2 x CCJ's that i was not aware about

Zbubuman

WITNESS STATEMENT 

I am XXXXX of XXXXXXXX and I am the defendant against whom this claim is made. The facts stated below are true to the best of my belief and my account has been prepared based upon my own knowledge. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

I make this Witness Statement in support of the application for an order that the judgment in this case to:

1.      Be set aside the default judgment dated XX/XX/XXXX  as it was defectively served using an old address for which the defendant hasn’t lived in said address since 2019. 

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

3.      Order for the original claim to be dismissed

 

1.      SET ASIDE THE 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 Judgment against me as the Defendant on XX/XX/XXXX. I am aware that the Claimant is UK Car Park Management Limited, and that the assumed claim is in respect of an unpaid Parking Charge Notice from XX/XX/XXXX at my then residence XXXX. I contest this charge for the reasons outlined in Part 2 of this defense. I also understand that this Claim was served at My Old Address (XXXXX) where I had moved out since December 2019 and the Claim was not served at my then current address (XXXX). Confirmation of this has been in the form a tenancy agreement, utility bills, electoral roll register. See Exhibit XX.

1.3. Since the claim form was not served at the correct address, I thus was not aware of the Default Judgment until 4-April-2024

1.3.1. I discovered a CCJ was lodged onto my name on the 4-April-2024 following an email from ‘SeOUL Estate Agents’ advising we failed the tenant referencing due to undisclosed CCJ’s; as shown in Exhibit XX.

1.3.2. Following this on the same day, 4-April-2024, I immediately obtained a full credit report from ‘Experian’ which was not showing any public record entries. See Exhibit XX

1.3.3. Also on 4-April-2024, I contacted ‘Rightmove’ who conducted the tenant referencing on behalf of ‘SeOUL Estate Agents’ to inquire about the CCJ’s as they were not showing on my credit report; where I was informed that they get their data from ‘Equifax’ which was showing two CCJ’s against my old address XXXXXX.

1.3.4. Following the advice from ‘Rightmove’ on 4-April-2024, I ordered a report from www.trustonline.org.uk which confirmed the two CCJ’s logged against my old address XXXXXX. See Exhibit XX

1.3.5. On 4-April-2024, I tried calling the County Court Business Center to request details of the CCJ, however despite being on hold for over one hour the line got disconnected and by then it was close to 5pm, so I made the decision to try again the following day.

1.3.6. On the morning of 5-April-2024, I called the Country Court Business Center and was promptly emailed details of the claims and guidance on how to fill in the N244 application. See Exhibit XX

1.3.7. On 8-April-2024, I emailed an invitation to Gladstone Solicitors to jointly apply to have the CCJ set aside. An acknowledgement was received immediately confirming receipt of my email and that it would be passed to the relevant department. See Exhibit XX

1.3.8. After allowing for 21 days without a response to my email and offer to ‘Gladstones Solicitors. On 30-April-2024, I started the process of filling in the N244 form and this witness statement.

1.4. I would like to bring to the attention of the court and the claimant that whilst in the process of informing the DVLA about my recent change of address, I was involved in a Road Traffic Accident with Vehicle XXXXXX. The Vehicle was written-off and the salvage was acquired by the insurance company as part of the settlement agreement. The DVLA were notified of this by the insurers. See Exhibit XX

1.5. Above entails, as per CPR 6.9 (4), that proceedings were not validly served because claimant was incorrect in assuming that this was my last known address and did not take reasonable steps to ascertain my current address. This leads to no service, they were not entitled to judgment and the court must set aside the claim.

1.6. I submit that by the virtue of the Claimant sending the letters to my old address, I was not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented me from being able to get this charge cancelled by the landowner or renting agency. If I could have appealed to POPLA or had been informed that the renting agent/landowner could deal with such complaints and cancel charges, I would have done so.

1.7. On the basis provided above, I the Defendant would suggest that the Claimant did not fulfill their duty to use my current address when bringing the claim.

1.8. Considering all of the above I was unable to defend this claim properly. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside.

