Parking tickets and CCJ for parking in residents parking

LizA70

Coupon-mad said:

No.  Your Draft Order.  Not a consent order and certainly not their version!

See the one by @Zbubuman; that's typical.  Done in every CCJ case.

Doh, yes I have a draft order in my bundle Thank you

Coupon-mad

Ok and it looks like this?

https://forums.moneysavingexpert.com/discussion/comment/80762714/#Comment_80762714

Coupon-mad

IN THE COUNTY COURT AT xxxxxx

Claim No.: xxxxxxx

Between

MET PARKING SERVICES LIMITED
(Claimant)

-and-

 Xxxxxxxx. Xxxxx

(Defendant)

 _______________________________________

SKELETON ARGUMENT - DEFENDANT

_______________________________________

 Introduction and CPRs relied upon

1. This skeleton is filed by the Defendant, in support of their N244 application in this case.

2.  In particular, the purpose of this document is to assist the court in identifying the authorities that support the Defendant's position that the claim has expired unserved, and should be dismissed in the Order setting aside the CCJ.

3.  The application relies upon the requirements of CPR 12.3(1), and the obligatory rule in CPR 13.2 (in the alternative, 13.3) in order to set aside the CCJ.  However, the Claim having been sent to an old address in November 2023 means that the claim is expired and thus, time barred.  CPR 3.10 cannot rescue the Claimant. This general provision does not enable the Court to do what CPR 7.6(3) forbids.

4. Authorities below support the Defendant who also disputes the jurisdiction of the court to dispense with service of an expired and unserved Claim Form.  Thus, the Defendant's application also relies upon CPR 11.

5. Further and in the alternative, the Defendant relies upon CPR 16.4(1)(e) and 16PD3 and 16PD7, because the POC fail to "state all facts necessary for the purpose of formulating a complete cause of action".

6. The situation caused by the Claimant's actions (or inaction) is explicitly dealt with in the Civil Procedure Rules which provide at CPR 6.9(3):

"Where a claimant has reason to believe that the address of the defendant … is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’)."

7.  The Claimant is a member of the British Parking Association (the ‘BPA’) and is bound by the BPA’s Code of Practice which gives voice to CPR 6.9(3) in the following terms:

https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf

'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.'

The claim has expired unserved 

8.  By reason of the Claimant's vexatious conduct in only checking (and easily tracing) the Defendant's current address in 2024, after obtaining default judgment, they are in breach of the BPA Code of Practice and the Civil Procedure Rules, which amounts to an abuse of the process of the Court.

9.   There is a wealth of case law making reference to the failure to correctly ascertain the addresses of Defendants, who (as a result of lack of diligence by Claimants) have never become under a valid obligation to acknowledge service. Of note:  

10. In Collier v Williams [2006] EWCA Civ 20 1 WLR 1945 Bailii 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. [...]  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."  

  
11.  The same sentiment was echoed by:

(i) HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)  
  
(ii) HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012) and;

(iii) LJ McCombe in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016), linked and quoted at paragraph 25 below.

THERE ARE NO EXCEPTIONAL CIRCUMSTANCES TO SUPPORT THE VERY LIMITED COURT DISCRETION TO RETROSPECTIVELY VALIDATE DEFECTIVE SERVICE BY RESURRECTING AN EXPIRED AND UNSERVED (AND HOPELESS) CLAIM.

12.  The Claimant now wishes to retrospectively amend their 'dead' claim.  Courts have no jurisdiction to give parties extra opportunities to waste the Court’s time after failing to follow pre-action protocols for debt claims, breaching the BPA Code of Practice and notably breaching the CPRs throughout the course of this litigation.

13. Service of the claim form on an old address constitutes defective service and the claim has expired unserved.   The Claimant currently has no claim because it was not properly served within 4 months and is time barred.

14. Continuing an expired unserved claim more than 4 months after it was raised (but never properly served) is impossible under any rule of law or practice (CPR 7.5). This claim must be dismissed as more than 4 months have passed from issue of proceedings.

