CCJ SET ASIDE - NO INFORMATION ON THE PCN IN QUESTION

Coupon-mad

A 'bundle' is all the papers in the case (from both parties) and is normally done by the represented party, if done at all.

Don't worry about that. You aren't required to do a bundle.  You've already submitted your WS and evidence to support your CCJ set aside application.

But you might want to also do a skeleton argument and use the VCS v Carr case as that's Court of Appeal level.  See the transcript itself and excerpts from the CoA initial findings in the thread by @icy_fox

You should also exhibit CPMS v Akande (search the forum to find that transcript; look at OLDEST search results for that in order to locate the transcript when we first posted it, not newest nor best match).

And you should file & serve with your skelly and transcripts, your costs assessment because you've presumably spent £275 on the application plus printing costs and loss of leave for attending this hearing.

bendybackpanda

Thank you. So I should file my WS Draft Order and all my original documents by email with the Skeleton Argument and costs assessment ?

Is there a template for the Skeleton Argument?

Coupon-mad

Search the forum for:

skeleton argument CCJ set aside

That'll show you older ones (but yours needs to talk about VCS v Carr and CPMS v Akande as well as the usual case law your WS mentioned).

bendybackpanda

Sorry also is there reference for how the proceedings will go and what I should prepare to say in the court hearing? I have read through the newbies thread and couldn't see anything on this. Thank you so much for all your help 

Coupon-mad

Strange.

The NEWBIES thread has a whole section about hearings.

If you want to read 'CCJ specific' hearing accounts then just search the forum and scroll through the results.

I recall CCJ hearings reported by these people but there are hundreds to be found:

@hallie28  

@parkingpains1

@Jack5656

bendybackpanda

Please could you let me know what your opinion of this skeleton argument is ?

SKELETON ARGUMENT

1. 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 should be set aside.. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."

2. 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 PoC 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.

2.1 This recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) (SEE ORIGINAL WS) 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.

3. I respectfully request that the judge reviews the largely similar case referencing the same claimant (VCS vs Carr - Reference: CA-2024-001179) to be heard at the Court of Appeal this year, which is appended within EXHIBIT 01. The relevance of VCS vs Carr to this case `is twofold`:

3.1. Ground 1 is arguable with a real prospect of success. The validity of service is a mixed question of fact and law. The question whether the claimant had reason to believe that the address of the defendant is an address he no longer resides at is a question of fact. So too is the question whether the claimant took reasonable steps to effect service at the right address. The DJ found as a fact that the defendant contacted the claimant twice by phone and informed them that he was a tenant living at the property served by the car park to which the parking tickets related. That, plus the fact that they were getting no response from the defendant to correspondence sent to his former address put them on notice and they did not carry out the simple and reasonable enquiries that would have ascertained his current address.

3.2 Despite acknowledging that there is a high bar for an appellant who wishes to persuade an appellate court to interfere with a lower court's fact findings the Circuit Judge found it was surmounted. It is arguable with a strong prospect of success that she was not justified in doing so, let alone in substituting the findings that she did. Her reasoning at paragraph 12 is questionable. It makes little sense to me to find that by ringing up the claimant and saying he was a tenant at the property where the car was parked and that his tenancy agreement gave him the right to park there, the defendant was not telling the claimant he was living there (and by necessary implication that he did not live elsewhere) whether he said so in one call or two. Her suggestion that it “could have made a difference” if the DJ had found that only one call made reference to the defendant being a tenant of the flat is therefore baffling. His reasoning does not depend on how many calls there were.

3.3. In any event the Circuit Judge's analysis of the evidence about the telephone calls fails to take proper account of the context; she appears to have assumed that the absence of express reference to a tenancy in the claimant's note of the second conversation is conclusive. But the “client” referred to in that note could only be the company from which the claimant was taking its instructions to levy the parking charges -i.e. the landlord or managing agents of the block of flats. The second conversation only makes sense in the context that the motorist was claiming the landlord had confirmed he had the right to use the car park without being served with a parking penalty notice — necessarily implying that he was a tenant.

3.4. Moreover the DJ did not simply rely on the two telephone calls; he also took into account the absence of any response from the defendant to any of the voluminous correspondence sent by the claimant to his former address. Whether or not that was enough in itself to put them on notice, the Circuit Judge does not explain how the “error” she identified would invalidate that assessment of the evidence taken in the round. 

3.5. On the face of it there was a sufficient evidential basis for the DJ's findings and no mistake was made of the kind that would justify setting them aside.