I have a real prospect of defending this claim because:-

2. ORDER DISMISSING THE CLAIM

2.1 On discovering this CCJ and after promptly contacting the County Court Business Centre on the 5-April-2024 to find out details of the Default Judgment, it was found out that the court papers contained no details of the alleged incident. See exhibit XXXX.

2.2. When the parking scheme was introduced at XXXXX, the claimant’s parking attendants were constantly issuing parking charge notices despite being fully aware through various complaints, that I and other occupiers of the block were still waiting on parking permits to be delivered through the post. Any parking charge notices received were notified to the landowner who immediately informed the claimant to have them cancelled. See Exhibit XX (my only concern with this that 1. this issue was resolved around 3 months after the scheme was introduced, so would have been prior to when these two PCN were issued and I would have had the permit by then. 2. I have no evidence to show, all emails were sent from an old email address I no longer have access to, and whilst I did write to the managing agents of the time requesting a statement, I am not hopeful that they will engage or assist) Should I still leave it in there?

2.2.1 This process also applied to other scenarios (e.g. permit falling of the dashboard). A complaint would be sent to the landowner, who in turn would write to the claimant to have the ticket cancelled. (Same as above, I don't have any emails to back this up?)

2.3 The Defendant understands that the Claimant is a Parking Company which seeks to claim for ‘Parking Charge Notices’ which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

2.4 If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a ‘Parking Charge Notice’, the Defendant thus dispute the claim in its entirety as he does not know the wording of the contract nor does he know the means by which the contract was alleged to come into force.

2.5 The Defendant has at no time tried to avoid paying for any known debt, and was at all times there to be found by a simple trace, a phone call or email. It is submitted that the Claimant should have taken those reasonable steps, and would have known or should have surmised that it was likely that the Defendant was not at the old address, given the length of time from the alleged parking charge and the fact that the Claimant was receiving no reply from the Defendant.

2.6  The Defendant understands UK Car Park Management Limited to be a Private Parking Company that uses ‘Parking Attendants’ in order to issue ‘Parking Charge Notices’. Any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. This includes the requirement to issue the Notice to Keeper within 14 days of the alleged incident. If the Claimant has not complied with the requirements of the Act they cannot claim this charge against the Defendant as the Registered Keeper in any case and where said keeper is unable to identify the driver.

2.8 Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car after over 12 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

2.9 For the Claimant to have obliged the Defendant to provide the drivers details at the time of said breach the Claimant would be required to apply for a ‘Norwich Pharmacal Order’, the Defendant is not aware of any such order being made upon him.

2.10 Furthermore, given the time delay of approximately more than 12 months from the alleged breach of contract, it is unreasonable to expect the Defendant to have a record of who was driving the vehicle at the time of the offence.

2.11 The Defendant further submits that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.11.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car parking street in question and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.

2.11.2. No contract with the Claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to UK Car Park Management Limited.

2.12 On this basis the Defendant believes that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

2.13 Alternatively, if the Claimant disagrees with the above, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least all of the following information:

2.13.1. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge

2.13.2. A copy of any contract it is alleged was in place (e.g. copies of signage)

2.13.3. How any contract was concluded (if by performance, then copies of signage maps in place at the time)

2.13.4. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper

2.13.5. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

2.13.6. If charges over and above the initial charge are being claimed, the basis on which this is being claimed

2.13.7. If Interest charges are being claimed, the basis on which this is being claimed.

2.13.8. Evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a brazen attempt at triple 'recovery' reaching over £300 despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed).

2.13.9. Show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant

2.14. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

2.15. In order to make informed decisions and statements in my defence as keeper of a vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.

2.16 The Defendant has never received any previous court documentation from the Claimant in this matter and was never able to properly challenge the Claimant’s claim. Furthermore, the Defendant puts the Claimant to strict proof that they did post such communications to the Defendant’s old address, which was XXX XXXXX, without ever checking if it was the right address.

2.17 The Defendant believes the Claimant has behaved unreasonably in pursuing the claim against him without ensuring they held the Defendants current and correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

2.18. On this basis I believe that the Claimant has not provided any reasonable cause of action and absent the above being produced in short order, the Defendant asks the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs for attending, namely the £275 Court fee in bringing this set aside case , despite not being shown to be liable for any parking charge at all.