15. A Court's discretionary power to validate a defectively served claim is very limited, and only applies where there is ‘good reason’ for the court to exercise the power so conferred and only in narrow and exceptional circumstances.  

16. There is no ‘good reason’ to retrospectively validate the claimants’ service under Rule 6.15.  Further, whilst Rule 6.16 does create a power for a court to dispense with service of the claim form, this only applies in 'exceptional circumstances', which do not apply here.

17. Tests were established by Lord Sumption’s analysis in Barton v Wright Hassall LLP [2018] 1 WLR 1119 

(i). Did the claimant take reasonable steps to effect service in accordance with the rules?

(ii). Were the defendants aware of the contents of the claim form at the time when the time for service expired?

(iii). What, if any, prejudice would the defendants suffer by the retrospective validation of a non-compliant service of the claim form, bearing in mind what the defendants knew about its contents?

18. The answer to the first two questions is no. Whilst the CNBC supplied sufficient information to enable the Defendant to fill out the N244, the relevant time for filing an acknowledgement of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time and only supplied a bare 'copy & paste' of the Particulars in order for the application to be made, the clock was never running to acknowledge. In any event, the supposed POC were woefully inadequate and incapable of making the Defendant 'aware' of the  allegations (see below). The Defendant cannot be deemed to have sufficient knowledge of the contents of the Claim Form to understand it, much less be on notice of any 'deadline' required to respond to it, having not seen the Claim Form court paperwork at all, and merely having read this incoherent and unspecified excerpt, which fails to state any dates/times of any of the parking events:

"THE DEFENDANT (D) IS INDEBTED TO THE CLAIMANT (C) FOR PARKING CHARGES ISSUED TO VEHICLE xxxxxxx xxxxxxxx. 2. THE PCN(S) WERE ISSUED BETWEEN date/month/year & date/month/year".

Coupon-mad

FURTHER RELEVANT CASE LAW ON EXPIRED UNSERVED CLAIMS

19. The decision in Good Law Project v (1) Secretary of State for Health and Social Care and (2) Pharmaceuticals Direct Limited [2021] EWHC 1782 (TCC) Click here to read the full judgment emphasised the importance of serving a claim form correctly on time. In that case sending the claim form to the wrong email address (the claim form was sent to the solicitors, not the designated email address) did not constitute valid service and an extension of time was deemed inappropriate.

20. In Pitalia & Anor v NHS England [2023] EWCA Civ 657 the Court of Appeal held that a claimant could not resist its claim being struck out as a result of its failure to serve the claim form within the four month period in CPR 7.5. This was the case even though the strike out application had not been made correctly.

21. In IDEAL SHOPPING DIRECT LTD & ORS V MASTERCARD INCORPORATED & ORS [2022] EWCA CIV 14. the Court of Appeal upheld a High Court decision that the claimant had not validly served proceedings and there were no good reasons or exceptional circumstances for the court to indulge the erring Claimant by granting a retrospective order validating the attempted service. Held: CPR 3.10 (General power to rectify following error of procedure) did not enable the court to rectify ineffective service of the claim form and remedy the claimants’ error. That rule should not be used to get around service requirements and the claimants also did not satisfy the requirements under CPR 6.15 or 6.16. Following the approach in Piepenbrock v Associated Newspapers Ltd [2020] EWHC 1708 (QB) ([69]), having considered all the circumstances under rule 6.15, and finding no ‘good reason’, in Ideal Shopping Direct there were similarly no grounds to find the ‘exceptional circumstances’ required under rule 6.16. 

22. Other authorities include:

(I) the High Court decision in Boxwood Leisure Ltd v Gleeson Construction Services Ltd & Anor [2021] EWHC 947 (TCC) which served 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.”  The case demonstrated the Court’s finite leniency and the fact that the Court’s case management powers are not an invariable cure-all for errors such as defective or late service.

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

(iii) Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) - linked already above - where 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.  The judgment is relevant and included:

“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. [...] 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]. [...]  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.”  

(iv) Vinos v Marks & Spencer plc [2001] 3 All ER 784, Click here to read the full judgment 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 the power to do so.  

