CCJ / I park services / DCBL - Please help with WS / Docs for a set aside.

TonydePony

Hi All, 

Please let me start off with what a valuable resource you have created and a massive thank you to all those that have contributed. I wish I had found this a year ago as I've certainly made some errors on my way regarding the PCN. 

I will attempt to keep this a brief as possible... 

Outline of the key details (CCJ issued late Jan 2024) 

- Court documents issued to an address that I no longer lived in, when they had already received correspondence from the vehicles V5 address and the vehicle remained registered to this address. 

- DCBL 'found' me 6 weeks after the CCJ was issued at the V5 address. with the first I knew of the CCJ.

Timeline

First letter received /3/2023

I Park Services had traced my address through DVLA V5 document. 

‘Appeal’ date /03/2023 (Direct with I Park Services)

I admitted my partner was driving but no name was given and stated that as they were only on the carpark for three minutes this should contribute as a grace period.

Appeal rejected  /03/2023

I offered £2.50 to settle the claim (Removed by Forum Team)

 

Was refused. Cheque sent back to my other address (not where the car is registered) as had two addresses at the time. 

 

10/2023 – Vacated Leased address

 Moved back into the address where the V5 Logbook was registered. (the same address that the initial correspondence was addressed to and magically DCBL found me at 6 weeks after the CCJ was issued.)

 

Received letter from DCBL 07/03/2024

 Notice of Debt recovery (dated 5/03/24) – County Court Judgement dated 29/01/2024 (6 weeks after issuance) for £279.

 

08/03/2024

 Phoned DCBL and DCB Legal ascertained that they had been instructed by I Park Services. Offered them the opportunity to put right their mistakes by agreeing to mutually set aside the claim. Which they categorically refused.

 

 

Case Key facts

PoC – received (Removed by Forum Team)

 

1. THE DEFENDANT (D) IS INDEBTED TO THE      CLAIMANT (C) FOR A PARKING CHARGE(S) ISSUED  TO VEHICLE  (Removed by Forum Team) AT MERE GREEN PAY AND    DISPLAY, SUTTON COLDFIELD, B74 4BH.     2. THE PCN(S) WERE ISSUED ON  (Removed by Forum Team)     3. THE DEFENDANT IS PURSUED AS THE DRIVER OF THE VEHICLE FOR BREACH OF THE TERMS ON THE   SIGNS (THE CONTRACT). REASON:WITHOUT A VALID PAY AND DISPLAY (OR PREPAY ARRANGEMENT)      4. IN THE ALTERNATIVE THE DEFENDANT IS       PURSUED AS THE KEEPER PURSUANT TO POFA 2012, SCHEDULE 4.    AND THE CLAIMANT CLAIMS                      1. £160 BEING THE TOTAL OF THE PCN(S) AND    DAMAGES.     2. INTEREST AT A RATE OF 8% PER ANNUM        PURSUANT TO S.69 OF THE COUNTY COURTS ACT    1984 FROM THE DATE HEREOF AT A DAILY RATE OF £.02 UNTIL JUDGMENT OR SOONER PAYMENT.       3. COSTS AND COURT FEES 

TonydePony

Here is my edited WS that I have edited from a previous thread. 

WITNESS STATEMENT

I am XXXX and I am the defendant in this matter. This is my supporting statement to my application dated 5th May 2024 requesting to:

a. Set aside the default judgment dated XX January 2024 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

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

DEFAULT JUDGMENT

1.1. I was the registered keeper of the vehicle at the time of the alleged offence.

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on XX January 2024. I am aware that the Claimant is XXXX, and that the assumed claim is in respect of unpaid Parking Charge Notices from the XX, March 2023 at XXXX. I contest this charge for the reasons outlined in the attached draft defence.

1.3. The claim form was not served at my current address and I thus was not aware of the Default Judgement until 7th March 2024 following a letter from DCBL; as found in Schedule (X)

The address on the claim is XXXX. I moved to my current address at XXXX on the 23th October 2023. In support of this I can provide a copy of termination of my tenancy agreement, Schedule (X)

 

1.4. The claimant has previously corresponded via the address where the vehicle was V5 registered; Schedule (X)

1.5. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.5.1 I discovered a CCJ was lodged onto my credit file on the 7th March 2024.