The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

Statement of Truth:

I believe that the facts stated in this Witness Statement are true.

Full Name: xxxxx

(Defendant)

Dated xx April 2024

The other thing, is that after moving address, we had one of our credit cards blocked. Reason was that bank sent statement to the old address and received the letter back marked " not known at this address", got concerned and blocked the card.  Not sure whether to put something about this in the statement?  In my opinion it would show that if the new tenants followed the same process on all correspondence not related to them, Gladstones and UKCPM would have known this is no longer a valid address?

Umkomaas

Make the numbering less complicated. 1,2,3 ......... will suffice. Make it easier for the judge to follow and reference. 

KeithP

Your Statement of Truth needs to be more comprehensive.

Coupon-mad

You've used a really old example instead of the 5 exemplars linked in the CCJ set aside section of the NEWBIES thread.  

The short statement of truth tells us this one is well out if date; the SoT changed more than 4 years ago!

We haven't used a 6 point draft order for over a year or two.  And you DO NOT want the claim to survive the first hearing and continue to have to defend it. Please read the 5 exemplars and you should also be asking for the claims to be struck out, citing CEL v Chan.

I'd remove the whole of point 2 except leave in points 2.16 onwards.

Zbubuman

Thank you all for your input. Here I was thinking i was nearly done.  , Ok back to square one I go. I will have a look at those exemplars and find something more up to date. 

Zbubuman

Ok here I go again.  updated WS 

Case number  

xxxxxxxxxxx  

WITNESS STATEMENT  

I, XXX, of XXX , will say as follows:  

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 XX/XX/XXXX, in default due to a defective service of Claim.  

2.      I was not aware of the claim made against me until I failed a tenant reference check on 04/04/2024. This is when I found out the Claimant had obtained a default CCJ against me.  

3.      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.  

4.      The Claimant had a duty to take reasonable steps to check for the correct address, in accordance with the IPC Code of Practice 22.1 and CPR 6.9, as more than 12 months have passed since the PCN on XX/XX/XXXX and the CCJ on XX/XX/XXXX.  

5.      I have not received any correspondence or notice regarding this matter until I became aware as per paragraph 2 above.  

6.      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.  

7.      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.  

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

THE CLAIMANT FAILED TO SERVE THE CLAIM  

8. I understand that the Claimant obtained a Default Judgment against me as the Defendant on XX/XX/XXXX. I am aware that the Claimant is UK Car Park Management Limited and that the assumed claim is in respect of an unpaid Parking Charge Notice.  

9. 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 on 05/04/2024 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 25 - 32).  

10. The claim form was not served at my current address, thus I was not aware of the Default Judgment until I received notice of the failed tenant reference check on 4th  April 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).  

11. The address on the claim is ADDRESS A. I moved from this address to my current address at ADDRESS B in December 2019. In support of this, I can provide documentation showing my updated address if required, including tenancy agreement, council tax and utility bills.  

12. The fact that there was no response from a series of letters sent to my previous address should have alerted the Claimant to the possibility that I was not residing there. Silence after sending a Notice to Keeper, a reminder and then a Letter before Claim is a clear indicator that the Registered Keeper may not live there.  

13. I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address at which I no longer resided. The claimant did not take reasonable steps to ascertain the address of my current residence, despite having months to establish a valid address. This has led to the claim being incorrectly served to an old address and an irregular judgment.  

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

THE INTERNATIONAL PARKING COMMUNITY CODE WAS NOT FOLLOWED  

15. International Parking Community (IPC) Code of Practice which requires a soft trace to be undertaken was not followed. The IPC Code of Practice 2019 - Version 7, November 2019, clause 22.1 states;  

16. Operators must take reasonable steps to ensure that the motorist’s details are still correct if 12 months have passed from the Parking Event before issuing court proceedings”  

DVLA ADDRESS DATA MAY NOT BE RELIABLE  

18. DVLA data is provided for a single (very limited) reason, so a parking operator can invite the registered keeper to name the driver or pay the invoice or inform the registered keeper they will be liable if not, and notify of appeal rights.  