3.6. There is a compelling reason to grant permission for a second appeal on this ground because if the DJ was entitled to make the findings that he did, and there was no justification for interfering with his decision to set aside the default judgment, it would be unfair to the defendant to allow that decision to stand.

3.7. Ground 2 is more problematic because of the exercise of judicial discretion, particularly in the light of the long delay. This court cannot interfere with a rational decision which applied the correct legal test and properly addressed all relevant factors and weighed them in the balance, however much it might disagree

3.8. However, the purpose of the power under CPR 13.3 is to avoid injustice, and although a lack of “promptness” in applying to set aside is a mandatory consideration, the rule makes it clear that the overriding objective is paramount. It is far from clear that the Circuit Judge approached the matter from that perspective. I find it telling that there is no mention in her judgement of the overriding objective nor of what the justice of the case required.

3.9. Even in a case of relief from sanctions where the delay is lengthy and there is no excuse for it, the court is required to consider all the circumstances of the case, in order to deal justly with the matter: Denton v White. This court has confirmed that the approach in Denton applies in the context of setting aside a judgment in default: FXF v English Karate Federation [2023] EWCA Civ 891

3.10. The starting point of the analysis must be that the defendant, who at all material times lived at the property where his car was parked, was being served with parking enforcement notices by the claimant because through no fault of his own and despite making every effort to get one, he could not display a parking permit to prove to them that he had the right to park his car in that space. He had tried without success to ‘explain this to the claimant, who in substance said it was not their problem and he should take it up with the letting agent/landlord. The claimant then obtained a default judgment for a sum in excess of £10,000 in respect of the accumulated parking charges after they had sent all relevant correspondence to and served the proceedings at an address where the defendant no longer lived. The Circuit Judge rightly found that he could not be criticised for failing to respond to a claim form which he never in fact received.

3.11. Given the Circuit Judge's finding (which the claimant realistically does not seek to challenge) that there was a real prospect of successfully defending the claim, in my judgment it is arguable with a real prospect of success that she did not properly carry out the holistic evaluation she should have done at the third ‘stage of the Denton test, despite expressly acknowledging that she had to take all the circumstances into consideration. As a result she placed too much weight on the delay after the defendant became aware of the default judgment, which she said she regarded as the most important factor. 

3.12. I may be wrong, but overall the judgement creates an impression that the Circuit Judge's marked disapproval of the defendant's failure to inform the DVLA of his change of address coloured her whole approach, She never expressly addressed the question “what does the justice of the case require?”. She did take into account his explanation for the delay, which she found unsatisfactory (as she was entitled to): but there is no indication that the delay was weighed against anything other than the alleged breach by the claimant of the rules requiring a certificate of service of the particulars of claim to be filed.

3.13. If the Circuit Judge approached the matter on the basis that without a satisfactory explanation for the delay the default judgment must stand, as she arguably did, she would have been misapplying Denton. Stage 3 of the Denton test only arises # there is inordinate and inexcusable delay. The reasons for the delay are ‘still relevant at the third stage but at that stage they do not (indeed will not) excuse it.

3.14. The Circuit Judge did not refer to the chronology set out under para 23 of the defendant's witness ‘statement nor to the evidence of what happened during the period of delay, which shows that he did not ‘simply sit on his hands and wait for execution of the judgment, as her judgment implies that he did. There is no mention of his attempts to settle the matter without resort to further litigation, which is potentially important: the correspondence exhibited to his witness statement demonstrates that he was not ignoring the judgment but trying to resolve the wider underlying dispute. 

3.15. There also appears to have been no specific consideration at the third stage of the fact that in practical terms this defendant has never had an opportunity to advance his valid defence irrespective of whether service was property effected at his former address. That is related to but different from the point that he cannot be blamed for failure to respond to the claim form because he never received it.

3.16. Standing back and looking at the bigger picture, if the defendant has a viable defence, then by reason of a judgment to which it was not entitled, and which he had no opportunity to contest before it was entered, the claimant will be unjustly enriched at his expense. Visiting those consequences upon him simply because of a 2-year delay in seeking to set the judgment aside during a period when he was undergoing a divorce and his parents became ill might be regarded as falling outside the generous ambit of decisions that were reasonably open to the court when that and all other relevant factors are weighed together.

3.17. This was not a case of a conscious decision being made to disregard the judgment until steps were taken to enforce it. If the Circuit Judge thought it was, she overlooked material evidence pointing the other way. There was no question of the delay here making it harder for the claimant to prove their case at trial, or causing any other form of disruption to this or any other litigation. It does not appear that the Circuit Judge even considered the possibility of a lesser sanction such as an adverse costs order.

