COURTS ISSUING DEFAULT CCJS BECAUSE OF THEIR OWN SYSTEMATIC FAILINGS!!

Coupon-mad

Send a WS to Luton Court now and ask that the entire claim be struck out and your £14 fee refunded by the Claimant. Attach CEL v Chan.

LionsShare

Will do. Thanks @Coupon-mad

LionsShare

Hi all, at last have a hearing date for setting aside on 26th Sept.

I have now received an email from DCBL:

We act for the Claimant in the above matter.

We write in regard to your N244 Application to set aside.

Upon review, we note you allege that you filed your defence with the Court within the permitted time frame.

In order for us to review this matter further, please provide evidence to support your allegation within the next 7 days.

We look forward to hearing from you.

Kind Regards,  

Do I respond to this? All evidence has already been sent to courts...

KeithP

They're asking for proof "that you filed your defence with the Court within the permitted time frame".

Seems harmless enough. Can you not do that?

LionsShare

Yes I’m able to do that but wonder why I need to send to DCBL when all the proof has already been sent to the courts. Is it necessary? 

Coupon-mad

I'd say it is necessary to be open and make attempts to resolve the matter and 'narrow the issues'.  By proving to DCB Legal that the defence was sent in time and that this was just a CNBC mess up and nothing more, that narrows the issues and they can shut up about that!  You can also add a paragraph telling them to hurry up and discontinue because you are bored/angry/fed up to the back teeth with their aggressive approach and their client's anti-consumer moneymaking MO.

LionsShare

ok, will respond to them accordingly  Thanks

Johnersh

If the AoS was sent both to the claimant and the court on the same day, there is scope to argue that C had no business applying for a default judgment in any event...

LionsShare

Hi all, latest update on the set aside application - hearing scheduled at Luton CC for 26th Sept.

I did respond to the email from DCBL with evidence of filing my Defence with CNBC and their subsequent Autoresponse. 

I have now received the following Witness Statement from DCBL which they have filed with the court.

Note for point 21. Claim issued 5/2/24.  AOS was sent 18/2/24.  Defence was sent on 8/3/24. Therefore well within the 28 days from service allowed when AOS is filed.

Any advice on next steps appreciated. Thanks.

THE FIRST WITNESS STATEMENT OF [removed by Forum Team]

I, [removed by Forum Team], will state as follows: -

1. I am an employee of DCB Legal Ltd of Direct House, Greenwood Drive, Manor Park, Runcorn,

WA7 1UG. I am duly authorised to make this Witness Statement on behalf of the Claimant. I

make this witness statement in response to the Defendant’s application to set aside Judgment.

2. The facts and matters set out in this statement are within my own knowledge unless otherwise

stated and I believe them to be true. Where I refer to information supplied by others, the source of

the information is identified; facts and matters derived from other sources are true to the best of

my knowledge and belief.

3. I confirm I have reviewed case management systems operated by Direct Collection Bailiffs

Limited (“DCBL”) and my company. I have also reviewed documents provided by the Claimant.

All of which are contemporaneous records of incoming and outgoing correspondence and

telephone calls. I am able to make this Witness Statement from my review.

Background

4. The Claimant offers private car park management services to private landowners; primarily to

manage the way in which motorists are permitted to park whilst on their private land. The

Claimant’s services can include issuing parking charge notices to any vehicles parked in a way the

private landowner does not permit. The Defendant is the recipient of a Parking Charge Notice(s)

(“PCN(s)”) issued by the Claimant.

5. At all material times, the Claimant was accredited by the British Parking Association. In order to

obtain Registered Keeper details from the Driver and Vehicle Licensing Agency (“DVLA”) it is a

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requirement that the operator be a member of one of the two ATA’s, of which each has a Code of

Practice (COP). It is therefore essential that the Claimant’s business ensures compliance with the

COP.

6. As no payment was received, the Claimant took the necessary steps to recover the debt. The

Claimant initially instructed Direct Collection Bailiffs Limited to commence debt recovery action

and letters were sent to the Defendant.

7. The letters referred to above were not returned undelivered, however, due to no contact being

received from the Defendant a trace was conducted prior to the Letter of Claim being sent and the

Claim being issued. The trace confirmed that the address at which the claim was issued was most

likely to be the Defendant’s residential address at that time.