19. The system, called 'KADOE' (Keeper On Date of Event), is a brief 'snapshot in time' address to enable a parking firm to send a Notice to the registered keeper. 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 updates a VC5 logbook with a new address (or if the DVLA fails to process a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.  

20. There is no safe presumption that a DVLA vehicle address is a valid address where a Defendant can be served. The KADOE address is not provided as a 'court claim service address' and should not be relied upon, as it is only an address where the vehicle was kept at a historical point in time (which may not be where the keeper lives; it is where the car was 'kept').  

21. A claim sent to an old DVLA registered keeper address with no soft trace checks (costing as little as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the IPC Code of Practice, 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.  

22. Prior to being able to complete a change of address application with the DVLA. The vehicle that the claim refers to was written-off as a result of a road traffic incident on 10th February 2020 with the salvage becoming property of the insurance company as part of the settlement agreement. The email received from the DVLA confirming transfer of ownership to the motor trade is attached as Exhibit XX-01  

23. 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.  

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

25. In Collier v Williams [2006] 1 WLR 1945 (CA) LJ Dyson said  
  
26. "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."  
  
27. The same sentiment was echoed by:  
  
28. HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)  
  
29. HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)  
  
30. 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)   

31. 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  
  
32. “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 SHOULD BE STRUCK OUT   

33.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.  

34. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) 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. (See Exhibit xx-02)  

35. Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. (See Exhibit xx-03)  

36. Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. (See Exhibit xx-04)  

37. Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. (See Exhibit xx-05)  

38. The Defendant believes the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.  The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.    

Zbubuman

Cause of Action estoppel **This will be added to the second claim only as advised** and numbering adjusted accordingly  

4.0      Being legally represented, the Claimant knows, or should know, that by detaching or allowing to remain detached, elements of alleged debts and issuing separate claims, each which rely upon essentially duplicate particulars and facts, is an abuse of the civil litigation process.  

The Claimant has issued two claims with identical Particulars with the exception of the Parking Charge issue date.  

Claim 1 xxxxxx   - relates to PCNs issued on XX/XX/XXXX.  

Claim 2 yyyyyy - relates to a PCN issued on the XX/XX/XXXX, relying on the same facts. (for the forum only – PCN are 12 days apart)  

4.1  In Arnold v National Westminster Bank plc [1991] 3 All ER 41 the court noted that cause of action estoppel “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.”  

4.2     In Henderson -v- Henderson [1843] 67 ER 313 the court noted the following:  

(i) when a matter becomes subject to litigation, the parties are required to advance their whole case;  

(ii) the Court will not permit the same parties to re-open the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, or error;  

(iii) this bar applies to all matters, both those on which the Court determined in the original litigation and those which would have been advanced if the party in question had exercised ''reasonable diligence''.  

4.3 Two claims were raised on behalf of the claimant where one would have sufficed; which has doubled the waste to court time and also doubled the cost in setting aside the two CCJ’s.   

4.4  The Claimant filing the first claim and failing to advance the whole case, any cause of action was immediately extinguished for any other similar fact Parking Charges against the Defendant. The courts may estop a second claim where the cause of action is substantially the same.  The Defendant invites the court to dismiss the second claim under the grounds of cause of action estoppel.  In the alternative, the Court is invited to consolidate the claims to be determined together, and to apply appropriate sanctions against the Claimant.    

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

RELEVANT CASE LAW  

39. 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.  

40. 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.”  

41. In the judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch), the claimant was one day late in properly serving the Particulars of Claim to the Defendant and the claimant’s application for relief from sanctions was refused. In section 65 of the transcript of the trial, Deputy Master Marsh stated, “The defendants were entitled to know within the four month period specified in the CPR whether a claim had been made against them and to be able to understand that claim. [...] Unless an extension of time is granted, the claim will cease to have any validity and will be struck out."  

42. 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.  

43. “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 [...]  

44. 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. [...]  

45. 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]. [...]  

46. 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.”  

47. 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.  

48.  CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgement of service only if at the date on which judgment is entered (a) the defendant has not filed an acknowledgement of service or a defence to the claim (or any part of the claim); and (b) the relevant time for doing so has expired. 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):  

49. “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 (my italics). 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).  

50. I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgement of service when "any of the conditions in rule 12.3(1) …was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.  