1.5.2 On 8th and 26th March I contacted the County Court Business Centre to obtain relevant information relating to this default judgement; Schedule (X).

1.5.3 On 5th April 2024 I have wilfully submitted my case in order to set-aside this judgement and fairly present my case.

1.6. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

1.7. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence despite having made and recieved correspondence from the address where the car was registered and remained so during the duration. This has led to the claim being incorrectly served to an old address and an irregular judgement.

1.8. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. 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.” Furtherance to points raised in 1.3 above.

1.9. Considering the above I was unable to defend this claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful.

TonydePony

Draft Defence 

1.The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.

3. At no point was the car “parked”. It was at the location for three minutes to as evidenced by the Claimants own time stamped photographs. The Defendant will rely on the persuasive appeal court findings in Jopson v Homeguard [2016] B9GF0A9E which determined that dropping off, picking up, loading and unloading or stopping for a short duration due to some small vicissitude is not parking.

4. The Defendant was never served with a Notice to Keeper (NtK) that complied with the Protection of Freedoms Act 2012 (PoFA). The NtK was in fact headed as “Non POFA”. There was no wording as prescribed in Schedule 4. The Claimant cannot simply invoke ‘keeper liability’ at a later stage as can be evidenced by their ‘Reminder’ letter on xxxxx. This legal point has already been tested on appeal (twice) in private parking cases and these transcripts will be adduced in evidence:

i. In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the PoFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the PoFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting ‘on behalf of’ the keeper, which was without merit. Excel could have used the PoFA but did not. Mr Smith’s appeal was allowed and Excel’s claim was dismissed.

ii. In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the PoFA does not invoke any such obligation.  HHJ Gargan concluded at 35.2 and 35.3. “my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion…” Mr Edward’s appeal succeeded and the Claim was dismissed.

5. The Claimant is a member of the Independent Parking Community (IPC) which is a DVLA Accredited Trade Association (ATA). Members of the IPC are required to strictly adhere to the ATAs Approved Operator Scheme (AOS) Code of Practice (CoP). Whilst not regulatory, the CoP does carry weight and is binding on its members. The current IPC CoP, 9th edition, schedule 7, states that at a pay & display (PD) car park, such as at this location, the operator must allow a “minimum consideration period” of 5 minutes before they are allowed to issue a parking charge. As will be evidenced, the car was on the relevant land, according to the Claimants own time-stamped photographs, from 13:16:16 to 13:20:43, a total duration of 4 minutes and 26 seconds. By issuing a Parking Charge Notice (PCN) before the obligatory consideration period has been concluded, the Claimant is clearly in breach of the IPC CoP.

6. It will also be evidenced from the Claimants own and the Defendants subsequent photographs that no contract could have been offered or made that could bind the driver due to the lack of any prominent or obvious signs at the location. No signs with any terms were visible and the location lacked any prominent warning that this was private land when entering, which is another breach of the IPC CoP. Furthermore the claimants own photographic evidence shows that no signage was in place at the entrance , which now has been recified and a small sign has been errected.

7. The Claimant is put to strict proof that they have a valid agreement flowing from the landowner giving them authority to regulate parking and initiate court proceedings in their own name on the land in question.

8. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

Shamelessly edited from Debszzzz2 thread  https://forums.moneysavingexpert.com/discussion/6506961/i-park-services-dcb-legal-defence?utm_source=community-search&utm_medium=organic-search&utm_term=mere+green+pcn

 Which is in fact the same car park! 

Coupon-mad

1.5.3. "Wilfully"

NO.  Remove that word people keep copying from an old example.  Google what it means!

DO NOT include a draft defence or you'll potentially allow a rookie Judge to hold a mini-trial (of the PCN claim) at your fee expense, instead of the first hearing concentrating on just setting aside the CCJ to allow you to defend the case at a later hearing.

This is the wrong date:

"application dated 5th May 2024"

In fact DATE YOUR APPLICATION 30th MARCH (not April) as it will show you acted in the same month you found out about the CCJ.

