Please help to set aside CCJ in the UK

Coupon-mad

I think those POC are sufficient and the OP should only concentrate on the reasons to set aside the CCJ. 

danojs7

Thank everyone for your input.

Here is a draft of my skeleton argument. Please let me know your thoughts.

IN THE COUNTY COURT XXXX XXXX

Claim No. XXXXXXXX

BETWEEN:

XXXX XXXX (Claimant)

-and-

XXXX XXXX (Defendant)

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SKELETON ARGUMENT OF XXXX XXXX (Defendant)

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1.      Under CPR 13.2, the Court must set aside a judgment entered underpart 12 if judgment was wrongly entered. Given CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside.

2.      The Claimant has not adhered to CPR 6.9 (3) as they failed to show due diligence in using an address at which the Defendant no longer resides. At no time did the Claimant receive any response from the Defendant at the old address and therefore the Claimant had reason to believe that it is an address at which the Defendant no longer resides. The Claimant did not take reasonable steps to ascertain the address of the Defendant’s current residence.

3.      The DVLA address data is not given out as a service address and cannot be relied upon, which is why operators are required under the BPA Code of Practice to do a soft trace prior to litigation (costing as low as 29 pence and offered free by debt collectors connected to the parking industry). The Claimant is in breach of this Code of Practice and CPR 6.9 (3) as they have made no attempt to find the Defendant’s current address.

4.      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. 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 not know, nor be able to find that out.

5.      On XX February 2024 the Claimant’s solicitor (QDR) wrote to the Defendant stating ‘Further address checks were made the DVLA on XX March 2023 and the records were confirmed to be the same as they were at the time of contravention’. This is false as the Defendant sold the vehicle in XX December 2020. The KADOE rules allow only one keeper data enquiry per parking event breach (within 6 months of the event) not multiple further enquiries years later.

6.      Given that more than 4 months have passed from issue of proceedings and service of the claim was defective (i.e. it was never served). The Defendant submits that this claim is dead and the period for service cannot be extended by this application process. If the Claimant believes there is a cause of action, then the correct procedure would be to file the claim afresh and to the correct address after providing the Defendant with the information required under the pre-action protocol for debt claims. This should be issued to the correct address for service, which is XXXX XXXX.

7.      There are several authorities for this, including the judgment in Boxwood [2021] EWHC 947 (TCC)1 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 for service of a claim form.”

8.      In Vinos v Marks & Spencer plc [2001] 3 All ER 784 2 the Court of Appeal considered whether any extension of time should be granted under CPR 7.6 in circumstances where the defendant had been notified of the issue of a claim form, but the claim form had not been served within four months as required by CPR 7.5 and the application was made after expiry of that period. The court refused to grant relief on the basis that it did not have power to do so.

9.      In judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch) 3 (SEE APPENDIX_4_CROKE) the claimant was one day late in properly serving the Particulars of Claim to the Defendant and the claimant’s application for relief from sanctions was refused. In section 65 of the transcript of the trial Deputy Master Marsh stated “The defendants were entitled to know within the four-month period specified in the CPR whether a claim had been made against them and to be able to understand that claim. [...] Unless an extension of time is granted, the claim will cease to have any validity and will be struck out." 

10. In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) 4 (SEE APPENDIX_5_PIEPENBROCK) the High Court refused the Claimant’s application for a retrospective extension of time to serve a Claim Form after the Claimant failed to demonstrate they took all reasonable steps to serve the Claim form in the period of its validity.

“Ultimately, the problem was that the Claimant had made no attempt to serve in accordance with the rules…Although I sympathise with the Claimant that the consequences for him of the error of not validly serving the Claim Form will be serious, there is nothing that really separates his case from many others who have made similar mistakes when attempting to serve a Claim Form…I am afraid, in this case, the responsibility for the failure validly to serve the Claim Form rests solely with the Claimant’s side…

In light of my conclusions above, having refused the applications made under CPR 7.6, 6.15 and 6.16, there is not a residual self-standing power available under CPR 3.9 to relieve the claimant of the “sanction” that, as a result of his failure to validly to serve the Claim Form during its period of validity, it has now lapsed. The term “sanction” is inapt because it would, in theory, be possible for the Claimant to issue and validly serve a fresh Claim Form. The obstacle standing in the way of a claim is not any sanction imposed by the Court but the fact that the limitation period for defamation and malicious falsehood has expired…

Finally, the Claimant seeks an order under CPR 3.10 remedying his error in not validly serving the Claim Form. The Defendants submit that CPR 3.10 cannot rescue the Claimant. This general provision does not enable the Court to do what CPR 7.6(3) forbids: Vinos -v- Marks & Spencer plc [2001] 3 All ER 784; [2001] CP Rep 12 [20].”