51. 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  

52. 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).  

53. 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.  

54. 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.  

55. 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.  

56. 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).  

57. I have responded to this matter as promptly as possible. I discovered a CCJ was lodged onto my credit file on the 4th April 2024. On the following day (5th April 2024) I contacted the County Court Business Centre to obtain relevant information relating to this default judgement. On 8th April 2024 I wrote to Gladstones offering to jointly apply to set aside the judgment. Despite allowing them a reasonable amount of time to seek instructions from the claimant, no response was received so on 3rd May 2024, I have submitted my case in order to set-aside this judgement and fairly present my case (See Exhibit XX-06)  

53. 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:  

58. 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:  

 

One question - Am I right in understanding that I do not need to send proof of change of address at this stage (as exhibits), but offer the option to provide these upon request ? 

Zbubuman

draft order below 

CLAIM No: XXX

BETWEEN:
XYZ PPC LTD (Claimant)
-- and --
XXX (Defendant)
______________________________________________
DRAFT ORDER
______________________________________________

IT IS ORDERED THAT:

UPON considering the application of the Defendant to set aside the Judgment by default entered on [date];

AND UPON reading the evidence in support of the application;

AND UPON the court taking note that the Claimant was not entitled to default judgment, having failed to serve on Defendant's usual residential address;

AND UPON more than 4 months having passed (CPR 7.5 refers) from issue of proceedings [date]

IT IS ORDERED:

1. The Judgment by default entered against the Defendant on [date] is hereby set aside.

2. The claim should be struck out as more than 4 months has passed from issue of proceedings [date].

3. Costs of the application be paid by the Claimant to the Defendant in the sum of £275.

KeithP

It's a small point but I think it would be better if the word 'should' was removed from point 2 in your Draft Order so that it reads... 
2. The claim be struck out as more...
rather than...
2. The claim should be struck out as more...

You are providing a draft rather than trying to persuade anyone.

Coupon-mad

Much better. 

There's more you can add!

I think on this forum we should start saying 'expired unserved' instead of the word 'DEAD' as I think Judges will 'get' this better:

THE CLAIM HAS EXPIRED UNSERVED.
I HEREBY CHALLENGE THE JURISDICTION OF THE COURT TO HEAR IT NOW (EFFECTIVELY THAT WOULD MEAN DISPENSING WITH SERVICE). THERE ARE NO EXCEPTIONAL CIRCUMSTANCES TO SUPPORT THE VERY LIMITED COURT DISCRETION TO RETROSPECTIVELY VALIDATE DEFECTIVE SERVICE BY RESURRECTING AN EXPIRED AND UNSERVED (AND HOPELESS) CLAIM.

Use words like this, and some more case law:

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

A Court's discretionary power to validate a defectively served claim is very limited, and only applies where there is ‘good reason’ for the court to exercise the power so conferred.  There is no ‘good reason’ to retrospectively validate the claimants’ service under Rule 6.15.  Further, whilst Rule 6.16 does create a power for a court to dispense with service of the claim form, this only applies in 'exceptional circumstances' and this does not apply in my case.

Tests were established by Lord Sumption’s analysis in Barton v Wright Hassall LLP [2018] 1 WLR 1119 and I have answered those questions in respect of my own case below:

- Did the claimant take reasonable steps to effect service in accordance with the rules?

In my case, no.  An old DVLA address obtained months or years earlier is not a reliable address for service.  Indeed the DVLA do not sell 'keeper data' with any warranty that it can be used or relied upon for service of court papers to a motorist; it is merely a snapshot in time of where a vehicle was once registered.

Addresses change frequently and the parking industry and DVLA know this; hence the International Parking Community's Code of Practice requires steps to be taken to ascertain any new address prior to litigation. Parking operators are not allowed to rely upon DVLA data for litigation purposes and must undertake a Credit Reference Agency 'soft trace' before issuing a claim.

It seems that Gladstones paid lip service to this rule; they must have traced my current address in 2021 because out of the blue, I received a Letter Before Action (LBA).  Why then did they revert to the oldest address for the two claims?  A reasonable interpretation could be that they wanted to obtain default CCJs to pass on to their newly created bailiff arm.

