CCJ re Stansted Mcdonalds - Help Please *CLAIM DISMISSED*

Blueshift313

Latest draft below

Section 3. An order that the Judgment in Default be Set Aside pursuant to CPR 13.2, alternatively 13.3, and the defendant be allowed to file a defence in the case. The defendant only discovered the judgment on receipt of a Notice of Debt Recovery at a new address on 4th December 2023.

 

Section 4. DRAFT ORDER

IN THE XXXXXXXXX COUNTY COURT

CLAIM NO. XXXXXXXX

BETWEEN:

CLAIMANT MET PARKING SERVICES LTD

and

DEFENDANT XXXXXXX

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

IN THE XXXXXXXXX COUNTY COURT

CLAIM NO. XXXXXXXX

BETWEEN:

CLAIMANT MET PARKING SERVICES LTD

and

DEFENDANT XXXXXXX

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 Services 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 – Unpaid CCJ]

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

6. 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.

7. I therefore respectfully request that the Court sets aside the judgment in this claim.

 

PRELIMINARY MATTER: THE CLAIM SHOULD BE STRUCK OUT

8.  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.

9.  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]

10. 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.

11. 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]

12. 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.

13. 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." 

14. 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

15. 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 D – SAR response]

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

17. 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.”

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

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

25. 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.

 

Coupon-mad

Remove 15 and 16 and the unnecessary SAR stuff.  It is obvious they first got DVLA data in 2018.  I think this will read better without those paragraphs as your next ones are more powerful.

Also I didn't see you point out that Chan was also about CCJ set aside case, where the first Judge fell into error by not allowing the application.

Blueshift313

Thanks Coupon, I've removed sections 15 and 16, and you'll see a line above in section 9 stating "The Chan judgment was made in a County Court Judgment set aside application case, which had been wrongly refused by the first Judge."
Maybe this would be better as a separate paragraph to help highlight?

If I may, I don't think many people find this stuff obvious, and while this forum is a wellspring of invaluable knowledge (mostly due to the efforts of yourself), and is 99% clear on thorough reading, that bit about ignoring debt collection letters in post #4 could maybe be caveated; that it doesn't mean complete radio silence, but that there is a minimum level of contact which should be made such as when the keeper changes address, to ensure this current situation doesn't happen.

Coupon-mad

Blueshift313 said:

Thanks Coupon, I've removed sections 15 and 16, and you'll see a line above in section 9 stating "The Chan judgment was made in a County Court Judgment set aside application case, which had been wrongly refused by the first Judge."
Maybe this would be better as a separate paragraph to help highlight?

If I may, I don't think many people find this stuff obvious, and while this forum is a wellspring of invaluable knowledge (mostly due to the efforts of yourself), and is 99% clear on thorough reading, that bit about ignoring debt collection letters in post #4 could maybe be caveated; that it doesn't mean complete radio silence, but that there is a minimum level of contact which should be made such as when the keeper changes address, to ensure this current situation doesn't happen.

Fair points.  I will be re-hashing the NEWBIES thread this year when the Government finally implement the statutory Code, because EVERYTHING will change.

Yes I would put that as a separate paragraph and add 'therefore it is on point, and persuasive for my case'.

Blueshift313

Great thanks. I've inserted the below.

10. The Chan judgment was made in a County Court Judgment set aside appeal case, which had been wrongly refused by the first Judge, therefore it is on point, and persuasive for my case.

I feel like this is ready for submitting? I'll supplement the N244 with the WS as a pdf, and the referenced exhibits. I assume the claim particulars (statement of case) are necessary as they are referenced in the WS too?

Coupon-mad

No I would not include the POC.  The Judge can see that on the file anyway.

The WS is saved as a PDF.  Don't forget the Draft Order (a separate sheet, Word Doc).

Blueshift313

OK so I am emailing the N244 bundle to the CNBC this evening, do I need to separately email a copy to DCBL like I would if I was using the postal service, or does the CNBC pass this on to them?

KeithP

Blueshift313 said:

OK so I am emailing the N244 bundle to the CNBC this evening, do I need to separately email a copy to DCBL like I would if I was using the postal service, or does the CNBC pass this on to them?

Send the one email to the two addressees.
That way if it reaches one recipient, it will surely reach the other - and of course they both know that they have both received it.

Blueshift313

Hold the phone, while reviewing all the info last night before submitting I realised that I never shared the POC on here, so see below. I now need to remove section 8 re unspecific wording, but I'm not sure whether the Chan argument still applies? It states that the defendant agreed to pay the PCN within 28 days (although no agreement was ever made), but doesn't detail what the original breach of contract was...

Particulars of claim: 1. THE DEFENDANT(D) IS INDEBTED TO THE CLAIMANT (C) FOR A PARKING CHARGE(S) ISSUED TO VEHICLE XXX AT (346) SOUTHGATE PARK, STANSTED, CM24 1PY
2. THE PCN DETAILS ARE 15/07/2018, XXX
3.THE PCN(S) WAS ISSUED ON PRIVATE LAND OWNED OR MANAGED BY C. THE VEHICLE WAS PARKED IN BREACH OF THE TERMS ON CS SIGNS (THE CONTRACT), THUS INCURRING THE PCN(S).
4. THE DRIVER AGREED TO PAY WITHIN 28 DAYS BUT DID NOT. D IS LIABLE AS THE DRIVER OR KEEPER. DESPITE REQUESTS, THE PCN(S) IS OUTSTANDING. THE CONTRACT ENTITLES C TO DAMAGES. AND THE CLAIMANT CLAIMS
1. £170 BEING THE TOTAL OF THE PCN(S) AND DAMAGES.
2. INTEREST AT A RATE OF 8% PER ANNUM PURSUANT TO S.69 OF THE COUNTY COURTS ACT 1984 FROM THE DATE HEREOF AT A DAILY RATEOF £0.01 UNTIL JUDGMENT OR SOONER PAYMENT.
3.COSTS AND COURT FEES

1505grandad

"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)."

Please make sure that any c & p is relevant to your case  -  because that wording is obviously not true.