Another surprise CCJ, served at old address

DubbleYewGee

Recieved this little delight in the mail yesterday, 02/05/24.



Logged onto clearscore to confirm it's legit.
Claim lodged at previous address, not recieved any previous correspondence.

Phoned CNBC and asked for particulars of claim, name of claimant (Vehicle control services, who are an IPC member), and their solicitor (ELMS legal LTD). I also asked for the date the claim was issued and was told the claim was served on 11/03/24 - do I need to call back and ask once again for the claim issue date? Do I need a copy of the judgement?

THE CLAIM IS FOR A BREACH OF CONTRACT FOR    BREACHING THE TERMS AND CONDITIONS SET ON    PRIVATE LAND. THE DEFENDANT'S VEHICLE,       XXXX XXX, WAS IDENTIFIED IN THE XXXX XXXX CAR PARK ON THE 06/09/2023 IN BREACH OF THE      ADVERTISED TERMS AND CONDITIONS; NAMELY      PARKED WITHOUT DISPLAYING A VALID            TICKET/PERMIT. AT ALL MATERIAL TIMES THE     DEFENDANT WAS THE REGISTERED KEEPER AND/OR   DRIVER. THE TERMS AND CONDITIONS UPON        ENTERING PRIVATE LAND WERE CLEARLY DISPLAYED AT THE ENTRANCE AND IN PROMINENT LOCATIONS.  THE SIGN WAS THE OFFER AND THE ACT OF        ENTERING PRIVATE LAND WAS THE ACCEPTANCE OF  THE OFFER HEREBY ENTERING INTO A CONTRACT BY CONDUCT. THE SIGNS SPECIFICALLY DETAIL THE   TERMS AND CONDITIONS AND THE CONSEQUENCES OF FAILURE TO COMPLY, NAMELY A PARKING CHARGE   NOTICE WILL BE ISSUED, AND THE DEFENDANT HAS FAILED TO SETTLE THE OUTSTANDING LIABILITY.  THE CLAIMANT SEEKS THE RECOVERY OF THE       PARKING CHARGE NOTICE, CONTRACTUAL COSTS AND INTEREST.                                                                                 

I ended my tenancy at this old address on 31/07/23.

Equifax shows my current address available on my credit report Aug 23, so they could (should!) have used this as I'm sure DCBL now have one month later.

Alleged event occured 06/09/23.

I changed my V5C address in October.

CCJ on 27/03/24.

I've read through the newbies thread and subsequent posters in a similar situation. I'm hoping I can get this set aside as per CPR 6.9(3).

Will sending a SAR to VCS be helpful as it may prove they failed to adequately trace me? Though it would take some time for any reply.

I plan on starting with a letter to VCS/ELMS to join in a consent order as per @troublemaker22Char_LoT3's thread. It'll need editing as VCS are an IPC member and so part does not apply. I can't find any similar statements in IPC's code of conduct unfortunately. Similar only applies only when 12 months have passed.

22.1 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.

In the meantime I will begin drafting a witness statement. I know I need to also show I have a reasonable prospect of defending the claim, but I believe that the 4 months dead rule (CPR 7.5) doesn't apply here given the shorter timeframes. I'll also need to remove this from the initial letter leaving me with little to go on. Not sure what else I can rely on here as that seems to be the template defence for getting the claim struck out.

Really appreciate any help that anyone can offer. I'll put a draft of my letter to claimant and then my WS here to be scrutinised.

Coupon-mad

 I can't find any similar statements in IPC's code of conduct unfortunately. Similar only applies only when 12 months have passed.

I agree, so leave the IPC CoP out.  Definitely email Elms Legal but show us your draft first.

You have to act promptly, so while you wait to see if Elms will reply, start on your WS and Draft Order. 

Read today's latest posts in the thread by Zbubuman which is hot off the presses with the latest case law to get a CCJ set aside application over the line where an old address was used by the Claimant. 

That's the newest example we have and pretty much spoon-feeds a Judge into realising why the claim must be dismissed. 