23.  CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgement of service only if at the date on which judgment is entered;

(a) the defendant has not filed an acknowledgement of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired.

24.  However, the claim form was not validly served due to failure to check for a current address (CPR 6.9 (3)), therefore the time limit for acknowledging service had not begun. As the time limit has not begun it cannot have expired. As the time limit has not expired the condition in CPR 12.3(1)(b) has not been satisfied.

25.  This results in a mandatory set aside (CPR 13.2). It follows that if a claim is set aside for failure to be served, then the claim cannot be resurrected and served again after 4 months has passed from the date of filing pursuant to CPR 7.5(1). This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016):  Click here to read the full judgment

“Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. [...]  I accept Mr McLaren's argument that when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgement of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).  I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgement of service when "any of the conditions in rule 12.3(1) …was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.  

This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. 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 acknowledgement. He is simply not in default at all.”  

Defective Particulars of Claim

26. In the alternative: it is submitted that the claim should be struck out regardless of the above other abusive conduct, because the POC fail to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5.

27. In Civil Enforcement Limited v Chan (Ref. E7GM9W44) heard on 15th August 2023 and which was also about a N244 'parking CCJ' set aside application (wrongly refused at the first hearing), HHJ Murch, sitting at Luton County Court, 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'.

28.  Courts up and down the country all agree: Judgments

 Order Sought by Defendant

29. The correct address could have been (and was, too late) acquired for less than £1 from a Credit Reference Agency, had the Claimant or their bulk debt collectors exercised timely and reasonable diligence. The claim form was never properly served and the judgment must be set aside at the Claimant’s expense and the expired claim must be dismissed.

30. It is submitted that, for the reasons stated above, the Court should find in favour of the Defendant in this matter, and award the Defendant their full costs pursuant to the Claimant’s wholly unreasonable conduct, as set out above.

31.  The Defendant’s costs schedule is appended with the Defendant's bundle, and the Court is invited to make an order in the terms set out in the Defendant's Draft Order.


Date: 7 May 2024 

LizA70

@Coupon-mad, sheer brilliance, so I'm essentially saying that because I didn't receive the first claim form, after 4 months it cannot be resurrected ? and its a strike out ? In addition to breaches of defective particulars of claim 

Caveat to that is that because CNBC sent me a copy of the claim form Feb 24, does that constitute serving ? please forgive if that's a stupid question.

I will amend my draft order to include this new information and will send all off once I've heard back on my question, thank you so very much 

Coupon-mad

Caveat to that is that because CNBC sent me a copy of the claim form Feb 24, does that constitute serving ? please forgive if that's a stupid question.

Not a stupid question, but that's covered in the skelly, at para 18.  You were not served with the Claim Form.

BTW I just edited 11, 18 and 29. Please use the latest version.

LizA70

Lovely Forum, I've added in the skeleton defence into my supplementary witness statement below, @Coupon-mad, I've done as per your amendments to 11, 18 and 29 although numbering a now 10, 17 and 28.

I was only charged £14 for my N244 application to stay writ and set judgment aside, I'd read other threads that have had similar issues, I did offer to pay the disparity when second set of serving happened on 5th March, but was declined this offer by the courts.

I'd be grateful if I could get feedback on the rest of it, I'd been working on SWS with comments from the Forum. I know it needs tidying up, spell check, () around all numbers.

Thank you @Coupon-mad

IN THE COUNTY COURT AT xxxxxx

Claim No.: xxxxxxx

Between

MET PARKING SERVICES LIMITED
(Claimant)

-and-

 Xxxxxxxx. Xxxxx

(Defendant)

 _____________________________________
Supplementary Witness Statement - DEFENDANT

_______________________________________

Introductions and CPR's relied upon

(1) I make this Supplementary Witness Statement in support of the application made on 2nd February 2024, and 5th March 2024, for an order that the High Court Writ be stayed and that judgment in this case be set aside, pursuant to CPR 13.2., due to improper service of the claim form.