Mr Justice Nicklin concluded, “The Claim Form was not served during its period of validity. In consequence, the Court has no jurisdiction over the Claimant’s claim. It follows that I should also formally dismiss the Claimant’s application for summary judgment.”

 

11. Conclusion: ?Not entirely sure what to put for this?

I plan on referencing all the case laws stated above at the end with URL links. Is this correct?

Coupon-mad

Remove the full stop AND these 4 words:

. The Defendant submits that 

No 'conclusion' nor signature goes in a skelly. Just the date at the end.

Yes to URLs as footnotes but I thought @Zbubuman had a bit more case law in his final submission, than just those?

danojs7

Re-read that and it didn't make sense! Thank you @Coupon-mad.

I have now added the following:

11. There are also case laws making reference to the failures of parking companies to correctly ascertain  the defendants . Of note, in Collier v Williams [2006] 1 WLR 1945 (CA) LJ Dyson said  
  
"What state of mind in the server is connoted by the words "last known"? … As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word "known". In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, i.e. knowledge which he could have acquired exercising reasonable diligence. We arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments."  

 

12. The same sentiment was echoed by:  HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)  

I'm not sure whether to include: HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012].  This is basically stating the court rejected the argument which the defendant was not properly served saying his 'last known address' was valid. However, it did set aside the judgment due to the existence of a defense with realistic prospects of success. I am still feeling 'iffy' on my prospects for defending the claim and suppose I need some reassurance in case I am questioned on this by the judge! Should I be including this in me skeleton argument? If it came to CPR 13.3 then my defense is essentially about:

• Claimant failing to meet Notice to Keeper obligations of Schedule 4 of the POFA 2012 (Still don't get which part it is referring to!)
• Lack of adequate notice of the parking charge on clear signage
• Putting claimant to strict proof on evidence of landowner authority or a legal contract, as required by BPA Code of Practice

danojs7

Also just mindful of how long my skeleton argument is now. Although still shorter than my WS.

Coupon-mad

This needs the word 'address' at the end:

11. There are also case laws making reference to the failures of parking companies to correctly ascertain  the defendants . 


Leave out the one you are doubtful about and you could cut down or remove entirely some/all of the quotes and just put 'see paragraph x footnote 1'.

After all, you are linking the judgments to be read by the Judge. 

danojs7

Thanks @Coupon-mad.

Just to clarify... at the end of the my skeleton, I have put a heading 'Footnotes' and numbered this.

E.g.

1. https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf (BPA AOS Code of Practice)
2. https://www.bailii.org/ew/cases/EWHC/TCC/2021/947.html [Boxwood 2021 Case]
3. https://lexlaw.co.uk/wp-content/uploads/Dr-Theodore-Piepenbrock-v-Associated-Newspapers-Limited-DMG-Media-of-Daily-Mail-General-Trust-plc-The-London-School-of-Economics-and-Political-Science-Joanne-Hay.pdf [Piepenbrock 2020 Case]

Then in the main text I would just cite [See paragraph 24.1c of footnote 1] or [See paragraph 65 and 67 of footnote 3].

Is this correct? Is it worth doing this rather than typing it all out?

danojs7

I am just googling the relevant case transcripts and then copy and pasting the URL (and will also take printed copies with me to the hearing).

Just wanted to double check this is all the right format? Unless there is a specific website I should be using for the case transcripts mentioned in 7-11 of my skeleton.

Coupon-mad

Those transcripts look fine.

danojs7

Could anyone give me some advice about the hearing? I know I will be required to present my case to the judge. I was just planning on simply going through what is already written on my skeleton.

Am I required to go through all specific case laws in detail? I'm a bit worried about this, just in case it appears I don't know what I am talking about...

Case laws: Boxwood [2021], Vinos v Marks & Spencer [2001], Piepenbrock [2020] are all claims that were served late and highlight that period can not be extended. However, in my case I am arguing the claim was not served properly at all in the first place (as I never received the claim form).

Case laws: Collier vs Williams [2006] and MB Gardens Building [2014] refer to failures of parking companies to correctly ascertain defendant's address. So I believe this is worth mentioning.

Could people just clarify this for me? I just don't want to be stumped when judge is questioning me about it at the hearing!