Unexpected CCJ - Now won and claim dismissed!

Castle

Mathmagician said:

Signed.
So, final question then. Should I wait for the full SAR to come back? My understanding is that they can take a while.
If there is a record of my phone conversation it will show me saying that I received the LBC at my new address, I still duspute it and a court needs to decide.
Then the operator gets muddled and decides she can't speak to me anymore because I am not the RK. I explain she can't talk to the RK because he's in France. I then give up and hang up.

Can't your phone provider provide a list of phone numbers you called?

Mathmagician

Yes, I should be able to evidence that.

Mathmagician

WS and draft order below:

WITNESS STATEMENT

I am XXXX and I am the defendant in this matter. This is my supporting statement to my application dated XX February 2024 requesting to:

a. Set aside the default judgment dated 04 January 2024 as it was defectively served using an old address.

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

c. Order for the original claim to be dismissed.

DEFAULT JUDGMENT

1.1. The defendant wasn’t the registered keeper of the vehicle at the time of the alleged offence, they were the driver.

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on XX January 2024. I am aware that the Claimant is XXXX, and that the assumed claim is in respect of unpaid Parking Charge Notices from the XX December 2021 at XXXX. I contest this charge for the reasons outlined in Part 2 of this defence.

1.3. The claim form was not served at the defendant's current address and he thus was not aware of the Default Judgement until 2nd February 2024 following a notification of an automated credit report update; as found in Schedule (X)

The address on the claim is XXXX. The defendant moved to their current address at XXXX on the XX June 2022. In support of this copies of completion statements and utility bills can be provided; Schedule (X)

1.4. 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 that;

1.4.1 A CCJ was discovered lodged onto the defendant’s credit file on the 2nd February 2024.

1.4.2 On 2nd February the defendant contacted the County Court Business Centre to obtain relevant information relating to this default judgement;

1.4.3 On XX February 2024 the defendant wilfully submitted their case in order to set-aside this judgement and fairly present their defence.

 1.4.4 Throughout the process the defendant responded to communications with the claimant by stepping forward as the driver, communicating reasons for contesting the PCN and phoning the company upon receipt of communication at a new address.

1.5. The defendant believes the Claimant has behaved unreasonably in pursuing a claim without ensuring they held the Defendant’s correct contact details at the time of the claim.

1.6. On that basis, the defendant believes 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 traced the defendant to their current address writing to them there XX September 2023. Furthermore, the defendant confirmed their residence at this new address upon receipt of said letter by telephone call. The defendant also restated that they contested the PCN. Finally, the claimant possessed an up-to-date email address for the defendant throughout this process. Despite the wealth of evidence of change of address and an alternative means of contact, there followed a defective service and an irregular judgement; Schedule (X).

1.7 It was always the intention to defend this claim as evidenced by the initial rejection of the PCN and the statement of intent to the claimant in September 2023. This judgement falls foul of CPR 13.3 as the defendant was unable to submit a defence.

1.8. Considering the above, the defendant was unable to defend this claim. The Default Judgement was issued incorrectly and thus should be set aside. The defendant asks the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful.

Order Dismissing the Claim

2.     Order dismissing the Claim

2.1.  The defendant further believes that the original Claim by the Claimant has no merit and should thus be dismissed. The defendant understands the Claimant to be a Private Parking Company that issues “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

 2.2.  The defendant denies the claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was a breach of any term. The car park in question is signposted as “Parking for Leisure Complex Customers Only – Free of Charge at All times.” The driver was demonstrably a customer of the Leisure centre at the time of the alleged breach of contract.

 2.3.  The Claimant, or their legal representatives, has added an additional sum of £55 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

 2.4.  For all or any of the reasons stated above, The defendant asks the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs for attending, namely the £275 Court fee in bringing this set aside case, despite not being shown to be liable for any parking charge at all.

 2.5.  If required to defend at a further hearing, the defendant will require all copies of paperwork, letters and other documentation including pictures of all signage from the Claimant in order to make informed decisions and statements in a comprehensive defence as alleged driver.

 

DRAFT ORDER
IN THE COUNTY COURT AT

UK Car Park Management (Claimant)
And

XXXXX (Defendant)

District Judge

UPON reading the Defendant's application dated XXth February 2024 and the annexed witness statement of XXXXX dated XXth February 2024 

IT IS ORDERED that:
1. The default judgment dated 4th January 2024 be set aside.
2. Costs to be reserved.
3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4 pm on [date] paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £275 and the claim shall be struck out.
4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on [date].
5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £275.
6. That all enforcement be put on hold pending the outcome of the application.

1505grandad

"UK Car Park Management (Claimant)"  -  are you sure?

"Judgment"  -  no middle "e" in this context.

Coupon-mad

Loos like you've read an old example as none if the newer CCJ set aside examples ask for 'costs to be reserved', and I think none of them use that strange numbering.

Look at the most recent one in the 5 examples linked in the NEWBIES thread.