(2) Further, should Court be of the view that the generic Particulars of Claim (which fail to break down or properly specify the various purported multiple 'parking charges' and their extortionate multiple 'damages' enhancement) are inadequate and thus in breach of CPR 16.4, 16PD3 and16PD7, I respectfully ask that the entire claim be struck out.

(3) In particular, the purpose of this document is to assist the court in identifying the authorities that support the Defendant's position that the claim has expired unserved, and should be dismissed in the Order setting aside the CCJ.

(4) The application relies upon the obligatory rule in CPR 13.2 (in the alternative, 13.3) to set aside the CCJ.  However, the Claim having been sent to an old address in November 2023 means that the claim is expired and thus, time barred.  CPR 3.10 cannot rescue the Claimant. This general provision does not enable the Court to do what CPR 7.6(3) forbids.

(5) Authorities below support the Defendant who also disputes the jurisdiction of the court to dispense with service of an expired/unserved Claim Form.  Thus, the Defendant's application also relies upon CPR 11.

(6)The situation caused by the Claimant's actions (or inaction) is explicitly dealt with in the Civil Procedure Rules which provide at CPR 6.9(3):

"Where a claimant has reason to believe that the address of the defendant … is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’)."

 

(7)  The Claimant is a member of the British Parking Association (the ‘BPA’) and is bound by the BPA’s Code of Practice which gives voice to CPR 6.9(3) in the following terms:

'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.'

 

 

Prompt application made

 (8) Under section 3 of my Witness Statement I outline the steps I took on first becoming aware of this judgement, late in the evening of 7th January 2024. Prompted by a notification on my Clear Score App, I paid a £5 fee to Trust Online.   I attach a screenshot of the Trust Online result dated 7th January 2024 @ 22.00, and bank receipt.

(Exhibit x)

 (8.1) Under section 3, I have also referenced “Storm Henk” flood at my property on 4th January 2024.  Evening of 4th January I was forced to vacate my home, due to over a foot of water entering all areas of my home (bungalow property), Emergency Services advised there was a potential danger to life, to turn off my electricity and leave whilst I could still open doors, to escape against heavy flood waters. I attach photos dated 5th January 2024, which show the scenes at my property after food waters had subsided. I attach further photographs of my property dated 21st January 2024, in addition to working full time, I had cleared all flood damaged items out of my home, deep cleaned and with the re instigation of electricity I was able to move back in to commence the restoration process.  (Exhibit x)

 (8.2) I then endeavoured to continue to piece together the facts relating to this Claim, seek advice and complete my N244 application.

 (8.3) I completed my N244 application on 31st January 2024, paid CNBC 1st February and sent on 2nd February to CNBC, as per courts instructions and received a notification from the automated mailbox which quoted 10 working days to respond, whilst this response also stated N244 applications should be sent by post, due to the urgency of this application the courts advised I could send via email. The attached email shows automated response to my first submission being 2nd February 2024 at 08.32. (Exhibit x)

 

The defendant would invite the courts to consider that she made very prompt application to Stay the writ and set judgment aside, given an exceptional challenging set of circumstances.

 

The claim is inadequate

(9) Within section 14.3 of the Defendants Witness Statement, I have made reference to the voucher system I was using whist endeavouring to get the claimants response to (a) how to apply for a Permit and (b) following my application and awaiting the Permit (which never arrived). I was keen to ensure I followed what was required of me.  From memory, I took photos of the vouchers, as I was aware of other residents receiving ‘parking fines’.  As nearly 4 years have passed since this period of time, and my phone having a complete failure November 2021, I believed I had lost that proof, however I have managed to find one photo which clearly shows that between 6th June 2020 to 13th June 2020, I had a Temporary Permit, as I did on all other periods for this claim. On phoning the Defendant solicitors on 30th April 2024, they confirmed I had received one of the fourteen ‘parking charges’, referred to on the Particulars of Claim, on 9th June 2020.  I strongly refute the Particulars of Claim “Failing to clearly display a valid permit”.  The attached exhibit is time stamped 9th June 2020 @ 18.33.   (Exhibit x)

