CCJ discovered from CP PLUS LTD T/A GROUPNEXUS

Tristesse1337

Thanks I've updated to this:

1.       The Claimant served the claim to an old address. The Claimant had a duty to take reasonable steps to check for the correct address, in accordance with the BPA Code Of Practice (January 2020 section 24.1c) and CPR 6.9, as more than 12 months have passed since the PCN on 16th September 2018 and the claim on 2nd September 2021.

This section states:

'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.'

Should I include the extract? Also I have quoted the 2020 revision which is after the PCN was issued but prior to the claim so assume this is ok? If not I will include the previous version of the code of conduct but the wording hasn't changed.

Coupon-mad

And remove para 10 (repetition).

Don't write about assuming the logbook was updated.  The logbook is irrelevant once they decided to litigate, because the BPA CoP requires the operator to do credit reference 'soft search' for a newer address (costs 28pence in bulk!). 

You must attach NOW, your exhibits to prove you moved & were there to be found (bank statements, driving licence, phone contract letter, utility bill, new tenancy letter, etc.).

I don't like this extreme delay so change:

2.       I was first aware of the existence of this claim on the 4th July 2023 when I checked my Credit File. I immediately emailed CCBC (CCBC@Justice.gov.uk) and received a reply on 17th January 2024 providing details of the judgement.

to

2.       I was first aware of the existence of a possible CCJ when I checked my Credit File in 2023. I thought this was an error, so I immediately emailed the CCBC to find out about this supposed CCJ (as I had no details of it at all) and finally received a reply on 17th January 2024 providing details of the judgment, which was the first time I knew anything about it.


You need to make it clear near the top that you are applying for an order to set aside the CCJ under CPR 13.2 (a mandatory set aside for the court, given the indisputable fact that this claim was not served).  And for the claim to be struck out in view of the wholly inadequate POC, following the persuasive authority in another recent CCJ set aside case, Civil Enforcement v Chan (see exhibit number xx1).

In the alternative, an order under CPR 13.3 setting aside the CCJ for other good reasons (in recognition that I have been denied a fair opportunity to defend it but have good prospects of doing so) and ordering the claim to be served with full and better particulars, and then allowing the Defendant to defend it.

Tristesse1337

Thank you, I have made those amendments, just checking through and then I will post up the full thing with changes made.

I have tenancy letters and bank statements covering all of the time I have been out I'll PDF these now ready to go with the application

Coupon-mad

And Civil Enforcement v Chan & other judgments as a numbered exhibit, link here:

https://forums.moneysavingexpert.com/discussion/comment/80538980/#Comment_80538980

Tristesse1337

Thanks CEL vs Chan added and the judgement saved as an exhibit the link you sent is great I've just had a read through but I can't see who the defendant name is so I've saved it as 'EXB4 - UKPCL vs Unknown' and have added it to my statement in the same section as the Chan judgement if that makes sense?

Tristesse1337

Righto updated draft below, one question though, I'm making the case that the claim cannot be resurrected as 4 months passed since it was issued and it was never received but also making the case that the POC is a load of !!!!!! (which it is) and therefore would be contested, is that not giving the claimant my defence up front should the judge decided not to strike it out?

Note - I have removed the section from 'CLAIM IS DEAD AS MORE THAN 4 MONTHS HAVE PASSED FROM THE ISSUE DATE OF PROCEEDINGS' as I have not changed this from previous and the word count to post has been exceeded.

Case number

xxxxxxxxxxx

WITNESS STATEMENT

I, xxxxxxxxx of xxxxxxxxx, will say as follows:

1.       I am the Defendant in this matter, and I make this witness statement in support of my application to set aside the County Court Judgment (CCJ) entered against me on 15th September 2021, in default due to a defective service of Claim.

2.       I was first aware of the existence of this claim when I checked my Credit File in 2023. I immediately emailed the CCBC to find out about this supposed CCJ (as I had no details of it at all) and finally received a reply on 17th January 2024 providing details of the judgment.

3.       The Claimant served the claim to an old address. The Claimant had a duty to take reasonable steps to check for the correct address, in accordance with the BPA Code Of Practice (January 2020 section 24.1c) and CPR 6.9, as more than 12 months have passed since the PCN on 16th September 2018 and the claim on 2nd September 2021.

4.       I have not received any correspondence or notice regarding this matter until I became aware as per paragraph 2 above.

5.       The claim was issued on 2nd September 2021 and more than four months have passed since then, during which time I have not been aware of the claim or the CCJ. As per CPR 7.5, the claim should now be dismissed.

6.       I believe that I have a strong defence to the claim, and should it not be dismissed, I wish to have the opportunity to defend it properly as per CPR 13.3.

7.       I have set out the grounds for my application in the attached draft order.

 

8.     I am applying for an order to set aside the CCJ under CPR 13.2 (a mandatory set aside for the court, given the indisputable fact that this claim was not served).  And for the claim to be struck out in view of the wholly inadequate POC, following the persuasive authority in another recent CCJ set aside case, Civil Enforcement Limited v Chan case number E7GM9W44 (see exhibit number EXB3).

9.     In the alternative, an order under CPR 13.3 setting aside the CCJ for other good reasons (in recognition that I have been denied a fair opportunity to defend it but have good prospects of doing so) and ordering the claim to be served with full and better particulars, and then allowing the Defendant to defend it. If the claimant does not include better particulars of claim the defendant will request the claim is struck out as per the example in section 8 above and another recent example claim number K2KF63F7 (EXB4)

THE CLAIMANT FAILED TO SERVE THE CLAIM

10. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 15th September 2021. I am aware that the Claimant is CP PLUS LTD T/A GROUPNEXUS and that the assumed claim is in respect of an unpaid Parking Charge Notice.

11. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence." The Claimant, having obtained a previous address from the DVLA on an unknown date assumably around the date of the PCN issue being 16th September 2018 and having received no response, did not perform the requisite "reasonable diligence" required to find my correct address to serve the claim form in September 2021.

12. The address on the claim is xxxxxxx. I moved to my current address at xxxxx in February 2018 and prior to that resided at xxxxxxxx from January 2017 to January 2018 In support of this, I can provide scanned copies of tenancy agreements. I have not lived at xxxxxxx since January 2017 some 4 years and 8 months before the claim was issued. I enclose tenancy agreements for xxxxxxx (Exb 1) and xxxxxxx (Exb 2) as evidence.

13. The fact that there was no response from a series of letters sent to my previous address should have alerted the Claimant to the possibility that I was not residing there. Silence after sending a Notice to Keeper, a reminder and then a Letter before Claim is a clear indicator that the Registered Keeper may not live there.

14. I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address at which I no longer resided. The claimant did not take reasonable steps to ascertain the address of my current residence, despite having some 2 years and 11 months to establish a valid address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

15. 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.

THE INTERNATIONAL PARKING COMMUNITY CODE WAS NOT FOLLOWED

16. International Parking Community (IPC) Code of Practice which requires a soft trace to be undertaken was not followed. The IPC Code of Practice 2019 - Version 7, November 2019, clause 22.1 states;

17. Operators must take reasonable steps to ensure that the motorist’s details are still correct if 12 months have passed from the Parking Event before issuing court proceedings”

 

DVLA ADDRESS DATA MAY NOT BE RELIABLE

18. DVLA data is provided for a single (very limited) reason, so a parking operator can invite the registered keeper to name the driver or pay the invoice or inform the registered keeper they will be liable if not, and notify of appeal rights.

19. The system, called 'KADOE' (Keeper On Date of Event), is a brief 'snapshot in time' address to enable a parking firm to send a Notice to the registered keeper. 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 updates a VC5 logbook with a new address (or if the DVLA fails to process a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.

20. There is no safe presumption that a DVLA vehicle address is a valid address where a Defendant can be served. The KADOE address is not provided as a 'court claim service address' and should not be relied upon, as it is only an address where the vehicle was kept at a historical point in time (which may not be where the keeper lives; it is where the car was 'kept').

21. A claim sent to an old DVLA registered keeper address with no soft trace checks (costing as little as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the IPC Code of Practice, fails to satisfy the specific 'pre-action Protocol for debt claims', and is in breach of the CPRs about the obligation to take 'reasonable steps' to check a Defendant's address so that service is effective.

22. 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, and I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful.

 

CLAIM No: XXX

BETWEEN:
XYZ PPC LTD (Claimant)
-- and --
XXX (Defendant)
______________________________________________
DRAFT ORDER
______________________________________________

IT IS ORDERED THAT:

 

UPON considering the application of the Defendant to set aside the Judgment by default entered on 15th September 2021;

AND UPON reading the evidence in support of the application;

AND UPON the court taking note that the Claimant was not entitled to default judgment, having failed to serve on Defendant's usual residential address;

AND UPON more than 4 months having passed (CPR 7.5 refers) from issue of proceedings 1st September 2021.

IT IS ORDERED:

1.       The Judgment by default entered against the Defendant on 15th September 2021 is hereby set aside.

2.       The claim should be struck out as more than 4 months has passed from issue of proceedings 1st September 2021.

3.       Costs of the application be paid by the Claimant to the Defendant in the sum of £275.

 

Many thanks for all your continued help on this, I'm going to start completing the N244, have never issued one before so excuse me if I have some stupid questions, I'll read the guidance first to try and minimise these.

1505grandad

You have gone back to referring to the IPC CoP again!!

Coupon-mad

Tristesse1337 said:

Thanks CEL vs Chan added and the judgement saved as an exhibit the link you sent is great I've just had a read through but I can't see who the defendant name is so I've saved it as 'EXB4 - UKPCL vs Unknown' and have added it to my statement in the same section as the Chan judgement if that makes sense?

But the link gives you about ten judgments all in one document.

Tristesse1337

Thank you found the links now will incorporate and post back.

@1505grandad

I've updated the section to:

BPA CODE OF CONDUCT WAS NOT FOLLOWED

16. The claimant is a member of the BPA (British Parking Association) and is a founder member of the BPA’s Approved Operator Scheme (AOS) which it claims on its website ‘were instrumental in formulating the code of practice that bona fida car park management companies operate under’ as per section [3] of this witness statement the claimant has failed to follow the BPA code of practice.

17. Section 24.1c of the code of conduct states:

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

As these letters had been sent to the defendants previous address xxxxxxx no response could have been received by the claimant and therefore if has not undertaken reasonable endeavours. A simple ‘soft search’ with a credit reference agency (which costs as little as 28 pence in bulk) would have revealed the newest address well in advance of the claim issue date.

Does that look ok?

Hoping to get this all issued out today if not tomorrow, just out of interest how long would it normally take to go through etc? I'm assuming they will contest so it'll end up with a hearing?

Coupon-mad

Have a look at the 6 examples listed by username links in the NEWBIES thread avd that tells you how long each one took.