Mathmagician

Thanks, will sort it shortly 

Mathmagician

Sorry, I need a bit more help before I go again.
Much of the advice relates to people who weren't traced. I was traced and merely made phone contact to confirm I was at the new address. What's more that call was seriously bodged at their end when they suddenly decided they couldn't deal with me because I wasn't the RK, even though I had already been named as the driver.

Do I make reference to things like the IPC code of practice being followed? They did follow it by tracing me, just didn't implement their findings and instead served the claim on an old address even though we were 12 months since the PCN?

Sorry to ask again, I am just struggling a little with how to pitch this.

Coupon-mad

Yes state all of that.

State that it is wholly unreasonable conduct by the Claimant to trace the new address, upon which they heard from you by phone (exhibit attached - proof of phone call) and yet they inexplicably used the (known to be out of date) address for the court claim.

Mathmagician

Inspired by Hallie's one. For the draft order, what exact wording should I use regarding having the original claim struck out? The defence would be around signage.

WITNESS STATEMENT

I, XXX, of XXX , 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 04/01/2024, in default due to a defective service of Claim.

2.      I was not aware of the claim made against me until I checked my credit file on 2nd February 2024. This is when I found out the Claimant had obtained a default CCJ against me.

3.      The Claimant served the claim to an old address. This is a breach of CPR 13.2 (a) as the claim form was never served to my current address.

4.      The Claimant had a duty to take reasonable steps to check for the correct address, in accordance with the IPC Code of Practice 22.1 and CPR 6.9, as more than 12 months have passed since the PCN on 05/12/2021 and the CCJ on 04/01/2024.

5.      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.

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

THE CLAIMANT FAILED TO SERVE THE CLAIM

7. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 04/01/2024. I am aware that the Claimant is Minster Baywatch and that the assumed claim is in respect of an unpaid Parking Charge Notice.

8. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."  As I have not had any correspondence in relation to this matter, other than the brief case details from the courts, I am unsure of the specific dates that the claim was made. However the Claimant was clearly aware of my new address having found it through a trace. This is supported by the attached “LBC Chase Letter Traced” dated 1st September 2023. Ex A

 9. I responded to said letter by phone, stating that I had received the letter at my new address and my intention to contest the PCN. Ex B

 10. The Claimant inexplicably served the court claim at the old address of ADDRESS A. Thus I was not aware of the Default Judgment until I checked my credit file on 2nd of February. This is a breach of CPR 13.2 (a) as the claim form was never served to my current address. Due to this, the judgement was wrongly entered as I was unable to submit an acknowledgement of service in the absence of notification of the case (CPR 13.3).

11. The address on the claim is ADDRESS A. I moved from this address to my current address at ADDRESS B in June 2022. In support of this, I attach documentation showing my updated address details. Ex C

12. 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 take account of ample evidence of my new address nor my own telephone call to them, nor did they use the email address they held for me. This has led to the claim being incorrectly served to an old address and an irregular judgment.

13. 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

14. 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;

15. 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.” The operator undertook the trace but chose to serve a court claim at the out-of-date address.

RELEVANT CASE LAW

 16. 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."

17. The same sentiment was echoed by:

18. HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

19. HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)

20. In Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012) it would appear that obtaining the information from a source that an individual is required by law to keep updated is adequate knowledge. However, i would submit that it is incumbent to have recent knowledge and not outdated knowledge as HHJ Hacon put it in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

21. As it was put in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016) by LJ McCombe

22. “If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all."

 Order Dismissing the Claim

23.  I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand the Claimant to be a Private Parking Company that issues “Parking Charge Notices” which I believe are due because of an alleged breach of contract for parking by a motorist.

 24.  I deny the claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was a breach of any term. The car park in question is signposted as “Parking for Leisure Complex Customers Only – Free of Charge at All times.” The driver was demonstrably a customer of the Leisure centre at the time of the alleged breach of contract. Ex D & E

 25.  The Claimant, or their legal representatives, has added an additional sum of £55 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

 26.  For all or any of the reasons stated above, I ask the court of its own volition to strike out this claim and to order the Claimant to refund the defendant’s costs for attending, namely the £275 Court fee in bringing this set aside case, despite not being shown to be liable for any parking charge at all.

 27.  If required to defend at a further hearing, I will require all copies of paperwork, letters and other documentation including pictures of all signage from the Claimant in order to make informed decisions and statements in a comprehensive defence as alleged driver.

Statement of truth:

28. I 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.

 

CLAIM No: XXX

BETWEEN:
XYZ (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 [date];

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;

IT IS ORDERED:

1.      The Judgment by default entered against the Defendant on [date] is hereby set aside.

2.      The original claim should be struck out.

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

 

 

Coupon-mad

Getting there! But I don't think Minster Baywatch are in the IPC. Copy the wording from any (2023) CCJ set aside BPA Code thread.  Those are your search words.