(9.1) In addition to 14.2 of the Defendant’s Witness Statement, I have recently received an email correspondence between one other Resident and the Management Committee, dated 11th November 2020, it again states that the Claimant was “dismissed hence forth from site” (earlier than I had previously thought) “having refused to respond to countless telephone calls, provide permits in a timely period and to continue to ticket genuine residents despite being advised not to attend site….. The claimant advised “any ticket issue after 1st October 2020 will be cancelled”. CNBC have provided details of the claim form to allow me to complete my N244 and the claimant states:

“THE PCN(S) WERE ISSUED BETWEEN 27/05/2020 & 05/10/2020” 

On the aforementioned telephone conversation with the Claimants Solicitors, they confirmed that one of the fourteen ‘parking fines’ referred to on the Particulars of Claim was issued on 5th October 2020. (Exhibit x email from Management Committee)

(5) I understand the Claimant has suggested to other residents experiencing the similar issues as myself that they should not park in the Residents Car Park whilst awaiting a Permit and I am keen to show the courts the reason would have been physically and financially challenging.  xxxxxxx is opposite xxxxxxxxxx Underground Station Zone 5 of the Tube, and as such all the roads surrounding the area do not allow for parking or have resident parking or restrictions (all options subject to fines), any available parking is at a cost premium.     (Exhibit x Google Maps showing location of xxxxxxxx)

(6) On xx May 2024 The Claimant Solicitors advised the Defendant of the Draft Order sent to the courts for consideration at this Hearing, which in theory achieves the set aside I have asked for.  This Draft order was sent to me as a Consent Order, on xxth April 2024, by the Claimants Solicitors, asking if agreed, to be signed to be sent back by the xx April 2024. My response to the Claimants Solicitors on xx April 2024 was that although I am keen to resolve this matter, save costs and time to all parties. I could not agree to it as, I did not agree (a) the Claim was correctly served under CPR 13.2, (b) that permission to amend the Claim form had no indication of what those changes would be (c) I was not willing to accept HCEO enforcement costs on a Set aside application, which was made promptly on becoming aware, which would historically rewind the financial costs (why would I agree to additional charges being added to a Claim that I already dispute  where the Claimant is at no financial loss, I was a resident and should have been able to park free, from harassment and financial loss), and (d) that it did not allow for my costs incurred to date.  The Claimants solicitor’s responded on the xx May 2024 that their client would not agree to my terms and would proceed to hearing. I do not believe this was a genuine effort to resolve this dispute, but merely an attempt to strengthen their weak position.

(6.1)  The Defendant is particularly concerned about the Claimants request to amend the claim form and giving no indication as to what this would be as I have asked for the courts in my Witness Statement and in this Supplementary Witness Statement to consider striking out the claim under CPR 16.4, 16PD3 and16PD7. The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant Particulars of Claim seen here are far worse than the one seen on Appeal).  The Defendant believes 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.

(6.2)  A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the Particulars of Claim 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.

(6.3)This persuasive judgment transcript is appended along with multiple other recent 2023/24 judgments from all around the English Courts, applying CPR 16 and the Practice Direction in the same way as HHJ Murch did. (Exhibit x)

 

The claim has expired unserved 

7.  By reason of the Claimant's vexatious conduct in only checking (and easily tracing) the Defendant's current address in 2024, after obtaining default judgment, they are in breach of the BPA Code of Practice and the Civil Procedure Rules, which amounts to an abuse of the process of the Court.

8.   There is a wealth of case law making reference to the failure to correctly ascertain the addresses of Defendants, who (as a result of lack of diligence by Claimants) have never become under a valid obligation to acknowledge service. Of note:  

9. In Collier v Williams [2006] EWCA Civ 20 1 WLR 1945 Bailii 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. [...]  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."  

  

10. The same sentiment was echoed by:

(i) HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)  
  
(ii) HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012) and;

(iii) LJ McCombe in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016), linked and quoted at paragraph 24 below.

 

 

LizA70

continued:

10. The same sentiment was echoed by:

(i) HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)  
  
(ii) HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012) and;

(iii) LJ McCombe in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016), linked and quoted at paragraph 24 below.