And what do you mean by 1.4.  Which address do you mean?  Old or new? It's unclear.  If they had your current address you need to say they did.

Change all your paragraph numbering to normal sequential 1. 2. 3. 4. numbering.

You need a Draft Order (Word doc) as well as your PDF WS (no defence yet please).

It looks like you read a pretty old CCJ set aside WS example because you haven't even mentioned the legal basis of your application: CPR 13.2 nor the usual stuff about '4 months dead' (which will be the case by the time you get a hearing).  Nor have you mentioned the CPRs requirement to check addresses of defendants before litigation.

Read the five CCJ set aside WS examples in the NEWBIES thread which are successful (completed) cases and include better wording and a Draft Order. 

nopcns

@Debszzzz2 has told me that they are still waiting for a response to the defence for that claim at that location.

If you're going to use chunks of that defence, you will have to make sure that all parts of it are relevant to your situation. You are going to be signing a statement of truth. For example, in your case, was the original NtK marked "non-POFA"? If you don't know or it wasn't, signing a statement of truth can land you is world of hurt with the court.

TonydePony

Thanks again for your wisdom! 

Coupon-mad - sorry about my initial effort!

Nopcns - Thank you for the heads up. The case is strikingly similar. Four minutes were spent in the carpark and four months later than Debs PCN. I very much doubt that POFA status was granted during that time. I do recall googling what it meant a year ago, hence my ambiguous response in appeal. However, I have requested a SAR to ascertain. In which they're dragging their feet. 

TonydePony

Updated WS. 

Notes

- Paras 30-50 are cut and paste case law / 4 month dead from hallie28 thread. 

https://forums.moneysavingexpert.com/discussion/6446457/ccj-for-pcn-i-knew-nothing-about#latest 

- Paras 26/27 are taken from the updated IPC code 



Any feedback is much appreciated!

WITNESS STATEMENT OF DEFENDANT

1.         I am the Defendant in this matter and I make this witness statement in support of my application to set aside the County Court Judgment (CCJ) entered against me on 14/11/2021, in default due to a defective service of Claim.

2.         Order for the original claim to be dismissed.

3.         Order for the Claimant to pay the Defendant £275 as reimbursement for the set aside fee.

DEFAULT JUDGEMENT

 

4.         I was the registered keeper of the vehicle at the time of the alleged event.

5.         I understand that the Claimant obtained a Default Judgement against me as the Defendant on xx January 2024. I am aware that the Claimant is I Park Services Ltd and that the assumed claim is in respect of an unpaid Parking Charge Notice from xx March 2023.

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

7.      Whilst I am unsure which date the claim was issued, it has been more than four months since the CCJ was issued, during which time I have not been aware of the claim or the CCJ. As per CPR 7.5, the claim should now be dismissed. 

8.         I believe that I have a strong defence to the claim, and should it not be dismissed, I wish to have the opportunity to defend it properly as per CPR 13.3.

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

 

  

SEQUENCE OF RECENT EVENTS

10.       The claim form was not served at my current address and I thus was not aware of the Default Judgement until 7th March 2024 following a letter from DCBL; as found in Schedule (X)

11.       The address on the claim is XXXX (address . I moved back to my current address at XXXX on the 23th October 2023 (address A). Throughout this time I always had access to correspondence sent to address A. In support of this I provide a copy of my tennency agreement, termination of my tennacy agreement and bank statements. Schedule (X)

 

Nb – note the dates on schedule; intitial tennacy period and email and postal address from IPS. Proves I replied from address A whilst I maintained a tennacy contract under address B. Further to that they had my email address, which is present as I filed under the same address. Sceenshot of email search.

 

12.       The claimant has previously corresponded (Address A) via the address where the vehicle was V5 registered; Schedule (X)

 13.       On 8th and 26th March I contacted the County Court Business Centre to obtain relevant information relating to this default judgement; Schedule (X).

14.       In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

15        On 5th April 2024 I have wilfully submitted my case in order to set-aside this judgement and fairly present my case.