Whatever the reason, it was vexatious, wholly unreasonable and an abuse of process to trace a newer address, write to it once, then - when they received no reply from me - revert to what they knew was an out of date address (where the Claimants had also not heard from me).  Having taken steps to trace it, the newer address used for the LBA had to be used for the claims x 2. But it was not.


- Were the defendants aware of the contents of the claim form at the time when the time for service expired?

In my case, no.  The LBA sent to the correct address out of the blue in 2021 bore all the hallmarks of a scam and offered no information, no photos and no copy of the alleged contract (sign).  I heard nothing more and knew nothing about the two claims disingenuously sent to a known to be older address.

I have only just received the particulars from the CNBC (requested in April 2024) and I knew nothing from UKCPM about any supposedly outstanding parking charges. I believed the wrongly-issued PCNs had all been cancelled This was a block of flats where we lived for around 8 years. The Claimant's atrocious moneymaking 'permit scheme' was unwanted and it was inflicted in residents mid way through our tenancy. At all times we were authorised to use the parking areas. We had issues with UKCPM throughout, starting from the beginning of the scheme where 'fines' were being imposed before we even received the unsolicited permits through the post. We complained to the managing agents and got PCNs cancelled. I had no idea that two unfair charges had continued. When we did receive permits we displayed them as a courtesy, not as an obligation.  We already had a pre-existing right to park so there was nothing offered by UKCPM that was of value. There was no consideration on offer and thus, no contract, so any claims would fall at the first hurdle.

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

The above answer is repeated. It would cause huge detriment for me to have to defend two duplicate boilerplate roboclaims for meritless parking charges imposed in my own old residence where, as a longstanding tenant, I had prior rights to park before UKCPM were inflicted upon us.

I know nothing about these two charges from years ago and do not understand why these PCNs were not cancelled too.  I think UKCPM have since been removed from the site, due to complaints, so I can't gather evidence of their inadequate signage.  I no longer live there and I do not have the PCNs or my old Tenancy Agreement. This is far too late and unfair to resurrect.

Further, the two claims themselves are an abuse in terms of duplication (Henderson v Henderson is the authority which applies to duplicated litigation) and in view of the inadequate POC x 2, shown later in this statement which is a reason in itself to strike both claims out.

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

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

In IDEAL SHOPPING DIRECT LTD & ORS V MASTERCARD INCORPORATED & ORS [2022] EWCA CIV 14. the Court of Appeal upheld a High Court decision that the claimant had not validly served proceedings and there were no good reasons or exceptional circumstances for the court to indulge the erring Claimant by granting a retrospective order validating the attempted service.

Held: CPR 3.10 (General power to rectify following error of procedure) did not enable the court to rectify ineffective service of the claim form and remedy the claimants’ error. That rule should not be used to get around service requirements and the claimants also did not satisfy the requirements under CPR 6.15 or 6.16. Following the approach in Piepenbrock v Associated Newspapers Ltd [2020] EWHC 1708 (QB) ([69]), having considered all the circumstances under rule 6.15, and finding no ‘good reason’, in Ideal Shopping Direct there were similarly no grounds to find the ‘exceptional circumstances’ required under rule 6.16. 

-----------

One question - Am I right in understanding that I do not need to send proof of change of address at this stage (as exhibits), but offer the option to provide these upon request ?

I'm glad you asked. No.

Your evidence of moving and being 'there to be found' has to be exhibited now.  Bank statements, council tax & utility bills show you were there to be found.

You can also do a free trial Credit check and use the results as an exhibit (assuming the result shows your current address).  That's good evidence.  Ooh - and so is Gladstones' LBA sent to the traced address in 2021.  Exhibit that too. It proves they had the last known address gleaned from a Credit Ref Agency yet they decided to revert to the oldest address for the Claim.


You should also be exhibiting CEL v Chan and similar judgments, using this wording which is YET ANOTHER (alternative) argument to support dismissing the claim altogether. Your case has everything!

In the alternative: the claims x 2 should be struck out regardless of the above other abusive conduct, because the POC fail to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5.