HOWEVER:

His/her case is very specific to certain issues (two claims not one), woeful POC and stuff about Gladstones solicitors, but weed the irrelevant bits out.

He/she also pointed out to us that the N244 fee has gone up to £303 (apparently the cost 'without a hearing' is £119 now).  Heavily weighted to deter Defendants from fighting back.  Appalling from the MoJ, especially given they didn't increase claim filing fees for Claimants.

Anyway when drafting your WS, bear in mind that you won't be able to say that "the claim has expired" (yet) but you will at the end of July - probably just before your hearing - if the claim has not been served to the right address.

So I think you'll be doing the email to Elms, hearing nowt, then putting in your N244 this month without fail, as time is vital, THEN diarise the end of July to send a skeleton argument with all the case law about the claim being expired.


Note for other regulars:

I am beginning to think we should stop telling people to ask the CNBC for a copy of the POC before N244s are filed, in cases like yours where the claim is still within the 4 months.  I think it will be better in future, not to get POC within the 4 month period and instead put in the N244 without seeing the POC and wait until the claim has expired.

Then ask the CNBC for a copy, after the 4 months has passed but before the hearing.  My reasoning is that it is better (going by the Barton v Wright Hassall case) not to gave the POC 'served' by email by the CNBC before the 4 months limitation expires.

Read the 'tests' (questions) arising from the Barton case quoted by @Zbubuman and I think the regulars will see where I am coming from.

Not that this new idea I am musing helps this OP but they will get their CCJ set aside anyway.

DubbleYewGee

Many thanks for your reply @Coupon-mad.

URGENT

Dear Sirs,

VEHICLE CONTROL SERVICES (THE ‘CLAIMANT’)  V [                        ] CLAIM REFERENCE [             ]

This is an invitation to your client Vehicle Control Services to jointly apply to the court to set aside the CCJ in respect of claim XXXXXXXX.

On 02 May 2024, I received the attached letter dated 30 April 2024 from Direct Collections Bailiffs Limited (‘DCBL’). This came as a tremendous shock as it is the first and only communication I have received from the Claimant or any organisation representing the Claimant in relation to this claim.   

I made immediate enquiries of the CNBC from which I was able to establish that:

1.       the claim relates to an alleged parking event in September 2023;

2.       the claim form was sent to an old address at which I no longer reside; and

3.       if I had been given the opportunity to do so, I would have successfully defended the claim.

I did not receive any pre-claim correspondence, nor did I receive the claim form or any particulars of claim and was thus deprived of the ability to defend the claim. The Claimant is well aware that people move home from time to time. They also know that I did not respond to any communications sent to me at my old address.

This situation is explicitly dealt with in the Civil Procedure Rules which provide at CPR 6.9(3):

 (3) Where a claimant has reason to believe that the address of the defendant … is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

If the Claimant had taken the actions required by the Civil Procedure Rules my current address would have been found easily, which is obviously what DCBL did before sending their letter dated 30th April 2024. If those actions had been performed at the correct time rather than after judgment, I would not have been deprived of the ability to defend the claim.

By reason of the Claimant’s breach of the Civil Procedure Rules, which amounts to an abuse of the process of the Court, the claim form was never properly served and the judgment must be set aside at the Claimant’s expense.

In view of the foregoing, I invite the Claimant to join with me in an application to set aside the judgment and dismiss the claim, with the Claimant paying the court fee and no order as to costs.

Please respond to the above offer as soon as possible so that, if the offer is acceptable to the Claimant, we can work together to right the wrong that the Claimant has done to me.

To give you a reasonable time to take instructions and for us to agree a suite of documents for the Court, I am willing to defer making a unilateral application to set aside the judgment until 4 pm on XX May 2024. If a joint application has not been made by that time, I intend to instruct a solicitor to apply to the Court unilaterally for an order setting the judgment aside, striking out the particulars of claim, dismissing the claim and awarding costs against the Claimant on a full indemnity basis.

If your client fails to recognise the value of the above far cheaper resolution, then an application will be made to the CNBC without consent, and your client will be liable for all costs.

You are hereby warned NOT to fake a consent order with the court at a later stage.