 

Nb - Is it worth mentioning I’m currently abroad on my honeymoon and the difficulties of doing everything by proxy?

 

THE CLAIMANT FAILED TO SERVE THE CLAIM

16.       I understand that the Claimant obtained a Default Judgment against me as the Defendant on 29/1/2024. I am aware that the Claimant is I Park Service Ltd and that the assumed claim is in respect of an unpaid Parking Charge Notice (PCN).

17.       CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."  As I have not had any correspondence in relation to this matter, other than the brief case details emailed to me today from the courts, I am unsure of the specific dates that the claim was made. Nonetheless, it is clear that the Claimant, having obtained a previous address from the DVLA and having received no response, did not perform the requisite "reasonable diligence" required to find my correct address to serve the claim form in. Had reasonable diligence been taken, my personal details are found in multiple public sources, such as the electoral register, DVLA, HMRC. The claimant did not have any contact with the defendant, and thus should have considered they had obtained incorrect details. It appears that the claimant continued to issue correspondence to the incorrect address intentionally, in line with the concerns raised by the government regarding this abhorrent industry (Relevant case law cited below in paragraphs 30 - 37).

 

18.       The claim form was not served at my current address, thus I was not aware of the Default Judgment until received the letter dated 5th March 2024 on 7th March 2024. This is a breach of CPR 13.2 (a) as the claim form was never served to my current address. Due to this, the judgement was wrongly entered as I was unable to submit an acknowledgement of service in the absence of notification of the case (CPR 13.3).

19.       The address on the claim is ADDRESS A. I moved from this address back to my current address at ADDRESS B in October 2023.

20.      I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact address at the time of the claim. I was therefore denied the opportunity to defend the claim. 

 21.      On that basis, I believe the Claimant has not adhered to Civil Procedure Rules (CPR) 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The Claimant has access to my email address and the address where the initial PCN was issued to.  This has led to the claim being incorrectly served to an old address and an irregular judgement.

22.      Under CPR 13.2 The court must set aside a judgement entered under part 12 if judgement was wrongly entered.  Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ must be set aside.  In the alternative, CPR 13.3 applies due to the circumstances, which represent good reasons to set the CCJ aside, and in view of the fact that the Defendant acted promptly and has good prospects of defending the claim in the event that the court does not strike it out for want of service within 4 months.

23.      According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

24.      Furthermore, former Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. 

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 judgements. 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.” 

25.       International Parking Community (IPC) Code of Practice ,which I Park Services is a member, requires members to be responsible for improperly issued Parking Charges. Although not in affect at the time of issue of the PCN further highlights the legal grey areas that these parking firms operate in. The IPC Code of Practice 2024 - Version 9, 1st January 2024, clause 28.3 states;

 26.       Where incentive schemes are employed, Operators should keep in mind that it is they that are ultimately responsible for improperly issued Parking Charges (italics my own) and that there may be ramifications should members of their staff (or Self-ticketers) issue Parking Charges fraudulently.

 

ADDRESS DATA MAY NOT BE RELIABLE

27.       A claim sent to an old address (address when the claimant had the vehicles registered keeper address (Address A) and email on record fails to meet the IPC Code of Practice. Furthermore no soft trace checks (costing as little as 29 pence and offered free by debt collectors connected to the parking industry) were undertaken as I was clearly 'there to be found' as Direct Collection Bailiffs Ltd contacted myself 6 weeks after the default judgement was entered by the court. They have failed 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.

28.       Considering the above, I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside, and I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful.

29.       There is a wealth of case law making reference to the failures of parking companies to correctly ascertain the addresses of defendants. Of note:

TonydePony

The cut and paste bit...

30.       In Collier v Williams [2006] 1 WLR 1945 (CA) LJ Dyson said

31.       "What state of mind in the server is connoted by the words "last known"? … As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word "known". In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, i.e. knowledge which he could have acquired exercising reasonable diligence. We arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments."

32.       The same sentiment was echoed by:

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

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

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

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

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

CLAIM IS DEAD AS MORE THAN 4 MONTHS HAVE PASSED FROM THE ISSUE DATE OF PROCEEDING

RELEVANT CASE LAW

38.       Case law precludes the court from resurrecting a dead claim more than 4 months after it was improperly served and does not give the courts any scope to do so.