The Claimants inexplicably doubled the costs and court time wasted, by filing two separate claims (for parking charges with exact same facts, issued within days of each other). I have only just, in April 2024, seen the two generic (near duplicate) POC, which are reproduced below:

THE DRIVER OF THE VEHICLE WITH REGISTRATION  XXXXXXX (THE 'VEHICLE') PARKED IN BREACH OF  THE TERMS OF PARKING STIPULATED ON THE       SIGNAGE (THE 'CONTRACT') AT XXXXXXX,  ON 28/09/2019  THUS INCURRING THE PARKING    CHARGE (THE 'PCN'). THE PCN WAS NOT PAID     WITHIN 28 DAYS OF ISSUE. THE CLAIMANT CLAIMS THE UNPAID PCN FROM THE DEFENDANT AS THE     DRIVER/KEEPER OF THE VEHICLE. DESPITE DEMANDSBEING MADE, THE DEFENDANT HAS FAILED TO      SETTLE THEIR OUTSTANDING LIABILITY. THE      CLAIMANT CLAIMS                              £100 FOR THE PCN, £70.00 CONTRACTUAL COSTS   PURSUANT TO THE CONTRACT AND PCN TERMS AND   CONDITIONS, TOGETHER WITH STATUTORY INTEREST OF £54.62 PURSUANT TO S69 OF THE COUNTY      COURTS ACT 1984 AT 10.25% PER ANNUM,         CONTINUING AT £0.05 PER DAY.   

THE DRIVER OF THE VEHICLE WITH REGISTRATION  XXXXXX (THE 'VEHICLE') PARKED IN BREACH OF  THE TERMS OF PARKING STIPULATED ON THE       SIGNAGE (THE 'CONTRACT') AT XXXXX,  ON 09/10/2019  THUS INCURRING THE PARKING    CHARGE (THE 'PCN'). THE PCN WAS NOT PAID     WITHIN 28 DAYS OF ISSUE. THE CLAIMANT CLAIMS THE UNPAID PCN FROM THE DEFENDANT AS THE     DRIVER/KEEPER OF THE VEHICLE. DESPITE DEMANDSBEING MADE, THE DEFENDANT HAS FAILED TO      SETTLE THEIR OUTSTANDING LIABILITY. THE      CLAIMANT CLAIMS                              £90 FOR THE PCN, £70.00 CONTRACTUAL COSTS    PURSUANT TO THE CONTRACT AND PCN TERMS AND   CONDITIONS, TOGETHER WITH STATUTORY INTEREST OF £21.66 PURSUANT TO S69 OF THE COUNTY      COURTS ACT 1984 AT 8.00% PER ANNUM,          CONTINUING AT £0.04 PER DAY.
       

In view of those woeful POC I am confident in relying upon a recent persuasive Appeal judgment as authority to support striking out the claims x 2 (in these exact circumstances of typically poorly pleaded private parking claims). Dismissing these two meritless claims is the correct course, with the Overriding Objective in mind.

Bulk litigators (legal firms like the notorious Gladstones with their well-documented connections to the IPC Trade Body) 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 authority:

In Civil Enforcement Limited v Chan (Ref. E7GM9W44) heard on 15th August 2023 and which was also about a N244 'parking CCJ' set aside application (wrong refused at the first hearing), HHJ Murch, sitting at Luton County Court, held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'.

The same is true in this case and in view of the Chan judgment and dozens of similar decisions both at hearings and at allocation stage (see EXHIBIT 5 - Chan and other Judgments) the Court should strike out the two claims, using its powers pursuant to CPR 3.4.

------------

Here's that 'Judgments' exhibit, kindly put together and regularly updated by @Le_Kirk - it's bang up to date with judgments dated April!

https://forums.moneysavingexpert.com/discussion/comment/80753521/#Comment_80753521

It might not be Exhibit 5. Depends on your other Exhibits which must be numbered sequentially based on the order that your WS mentions them.

Oh - finally: you ALSO need to ask in the WS for the two applications re setting aside the CCJs in claim number xxxxxx and claim number xxxxxx to be consolidated and heard together at one hearing, to save time and costs for the court and both parties.

I would repeat that request in the covering emails when you send both the applications.  Cross reference the other case at every opportunity.