CCJ re Stansted Mcdonalds - Help Please *CLAIM DISMISSED*

1505grandad

Another heads-up  make sure the SoT states the correct doc.

Blueshift313

Thanks Coupon, that's all really helpful. The SAR information received from MET states:

NOTES
Note ID: XXXXX
Keeper details imported from DVLA via ZatDVLAMake = VOLKSWAGENModel = XXXXXXXXXX
Date 15/08/2018 05:23:14

I assume that also confirms when the request was made, as it is an automated system? Or I suppose my text should read: *This information was received 15th August 2018* as that's what is known for sure.
1505grandad, I will change the doc ref'd in the SoT to witness statement.
Would it be beneficial to include the sections on "Exaggerated claim and market failure currently examined by the Government"? ie disproportionate fixed sums, etc.
I'll have another look through more threads on CCJ set asides for referencing these other cases.
And lastly, sorry, do all cases referenced need to be attached as their transcripts with the N244?

Coupon-mad

No it doesn't confirm the date the DVLA handed over your data.  Just put 'early August 2018'

Yes attach the transcript of Chan (because you REALLY want that recent appeal in the Judge's face!) but you should be OK with URL links to the transcripts of Boxwood and the others, as the 4 months dead argument is flimsier. Not so vital.

Would it be beneficial to include the sections on "Exaggerated claim and market failure currently examined by the Government"? ie disproportionate fixed sums, etc.

No.  You weren't meant to be reading defences.  Only read recent CCJ set aside threads for now.

Show us your next draft.

Blueshift313

See below, amendments in bold.  Will the URLS for Boxwood etc. be inserted in the WS text itself and not as separate Appendices?

Section 4. DRAFT ORDER

Upon reading the defendant’s application dated XXX

It is ordered that:

1. The default judgment dated 16th October 2023 be set aside on the grounds that the defendant has not been validly served, as the claim form was not received.

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

Section 10. WITNESS STATEMENT

1. 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.

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.

2. I was the registered keeper of the vehicle with registration XXXXXXX at the time of the alleged event.

3. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 16th October 2023. I am aware that the Claimant is MET Parking Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice from 17th August 2018.

4. I learnt of the existence of this claim on 4th December 2023 when I received a letter dated 27th November 2023 from the Claimant requesting payment of the judgment detailed in paragraph 3, at the current address at which I reside. [EXHIBIT A – Notice of unpaid CCJ]

3. I had previously changed address on 7th August 2023 and promptly updated personal details following. [EXHIBIT B – bank/credit card statements]

4. A County Court Claim form was never received at either address, and if it had, I would have acted promptly to respond with the submission of an Acknowledgement of Service.

5. I therefore respectfully request that the Court sets aside the judgment in this claim and allows 14 days for me to submit my defence.

PRELIMINARY MATTER: THE CLAIM SHOULD BE STRUCK OUT

6.  I would like to draw the attention of the court to the fact that there is now a persuasive Appeal judgment to support striking out the claim.  I believe that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

7.  A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16.  On the 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, the Court should strike out the claim, using its powers pursuant to CPR 3.4. The Chan judgment was made in a County Court Judgment set aside application case, which had been wrongly refused by the first Judge. [EXHIBIT C – CEL v Chan transcript]

8. 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 should be struck out and the period for service cannot be extended by this application process. I have no details of this claim beyond a 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 correct address, after presenting me with the information required under the pre-action protocol for debt claims­­­­­.

9. 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. [INSERT - Boxwood 2021 transcript URL]

10. 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.

11. In judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch) 3 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." 

12. In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) 4 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.”

FACTS AND SEQUENCE OF EVENTS

13. The vehicle with registration XXXXXXX, of which I, the Defendant, was the registered keeper, was sold on 28th January 2022.