3.18. Although the defendant is not immune from criticism, and Ground 2 is not without its difficulties, for the reasons I have explained it surmounts the merits threshold. That being so, there is a compelling reason to give permission on both grounds, so that the Full Court can consider the case as a whole. Overall I am concerned that this may be a case where an injustice has been caused through an inability by the Circuit Judge to see past the delay and consider what the overriding objective required in all the circumstances.

4. A recent persuasive appeal judgment in Car Park Management Service Limited v Charles Akande (Ref. K0DP5J30) indicates that this POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16. On the 10th May 2024, in this cited case, HHJ Evans is quoted that ‘Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim. The Defendant cannot possibly plead his Defence because he does not know what the contractual term is said to be that he has breached and he does not know how he is said to have breached it.’. This is the same case where the particulars of claim fails to mention which part of the contract is breached. Another quote from HHJ Evans is that ‘This is a parking claim. The Particulars of Claim plead in the short form online document that there was a PCN for a contractual breach. It gave the date and the place and the registration number of the vehicle, and it said that the driver had failed to comply with the terms and conditions displayed’. Again, the particulars of the claim for the defendant refers to a contractual breach displaying the date and the place and the registration number of the vehicle but fails to mention which contractual term is breached. Given the similarities in the appeal, the court should strike out the claim using its powers pursuant to CPR 3.4 (SEE EXHIBIT 02)

bendybackpanda

5. DVLA address data may not be accurate. DVLA data is provided for a single (very limited) reason, so a parking operator can invite the keeper to name the driver or to pay, or to inform the keeper they will be liable if not, and about their right to appeal.

5.1. The system is called 'KADOE' (Keeper On Date of Event) because it is 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.

5.2 The KADOE address is not provided by the DVLA as a 'court claim service address' and cannot be relied upon, because it's an address where the vehicle was kept at a historical point in time (which may not be where the keeper lives; it's where the car was reported 'kept' last time the DVLA heard).

5.3 There is no safe presumption that a DVLA vehicle address is or was a valid address where a Defendant can be served, especially months or years later, especially where there is reason to believe letters are not being received. Silence after sending a Notice to Keeper, a reminder and then a Letter before Claim is a clear indicator that the keeper may not live there.

5.4 A claim sent to an old DVLA address with no soft trace checks (costing as low as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the BPA Code of Practice (APPENDIX_6_BPA_COP) and 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.

6.  The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses." The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”

7. Given that more than 4 months have passed from issue of proceedings, and service of the claim was defective (i.e. it was never served), the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process. 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 providing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct name and address for service for this Defendant (address). 

7.1 There are several authorities for this, including the judgment in Boxwood [2021] EWHC 947 (TCC)1 (SEE APPENDIX_2_BOXWOOD), 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 for service of a claim form.”

7.2 In Vinos v Marks & Spencer plc [2001] 3 All ER 784 2 (SEE APPENDIX_3_VINOS) 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.

7.3 In judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch) 3 (SEE APPENDIX_4_CROKE) 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." 

7.4 In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) 4 (SEE APPENDIX_5_PIEPENBROCK) 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.”
8. The Defendant contends that the Claimant did not follow CPR 6.9(3) by not demonstrating proper diligence in using an address where the Defendant no longer lived. Despite receiving no response to their communications sent to the Claimant proceeded to file a claim at that location.

9. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses." The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”  

bendybackpanda

Also - should I be emailing Gladstones Solicitors and PCM Management a copy of the Draft Order and WS I sent to the court?

Coupon-mad

Don't repeat what you said in your WS about Boxwood, Croke, Chan, etc.

You already covered those well so you need far fewer words about them.  Just a nod to which paragraph in your WS adduced that case law.

Remove things in the first person, like this:

"I respectfully request"

This isn't a statement signed by you, it's just a list of case law and how it applies to your case.

Remove 2 and 2.1 which interrupt the point that paragraph 1 introduces.

Remove paras 6 & 9 which repeat each other but are old news and irrelevant to a skelly.

Coupon-mad

Also you can't call VCS v Carr 'exhibit 1' and Akande 'exhibit 2' because your WS already used those exhibit numbers for Chan, etc.

And a skelly doesn't introduce 'Exhibits' because it's not a vehicle for showing evidence.

Just say 'transcript attached'.