questions.

1. How is the structure? How high should I put 24? Should I put 25 somewhere else?

2. How do I send all my evidence. Just as separate attached documents labelled 'Exhibit A'?

3. For 21 I am still confused what this means. How can I argue lack of adequate notice of the parking charge on clear signage. I can't even remember what it looked like where I parked!

4. Can I ring CNBC tomorrow. Obtain the particulars of claim. Pay the fee for N244. Then come home and send the actual form with all the evidence? I have extremely busy work days and will finish late after the courts close. I am conscious of doings things promptly as it will 2 weeks from when I found out about the judgement this Saturday!

Castle

Para(s) 8 & 9 of events should read 2024.

danojs7

Rang and obtained my particulars of claim:

THE CLAIMANTS CLAIM IS FOR AN OUTSTANDING PARKING CHARGE ISSUED TO VEHICLE XXXXXXX WHENPARKED AT XX XX XX. THE SITE IS MANAGED BY THE CLAIMANT. THE DEFENDANT IS THE KEEPER OF OR THE DRIVER NAMED IN ACCORDANCE WITH SCHEDULE 4 OF PROTECTION OF FREEDOM ACT 2012 OF THE VEHICLE. VEHICLES PARKING AT THE SITE ARE SUBJECT TO THE PARKING RESTRICTIONS AND TERMSAND CONDITIONS WHICH ARE SET OUT ON SIGNS AT THE SITE AND FORM PART OF A CONTRACT BETWEEN THE DRIVER OF THE VEHICLE AND THE CLAIMANT.ON XX 05 2020, THE VEHICLE WAS PARKED AT THE SITE IN BREACH OF THE CONTRACT, THE CONTRAVENTION BEING THE PD PERMIT PURCHASED DID NOT COVER THE DATE AND TIME OF PARKING. BY ENTERING THIS CONTRACT THE DEFENDANT AGREED THAT THEY WOULD BE LIABLE FOR £100.00 PARKING CHARGES, PLUS ADDITIONAL CONTRACTUAL CHARGES INCURED BY THE CLAIMANT FOR THE COLLECTION OF THE DEBT PURSUANT TO THE TERMS AND CONDITIONS.

danojs7

Going to send this tonight so any last minute advice would be much appreciated! (I know there are a few typos which I will correct)
Just gathering all my evidence together now and will attach these in separate documents titled 'Exhibit A' etc

1505grandad

".... this being the same Claimant and inadequate Particulars of Claim as seen in Civil Enforcement v Chan ..."

That is not correct.