CCJ SET ASIDE - NO INFORMATION ON THE PCN IN QUESTION

bendybackpanda

Would you mind reviewing my new skeleton argument ?

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.Given that more than 4 months has 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 right address, after furnishing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct address for service for this Defendant, which is XXX. –

2.1 There are several authorities for this, including the judgment in (VCS vs Carr - Reference: CA-2024-001179) to be heard at the Court of Appeal this year, which is appended within transcript attached. The relevance of VCS vs Carr to this case `is twofold`:

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.

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 referred to the defendant being a tenant of the flat is therefore baffling. His reasoning does not depend on how many calls there were.

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.

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 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.

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.

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.

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

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

2.2 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 (transcript attached)

2.3 The judgment in Boxwood [2021] EWHC 947 (TCC)1(see original WS), 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.”

2,4 In Vinos v Marks & Spencer plc [2001] 3 All ER 784 2 (see original WS) 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.

2.5 In judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch) 3 (see original WS) 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." 

2.6 In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) 4 (see original WS) 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.

bendybackpanda

3.  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.

3.1 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.

3.2 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).

3.3 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.

3.4 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 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.

4. 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 xxx, the Claimant proceeded to file a claim at that location.

bendybackpanda

I dont know whether its worth mentioning but I just realised that as the PCN was received at our residence, our VRN is registered with PCM for the residents car park permit system here. SO PCM would have been easily able to see our current address and when we moved in so they could have issued to the claim to the correct address.

Coupon-mad

bendybackpanda said:

I dont know whether its worth mentioning but I just realised that as the PCN was received at our residence, our VRN is registered with PCM for the residents car park permit system here. SO PCM would have been easily able to see our current address and when we moved in so they could have issued to the claim to the correct address.

Yes. Add it.

But your skeleton is too long and contains stuff that reads more like a Witness Statement.  Such as 'The Defendant submits that'.

Keep that version to help you at the hearing but the actual skelly is meant to be bare bones (hence the name).

It should be a concise summary of the legal arguments, CPR and case law.

This should read 'must':

CPR 13.2 applies and the CCJ should be set aside.

And re VCS v Carr I wouldn't call the preliminary finding a 'judgment' personally:

"2.1 There are several authorities for this, including the judgment in (VCS vs Carr - Reference: CA-2024-001179) to be heard at the Court of Appeal this year,"

bendybackpanda

Thanks - so I shouldn't include the exerts from VCS vs Carr ? 

Coupon-mad

I would keep that version as your crib sheet and in the actual skelly just quote one killer paragraph that most supports your case and then say 'see also paragraphs xx, xx, xx '

At the hearing be ready to read them out or be guided by the Judge.

bendybackpanda

Thank you - to confirm when I email the skeleton argument should I cc Gladstones?

Coupon-mad

Yes, you must show them everything you send to the court.

bendybackpanda

Happy Monday !

I have received this today from Gladstones. 

We acknowledge receipt of your recent correspondence. 

 

We confirm we will consent to an application subject to the below: 

 

a)     Payment is made of the judgment amount in the sum of £293.93

(payment can be made via the bank details below ensuring our full reference is quoted when making payment)

b)     You  accept liability for the above amount and liability for the costs of your application.

c)     You  agree not to seek any order as to costs from our client.

 

 

Please confirm in writing that you are agreeable to the above conditions. If in agreement, you will need to provide a draft Consent Order for our agreement.

 

Le_Kirk

Are you prepared to pay the £293.93 PLUS the cost of application of your N244?