8. A Letter of Claim was served on 11/07/2023. A copy of the Letter of Claim is exhibited to this

statement at “EXHIBIT 1”.

9. The Claim was issued on 05/02/2024, and as the Defendant did not respond to the Claim,

Judgment in default was entered on 13/03/2024.

10. Due to non-compliance with the Judgment, the Claimant then instructed DCBL in execution of a

High Court Writ. Subsequently, an Enforcement Agent has made one attendance to the

Defendants property whereby no contact was made with the Defendant.

11. The Claimant has incurred the costs of obtaining the Writ and further costs have been incurred in

attempt to recover the debt. The costs are addressed later in this statement.

Defendant’s Application to set aside Judgment

12. The Defendant has subsequently filed an Application, dated 01/05/2024 to set aside Judgment. On

the basis that:-

 They filed their defence correctly with the Civil National Business Centre (CNBC)

CPR 6.9 – Service of Proceedings

13. For the avoidance of doubt, the Claim Form was correctly served at the Defendant’s last known

address pursuant to CPR 6.9. Further, in accordance with CPR 6.9(3), the Claimant took all

reasonable steps to ascertain the Defendant’s current address by conducting a TRACE and this

result provided the Claimant with ‘knowledge’ of the Defendant’s address. Furthermore, my firm

have not been made aware by the Court that the Claim Form has been returned as undelivered or

“gone away”.

CPR 12 & 13 – Setting aside or varying default Judgment

14. CPR 13.2 states that a court must set aside a default Judgment which was wrongly entered because

of one or more of the following reasons:-

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(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule

(1) and 12.3(3) was not satisfied;

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3)

was not satisfied; or

(c) the whole of the claim was satisfied before judgment was entered.

14. None of these conditions apply to this matter and as such I now refer to CPR 13.3 which applies

the following tests in order to successfully set aside a Judgment: -

(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to

which the court must have regard include whether the person seeking to set aside the judgment made

an application to do so promptly.

15. I will attempt to deal with each test under CPR 13.1 on an individual basis to hopefully provide

consistency and clarity. In turning first to CPR 13.3(1)(a)(b), I would respectfully submit that the

Defendant has no real prospects of successfully Defending this claim, on the basis that:-

 The Defendant does not dispute that they were the Registered Keeper or Driver of the

Vehicle;

 The signs exhibited at “EXHIBIT 2” outline the Terms and Conditions of parking and the

Defendant was on notice of the Terms upon entering the Land. The Defendant breached

the Terms of parking on each occasion resulting in Charges being issued accordingly;

 Notices to Keeper, exhibited at “EXHIBIT 3” were sent to the Defendant following each

contravention, putting them on notice of the Parking Charges;

 The Defendant has had ample time to challenge the PCNs and / or request evidence in

support of them, if there was any doubt regarding their liability. However, no challenges

have previously been raised, despite correspondence being sent to the Defendant by the

Claimant at “ ”, the address provided by the DVLA as

that of the Registered Keeper of the Vehicle.

16. Turning now to CPR 13.3(1)(b)(i)(ii), I respectfully submit that there is no other good reason as to

why Judgment ought to be set aside, on the basis that:-

 Within their Application the Defendant alleges that they filed their Defence correctly, but

the CNBC was not in receipt of the correspondence. Upon review of evidence provided by

the Defendant on 03/09/2024, it is accepted that an email was sent to the Claim Responses

email address on 08/03/2024 and an Auto-Reply received. However, the Court will be

aware that the deadline for the Defendant to respond to the Claim Form was 26/02/2024. A

copy of the Claim Form is at “EXHIBIT 4” which clearly states that a response must be

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sent within 14 days of the date of service, in this Claim service was 12/02/2024. It is clear

by the Defendant’s own admission that they did not file a defence within this permitted

time frame. It is therefore the Claimant’s position that Judgment in default was correctly

issued against the Defendant, and they remain liable for the same.