 

 

THERE ARE NO EXCEPTIONAL CIRCUMSTANCES TO SUPPORT THE VERY LIMITED COURT DISCRETION TO RETROSPECTIVELY VALIDATE DEFECTIVE SERVICE BY RESURRECTING AN EXPIRED AND UNSERVED (AND HOPELESS) CLAIM.

11.  The Claimant now wishes to retrospectively amend their 'dead' claim.  Courts have no jurisdiction to give parties extra opportunities to waste the Court’s time after failing to follow pre-action protocols for debt claims, breaching the BPA Code of Practice and notably breaching the CPRs throughout the course of this litigation.

12. Service of the claim form on an old address constitutes defective service and the claim has expired unserved.   The Claimant currently has no claim because it was not properly served within 4 months and is time barred.

13. Continuing an expired unserved claim more than 4 months after it was raised (but never properly served) is impossible under any rule of law or practice (CPR 7.5). This claim must be dismissed as more than 4 months have passed from issue of proceedings.

14. A Court's discretionary power to validate a defectively served claim is very limited, and only applies where there is ‘good reason’ for the court to exercise the power so conferred and only in narrow and exceptional circumstances.  

15. There is no ‘good reason’ to retrospectively validate the claimants’ service under Rule 6.15.  Further, whilst Rule 6.16 does create a power for a court to dispense with service of the claim form, this only applies in 'exceptional circumstances', which do not apply here.

16. Tests were established by Lord Sumption’s analysis in Barton v Wright Hassall LLP [2018] 1 WLR 1119 

(i). Did the claimant take reasonable steps to effect service in accordance with the rules?

(ii). Were the defendants aware of the contents of the claim form at the time when the time for service expired?

(iii). What, if any, prejudice would the defendants suffer by the retrospective validation of a non-compliant service of the claim form, bearing in mind what the defendants knew about its contents?

17. The answer to the first two questions is no. Whilst the CNBC supplied sufficient information to enable the Defendant to fill out the N244, the relevant time for filing an acknowledgement of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time and only supplied a bare 'copy & paste' of the Particulars in order for the application to be made, the clock was never running to acknowledge. In any event, the supposed POC were woefully inadequate and incapable of making the Defendant 'aware' of the  allegations (see below). The Defendant cannot be deemed to have sufficient knowledge of the contents of the Claim Form to understand it, much less be on notice of any 'deadline' required to respond to it, having not seen the Claim Form court paperwork at all, and merely having read this incoherent and unspecified excerpt, which fails to state any dates/times of any of the parking events:

"THE DEFENDANT (D) IS INDEBTED TO THE CLAIMANT (C) FOR PARKING CHARGES ISSUED TO VEHICLE xxxxxxx xxxxxxxx. 2. THE PCN(S) WERE ISSUED BETWEEN date/month/year & date/month/year".

 

FURTHER RELEVANT CASE LAW ON EXPIRED UNSERVED CLAIMS

18. The decision in Good Law Project v (1) Secretary of State for Health and Social Care and (2) Pharmaceuticals Direct Limited [2021] EWHC 1782 phasised the importance of serving a claim form correctly on time. In that case sending the claim form to the wrong email address (the claim form was sent to the solicitors, not the designated email address) did not constitute valid service and an extension of time was deemed inappropriate.

 

 

19. In Pitalia & Anor v NHS England [2023] EWCA Civ 657 the Court of Appeal held that a claimant could not resist its claim being struck out as a result of its failure to serve the claim form within the four month period in CPR 7.5. This was the case even though the strike out application had not been made correctly.

 

 

20. In IDEAL SHOPPING DIRECT LTD & ORS V MASTERCARD INCORPORATED & ORS [2022] EWCA CIV 14. the Court of Appeal upheld a High Court decision that the claimant had not validly served proceedings and there were no good reasons or exceptional circumstances for the court to indulge the erring Claimant by granting a retrospective order validating the attempted service. Held: CPR 3.10 (General power to rectify following error of procedure) did not enable the court to rectify ineffective service of the claim form and remedy the claimants’ error. That rule should not be used to get around service requirements and the claimants also did not satisfy the requirements under CPR 6.15 or 6.16. Following the approach in Piepenbrock v Associated Newspapers Ltd [2020] EWHC 1708 (QB) ([69]), having considered all the circumstances under rule 6.15, and finding no ‘good reason’, in Ideal Shopping Direct there were similarly no grounds to find the ‘exceptional circumstances’ required under rule 6.16. 