39.       There are several authorities, including the judgment in Boxwood [2021] EWHC 947 (TCC), which are reminders 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.”

40.       In the judgement 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." 

41.       In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB), 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.

42.       “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 [...]

43.       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. [...]

44.       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]. [...]

45.       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.”

46.       In 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.

47.       CPR 12.3(1) states that a claimant may obtain judgement 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. In this case, the claim form was not validly served in [month/year] due to failure to check for a current address (CPR 6.9 (3)), therefore the time limit for acknowledging service has 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. 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):

48.       “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. CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgement of service only if (a) the defendant has not filed an acknowledgement of service or a defence and (b) the relevant time for doing so has expired. 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).

49.       I do not see it as a draconian consequence that a judgement, 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.

50.       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.”

 

THE CLAIM IS DEAD

51.       Continuing a dead 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). 

52.       The Claimant is wholly responsible for failing to serve the claim correctly within the 4 months (as required by CPR 7.5) and as a result this claim is dead.

53.       The Claimant should not be given extra opportunities to waste the Court’s time after failing to follow pre-action protocols for debt claims, breaching the IPC code of practice and the CPRs about taking 'reasonable steps' (CPR 6.9) to check a Defendant's address.

54.       If the Claimant believes they still have a claim then filing afresh is the only way forward. The Claimant may send a ‘Letter Before Claim’ to the right address, this time following the pre-action protocol for debt claims. The court is reminded that this Defendant has received nothing to build any defence on. No claim form and no detailed particulars of the claim have ever been sent to the Defendant’s current address.

55.       This claim should be struck out as more than 4 months have passed (CPR 7.5 refers) from issue of proceedings [date] and service of the claim was defective (i.e. it was never served).

56.       Considering the above I was unable to defend this claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful. 

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. 

Signed ________

Date __________

DRAFT ORDER
CLAIM No: XXX
BETWEEN:
I Park Services Ltd (Claimant)
-- and --
XXX (Defendant)

UPON reading the defendant’s application dated XX March 2024

IT IS ORDERED THAT:

1. The default judgement dated xx January 2024 be set aside. 

2. The claim struck out due to the claim form having not been served within 4 months of issue
3. The Claimant do pay the Defendants costs of this application of £275 on an indemnity basis.

Coupon-mad

Yes get that sent by email to the CNBC applications team today - then ring up to pay the fee on Monday - but:

- you have a wrong 2021 date in the first paragraph

- you still have that wrong word wilfully!

"15        On 5th April 2024 I have wilfully submitted my case in order to set-aside this judgement and fairly present my case."

- 'judgment' (legal) is also spelt wrong above

- remove the word 'fraudulently' from 26.   Never ever accuse criminal offences in the small claims stage.  Can get you into trouble.

Is it worth mentioning I’m currently abroad on my honeymoon and the difficulties of doing everything by proxy?

Yes briefly at the start but add that you have acted promptly and your application fulfils all considerations in CPR 13.2 and 13.3.

TonydePony

Hi All,

Just a quick update to my set aside. It looks as if the Judge did not receive my WS and Schedules bundle when they have looked over my case. This is after I have submitted by email three times, the first and second to the CNBC and the third submission was after receiving an email from the County Court stating that they were not forwarded the bundle and to resend. Which they received two days before the Judge looked over the case. I appreciate that the Judge has given me a second chance in allowing me to resubmit, but it's apparent that they have not seen any of the bundle as they have included in the judges correspondence how to write the verbatim statement of truth! 









Do I now have to prepare a draft defense as per para 5 of the order? I was under the impression for a set aside I just needed to prove that I was not in receipt of summons and that I was there to be found. i.e that the bailiffs found me six weeks after the CCJ was issued. And that I had a reasonable chance of defending the claim. 

Coupon-mad

There is no summons.

If the Order now says do something, YES you must. So you must do a draft defence immediately and will be emailing the local court everything and marking it URGENT and with the claim number in the subject line, and in the body, refer to the Order by date.