Pease respond by immediate return.

Yours faithfully,

Again, I feel this is unfortunately somewhat barebones as I cannot reference the IPC CoP or "...now too late for the particulars of claim to be re-served". That said it seems I should not expect a reply in any case. Assuming no issues highlighted I intend to send this off today or tomorrow.

I shall begin drafting my WS, DO this week.

Coupon-mad

Just a typo, which might be in the original:

"Pease respond by immediate return."

The rest is good.

DubbleYewGee

Here is what I've got so far. Any suggestions are appeciated & thanks in advance! A few things I am unsure on:

1. I have only focused on getting the set aside at this time. On 11/07 I'll know for sure that 4 months have passed since the issue date, and so I can send my skeleton argument to get the claim stuck out, right?

2. I haven't referenced CEL v Chan either, should I do so? The POC mentions "PARKED WITHOUT DISPLAYING A VALID            TICKET/PERMIT" but is clearly otherwise vague autofill nonsense.

3. I assume I leave the date in para 3 of my DO blank as I do not know the exact date the 4 months will be up? 
_________________________

Vehicle Control Services LTD

V

MR XXXX XXXXXX

Case number

XXXXXXXX

Witness statement

I, XXXXXXXX, of XXXXXXXXX, being the Defendant in this case will state as follows;

1.      I am the defendant in this matter and make this witness statement in support of my application to set aside the County Court Judgement (CCJ) entered against me in default on 27/03/24, and recover costs from the claimant, due to a defective service of claim.

2.      I was not aware of the claim made against me until 02/05/24 when I received a letter (Exhibit XX) dated 30/04/24 from Direct Collection Bailiffs Ltd (DCBL). This is when I became aware that the claimant had obtained a default CCJ against me.

3.      I immediately made enquiries to the Civil National Business Centre (CNBC) and established the following:

a.      The claimant was Vehicle Control Services LTD.

b.      The claim was made with respect to an alleged unpaid parking charge on 06/09/2023.

c.      The claim form was served at my old address XX XXXXXX XXXXX on 11/03/24.

4.      The claimant had a duty to take reasonable steps to serve the claim form at my current address under CPR 6.9 (3).

5.      I have received no communication from the claimant or their representatives, including claim form or detailed particulars of the claim, until the letter from DCBL, thus I was denied the opportunity to defend the claim. If I were to have received these, I believe I would have been able to successfully defend against the claim.

6.      My application relies upon the “mandatory set aside” rule in CPR 13.2 (in the alternative, 13.3).  

THE CLAIMANT FAILED TO SERVE THE CLAIM

7.      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 02/05/2024 from the courts, I am unsure of the specific dates that the claim was made. Nonetheless, it seems 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.

8.      Had this reasonable diligence been performed my details would have been easily found, as they were by DCBL one month after the default judgement. 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 with the aim of obtaining a default judgement, in line with the concerns raised by the government regarding this abhorrent industry.

9.      I moved out of XXXXXXX, and into XXXXXX on XX/XX/XXXX. In support of this I provide:

a.      Mortgage agreement at my current address (Exhibit XX) dated XX/XX/XXXX.

b.      Council tax bill at current address (Exhibit XX) dated 14/08/2023.

c.      Utility bill at current address (Exhibit XX) dated XX/XX/XXXX.

d.      Redacted Checkmyfile.com credit report (Exhibit XX) showing I was “there to be found” at my current address.

10.  I was not aware of the claim or the default judgement until I received the letter from DCBL on 02/05/24 as the claim form was not served at my current address. This is a breach of CPR 13.2 (a) as I was unable to submit an acknowledgement of service in the absence of notification of the case. Under CPR 13.2 the court must set aside a default judgement where any of the conditions in rule 12.3 (1) and 12.3 (3) was not satisfied.

11.  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. In this case, the claim form was not validly served 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).

12.  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:

13.   "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 acknowledgment of service only if (a) the defendant has not filed an acknowledgment 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 acknowledgment 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).

14.  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 acknowledgment 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.

15.  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 acknowledgment. He is simply not in default at all."