 

21. Other authorities include:

(I) the High Court decision in Boxwood Leisure Ltd v Gleeson Construction Services Ltd & Anor [2021] EWHC 947 (TCC) which served 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.”  The case demonstrated the Court’s finite leniency and the fact that the Court’s case management powers are not an invariable cure-all for errors such as defective or late service.

 

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

 

(iii) Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) - linked already above - where 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.  The judgment is relevant and included:

“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. [...] 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]. [...]  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.”  

(iv) Vinos v Marks & Spencer plc [2001] 3 All ER 784,  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 the power to do so.  

 

22.  CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgement of service only if at the date on which judgment is entered;

(a) the defendant has not filed an acknowledgement of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired.

23.  However, the claim form was not validly served due to failure to check for a current address (CPR 6.9 (3)), therefore the time limit for acknowledging service had not begun. As the time limit has not begun it cannot have expired. As the time limit has not expired the condition in CPR 12.3(1)(b) has not been satisfied.

24.  This results in a mandatory set aside (CPR 13.2). It follows that if a claim is set aside for failure to be served, then the claim cannot be resurrected and served again after 4 months has passed from the date of filing pursuant to CPR 7.5(1). This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016):  

 “Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. [...]  I accept Mr McLaren's argument that when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgement of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).  I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgement of service when "any of the conditions in rule 12.3(1) …was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.  

This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. 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 acknowledgement. He is simply not in default at all.”  

 

 

 

 

 

 

 

 

 

 

Conclusion:

(25) In view of the foregoing, I respectfully ask that my application is granted:

- staying the High Court Writ;

- setting aside the CCJ;

- awarding my costs of £14, plus costs of attending the hearing and damages (at the courts discretion) against the Claimant pursuant to 27.14(2);

- striking out the claim for want of service, breach of the Code of Practice, breaches of various CPRs listed above and/or the fact that the claim has no prospects of success;

 

 

 

 

Statement of Truth

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.

LizA70

Schedule of Costs looks like this: 

Schedule of Costs – xxxxxxx (Defendant) xxxxxxxxx

Up to and including Court Hearing 10th May 2024

 

1.       Cost of 1 x day work for court appearance                                        £102

2.       34 miles to xxxxxx Courts and return @ 45p                                     £15.30

3.       Parking xxxxxxx Courts                                                                     £3.50

4.       Cost of N244 Application                                                                    £14

5.       7 hours @ £19 (litigant rate) reading, prep of court docs                   £133

6.       Damages (at courts discretion)                                                           £200

7.       Printing 53 sheets @ 15p                                                                    £7.95

Total £475.75

 

Signed

LizA70

And Draft order looks like this:

Claim No. xxxxxxxxxx

BETWEEN:

MET PARKING SERVICES LTD

Claimant

– and –

xxxxxxxxxxxxxxxx

Defendant

______________________________________________
DRAFT ORDER
______________________________________________

IT IS ORDERED THAT:

UPON considering the application of the Defendant to Stay writ and set aside the Judgment by default entered on 20th December 2023;

AND UPON reading the evidence in support of the application;

AND UPON the court noting that the Claimant was not entitled to default judgment due to improper service of the Claim Form;

AND UPON the court decision that Particulars of Claim are inadequate and thus in breach of CPR 16.4, 16PD3 and 16PD7 and/or the fact that the claim has no prospects of success;

AND UPON more than 4 months having passed (CPR 7.5 refers) from issue of proceedings 29th November 2023

IT IS ORDERED:

1.     The Judgment by default entered against the Defendant on 20th December 2023 is hereby set aside and the Writ is stayed.

2.     The claim should be struck out.

3.     Costs ordered to the defendant for £475.75