 In addition to the above, we refer the Courts to the images at “EXHIBIT 5” taken on the

day of each contravention which clearly show that the Defendant breached the Terms and

Conditions of parking on each occasion. For PCNs 1183522500227 (07/09/2022) and

1299123371424 (03/12/2022) the Defendant parked in a resident’s area without displaying

a valid permit, as can be seen from the images. For PCNs 1183523390034 (05/12/2022),

1183523431818 (09/12/2022), 1183523530009 (19/12/2022), 1183523612344

(27/12/2022) and 1183530090423 (09/01/2023) the Defendant remained on the Land and

did not park correctly within the markings of the bay. It is submitted that the Defendant

was correctly issued with the PCNs and remains liable for the same;

CPR 3.9 – Relief from sanction

17. Having therefore considered all criteria as identified in CPR 13.3, the Court may wish to turn their

attention in particular to the three-stage test in Denton, the consideration of which was also

affirmed by the Court of Appeal in the recent decision of FXF v English Karate Federation Ltd &

Anor [2023], whereby it was confirmed that the Denton principles do apply to Set Aside

Applications. As the Defendant has failed to respond to the Claim Form, an application ought to

have been made for relief from sanctions, as set out in Redbourne Group Ltd -v- Fairgate

Development Limited [2017] EWHC 1223 (TCC). No such application has been made.

18. CPR 3.9(1) provides that the court ought to have regard to the overriding objective, and the need

to deal with such matters fairly and proportionately. Further, in terms of ‘promptness’ of the

Application, I would argue that the same needs to be looked, at not specifically just in terms of the

Application but in the broader context, this also gives rise to consideration of the blatant disregard

of the filing of any Acknowledgment of Service or any Defence to the proceedings.

19. In considering the case of Denton v TH White Ltd [2014] EWCA Civ 906, is a three-stage test to

be applied to any application for relief from sanctions. The test applied is as follows:-

i. The seriousness or significance of the breach.

ii. The reason why the failure or default occurred.

iii. All circumstances of the case.

20. In turning to the first test being the ‘significance of the breach’, I would respectfully aver that any

breach is serious and significant and as a result of which, the second and third ‘Denton’ tests are

triggered. I would submit that the Defendant’s blatant disregard to respond to the Claim is a

serious on. It is anticipated that the Defendant will suggest that as a litigant in person, they cannot

be expected to understand what is required of them, however, the Court is respectfully referred to

the case of Barton v Wright Hassall LLP [2018] UKSC12 and Sir Henry Royce Memorial

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Foundation v Hardy [2021] EWHC817 (Ch) whereby in both cases it was held that litigants in

person cannot expect special treatment.

21. The second test is for this court to consider why the failures/breaches occurred. There is no

satisfactory explanation produced by the Defendant. As the Court will note, the Application

simply concentrates on the Defendant’s allegation that they filed their defence with the CNBC. As

previously stated, whilst it is accepted that an email was sent to the Courts’ mailbox, this is dated

08/03/2024, well out of the time frame in which they were permitted to file a defence to the Claim

(26/02/2024). In light of the above it is submitted that the Defendant failed to comply with the

Court directions and Judgment in default was correctly issued for which they remain liable.

22. The third test is for this Court to consider all of the circumstances to enable it to deal justly with

the application. The failures/breaches committed by the Defendant will have prevented the Court

and the Parties from conducting this litigation efficiently and at proportionate cost. Not only has

Court and Judicial time been expended but the Parties have now been put to additional expense.

This Court must bear in mind the need for compliance with rules, practice directions and Orders.

There has been a fundamental failure by the defendant to act in accordance with that need.

Costs

23. I respectfully seek an Order that the Defendant do pay the Claimant’s legal costs incurred as a

result of the Application made on the basis of their unreasonable conduct to date. Had the

Defendant responded to the Notices, Letter before Claim and Claim Form these costs could have

been avoided. The costs of opposing this application are £156, which is £130 + VAT for the

advocate’s fee for attending the hearing.

24. The Court is minded to consider the regulated costs incurred by the High Court Enforcement

Officers when making any Order in relation to costs, and to consider the Court fee and execution

cost of obtaining the High Court Writ. The total of which being £426.15.

Conclusion

25. For all of the reasons outlined in this Witness Statement, I believe that the Defendant’s application

to set aside Judgment should be dismissed and the Defendant be ordered to pay the Claimant’s

costs.

LionsShare

Just checked MCOL which reads:

Claim History

Your acknowledgment of service was received on 19/02/2024 at 01:05:29

A judgment was issued against you on 13/03/2024 at 19:07:12

Your claim was transferred to LUTON on 08/05/2024