14. 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. MET Parking Ltd. received this information early August 2018. [EXHIBIT E – SAR response]

15. At no point prior to receiving the Notice of Debt Recovery did I make contact with the Claimant or DCBL.

16. The fact that there was no response from myself to a series of letters sent to my previous address should have alerted the Claimant to the possibility that I was not residing there.  It is evident that the Claimant failed to carry out a soft trace prior to filing the claim. This action was necessary to align with the regulations outlined in the British Parking Association (BPA) Approved Operator Scheme Code of Practice - Clause 24.1c: “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.”

17. The absence of a proactive address search before the claim contradicts the ease with which DCBL promptly traced my current address immediately after the County Court Judgment was issued. This neglect raises concerns about the thoroughness of any address search performed before filing the claim.

18. The claim form was not served at my current address, and as a result, I was unaware of the Default Judgment. This constitutes a breach of CPR 13.2(a), as the claim form was never served to my current address. Due to this, the judgment was wrongly entered as I was unable to submit an acknowledgement of service in the absence of notification of the case.

19. 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 must be set aside. In the alternative, CPR 13.3 applies due to the circumstances, which represent good reasons to set the CCJ aside, and in view of the fact that the Defendant acted within a reasonable time period and has good prospects of defending the claim.

20. According to publicly available information, my circumstances are far from 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.

21. 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.

22. I learnt of the existence of this claim on 4th December 2023 when I received a letter from Direct Collection Bailiffs Ltd dated 27th November 2023 requesting payment of the judgment detailed in paragraph 3, at the current address at which I reside.

23. On the 7th December 2023, I contacted the Civil National Business Centre to obtain relevant information relating to this default judgement.

24. On XX January 2024 I submitted my case in order to set-aside this judgment and fairly present my case.

 

STATEMENT OF TRUTH:

 I, XXX, the Defendant, believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Blueshift313

I've just had another thought, would it be a beneficial to include that the defendant had been returning to the previous address every month since moving out to socialise and collect mail, up to and including this month, and there was no CCC form at the property. Although these visits can't be proven except through a few text messages...

Coupon-mad

No I would leave that out, as this is getting a bit too long.

Remove this from 5 because you don't want time to defend! You are asking the court to strike out the claim:

and allows 14 days for me to submit my defence.

Remove 13 (irrelevant).

What I don't understand is that you only moved in Aug 2023 so how come this all flew past you in the first 6 months of last year?  Since 2018 you must have had a shedload of letters including a flurry of new DCB Ltd £170 demands in 2023. 

Why didn't you respond?

Or did you receive nothing because in 2018 there was a third address in play and you've moved twice since the PCN?

You are changing your V5C address every time you move - yes?  I'm not talking about your driving licence.

Blueshift313

Since receiving the original PCN the defendant changed address twice, including in August 2023. In total they've received not many more than a dozen letters altogether over the five years. 
The original NTK was addressed in their name, and all correspondence has followed similarly, however no letters, calls, or emails had ever been sent back to confirm who was driving on the day of the contravention. The defendant made no response on the assumption that it was better not to communicate and risk implying fault, and only to communicate if they escalated. Sod's Law of course that it escalated right when they moved address again, five years later. Would it have been better to respond?
The V5C was passed on when the car was sold in 2022, and had been updated to the correct address at the time.

Thanks so much for the feedback so far, are you thinking it's pretty much ready for submitting?

Coupon-mad

Yes you clearly should have told them your new address because a court claim was likely.

I'm constantly saddened here to read (fairly regularly) that good people receiving these pre-action letters just move house without telling the aggressor, then wonder why they got a CCJ.

The claim will have gone to the DVLA address from 2018 that they reverted back to.  They will have done this deliberately, rubbing their hands with glee, because you didn't confirm which address was right and get the two old addresses deleted.

Show us the latest draft to review tomorrow.

Blueshift313

Wait sorry now I'm confused, the Newbies thread says "If you have letters from any debt collector such as Debt Recovery Plus or Zenith and are on the face of it, too late to 'appeal', then ignore them."
This is all that's been received, until the notice of debt recovery at the current address...

Coupon-mad

But you moved - twice - and didn't tell them. Obviously that's unsafe because the NEWBIES thread also tells you (at post 2) that these cases result in court claims.