16.  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. 

 

DVLA ADDRESS DATA MAY BE UNRELIABLE

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

18.  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.

19.  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, certainly months later when no response has been received to prior communication at this address. 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'). 

20.  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 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.

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

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

23.  "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." 

24.  The same sentiment was echoed by: 

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

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

27.  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)  

SET ASIDE APPLICATION WAS MADE PROMPTLY

28.  I have responded to this matter as promptly as possible complying with CPR 13.3 (2):

a.      On 02/05/24 I discovered the default judgement against me.

b.      On the same day, 02/05/24, I contacted the CNBC to obtain further details relating to the judgement.

c.      On 07/05/24 I wrote to the claimants representative offering to jointly set aside the judgement due to a defective service of claim with the aim of reducing costs and to avoid taking up the time of the court. Unfortunately my offer was declined.

d.      On XX/05/24 I have submitted my application to set aside this judgement and fairly present my case.

29.  Considering all of the above, I was unable to defend myself against this claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside. I ask the Court to kindly consider the reimbursement of the fee of £303 from the claimant should this request be successful. 

STATEMENT OF TRUTH

30.  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. 

DRAFT ORDER

______________________________________________

IT IS ORDERED THAT:

UPON considering the application of the Defendant to set aside the Judgment by default entered on 27/03/24;

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;

IT IS ORDERED:

1.      The Judgment by default entered against the Defendant on 27/03/24 is hereby set aside.

2.      Costs to be reserved.

3.      Unless the Claimant serves a copy of the claim form on the Defendant by 4pm on XX/XX/XX paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £303 and the claim shall be struck out.

4.      Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 1.2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £303.

5.      All enforcement be put on hold pending the outcome of the application.

1505grandad

A heads-up  -  there is no middle "e" in Judgment in this context  -  Google CCJ

Coupon-mad

Apart from changing all the misspellings of judgment (legal meaning) that looks good (but the Draft Order is a separate Word document).  The WS is a signed & dated PDF.

Nellymoser

Didn't receive some PCN correspondence... please support this.
So many people don't receive 1st/2nd pcn but the £170 payment due letter often manages to drop through letter boxes. PPCs always claim their letters were sent though offer no evidence to prove this. A letter's issue date is not it's sending date nor does it prove the letter was sent.

Since PPCs CHOOSE NOT to provide evidence of their posting date and delivery we must continue to press gov to ensure they do. Please sign/share these petitions.

Require communications from Private Parking companies to be traceable/trackable. https://petition.parliament.uk/petitions/652355

Immediately Reintroduce Private Parking Code of Practice. https://petition.parliament.uk/petitions/660922

Thanks. Good luck at court. 

LDast

Coupon-mad said:

Note for other regulars:

I am beginning to think we should stop telling people to ask the CNBC for a copy of the POC before N244s are filed, in cases like yours where the claim is still within the 4 months.  I think it will be better in future, not to get POC within the 4 month period and instead put in the N244 without seeing the POC and wait until the claim has expired.

Then ask the CNBC for a copy, after the 4 months has passed but before the hearing.  My reasoning is that it is better (going by the Barton v Wright Hassall case) not to gave the POC 'served' by email by the CNBC before the 4 months limitation expires.

Read the 'tests' (questions) arising from the Barton case quoted by @Zbubuman and I think the regulars will see where I am coming from.

Not that this new idea I am musing helps this OP but they will get their CCJ set aside anyway.

Out of interest, out of all the set asides we've seen that included the 4 months dead argument, have we actually see any of them dismissed on that point? I don't recollect seeing any.

Le_Kirk

4.      Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 1.2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £303

There is no paragraph 1.2

DubbleYewGee

LDast said:

Out of interest, out of all the set asides we've seen that included the 4 months dead argument, have we actually see any of them dismissed on that point? I don't recollect seeing any.

I think @amxv, and perhaps @Brokenchief (though they had to be more persuasive it seems) got theirs stuck out due to this.

Thanks all for highlighting the errors. The dangers of copy and paste! I've ran through and corrected them.