Another surprise CCJ, served at old address

Coupon-mad

I think only a couple did, but the case law now being used in Zbubuman's thread is even better and calling the claim 'expired' is better than dead IMHO.  I think Judges will get this better.

DubbleYewGee

The case has been assigned to my local court and scheduled for 23rd Sept via video call.
ELMS sent me a consent order to set aside, allocate to small claims and no order as to costs. I declined citing costs as the issue.

I am about to send the below skeleton argument put together using the hard work of other posters. My understanding for formatting is no statement of truth and just sign and date at the end. It should be sent to the court and CC to ELMS/VCS?

I haven't included the Barton tests as unfortunately I did get the particulars from the CNBC back in May.

I also need to come up with something for when the Judge asks if I can defend against the original claim!

Skelton argument

1. THE CLAIM HAS EXPIRED UNSERVED.

2. 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 CLAIM.

3. 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.

4. Continuing with an expired and unserved claim more than 4 months after it was filed is impossible under any rule of law or practice (CPR 7.5).

5. The responsibility for failing to serve the claim correctly within the 4 month period required by CPR 7.5 rests entirely with the Claimant and as a result the claim has expired unserved.

6. The Claimant should be given no further opportunities to waste court time after failing to follow the pre action protocol for debt claims and take the ‘reasonable steps’ to check a defendant’s correct address required by them by CPR 6.9.

7. If the Claimant believes they still have a claim then they should be required to file anew following the required rules. A ‘Letter before claim’ should then be sent to the correct address following the pre action protocol for debt claims. The Court is reminded that the Defendant has received no information to allow them to build any defence. No claim form and no detailed particulars of the claim have ever been sent to the Defendant’s current address.

8. A Court’s discretionary power to validate a defectively served claim is very limited and only applies when there is ‘good reason’ for the Court to exercise this power. There is no ‘good reason’ for the Court to retrospectively validate the Claimant’s service under CPR 6.15. Whilst CPR 6.16 does give the Court the power to dispense with service of the claim form, this only applies in ‘exceptional circumstances’ and does not apply in my case.

Relevant caselaw on expired unserved claims

9. 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.

10. 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 required by CPR 7.5. This was the case even though the strike out application had not been made correctly.

11. 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 claimant by granting a retrospective order validating the attempted service.

12. 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 should not be used to get around service requirements and remedy the claimant’s error. The claimants also did not satisfy the requirements under CPR 6.15 or 6.16.

13. There are several authorities, including the judgment in Boxwood v Gleeson [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.”  

14. 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."  

15. 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.  

16. “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 [...]   

17. 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. [...]  

18. 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]. [...]  

19. 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.”  

20. 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.  

Signed:

Date:

 

Coupon-mad

I recommend you cite the initial CoA findings in the similar VCS case that has gone (has the green light) to be heard at the Court of Appeal this year:

https://forums.moneysavingexpert.com/discussion/6544855/court-of-appeal-case-vcs-permission-to-appeal

Silver bullet transcript!  This is BIG.

The CoA has accepted the case to be listed for a full hearing and the allocating Judge is damning of VCS in that preliminary finding.

It's VCS v Carr

Looking to overturn an error by HHJ Evans at Manchester who blamed the D for delay in applying to set aside a £10k CCJ.  This despite the fact that the claim form was not properly served (VCS had knowledge of where the D lived yet sent the £10k claim to his old address).  CPR 13.2 is a mandatory set aside so the first Judge was not wrong and HHJ Evans fell into error. Now dragged to the second highest court in the land.  SRS must be twitching.

DubbleYewGee

Coupon-mad said:

I recommend you cite the initial CoA findings in the similar VCS case that has gone (has the green light) to be heard at the Court of Appeal this year:

https://forums.moneysavingexpert.com/discussion/6544855/court-of-appeal-case-vcs-permission-to-appeal

Thanks Coupon, I hope I'm referencing the correct part!

I can't find anything online bar the thread that you linked, and the court tracker entry. Is there some other way to get more information on this case? My understanding is that if I talk about it I need to atleast send a link to the case itself.

7. My circumstances are far from unique. The Claimants failure to carry out the simple and reasonable enquiries to ascertain an individual’s current address when no response is received from correspondence to a former address are highlighted in the initial Court of Appeal findings by LJ Andrews in Vehicle Control Services Limited V Carr [2024] EWCA Civ 1179. 

8. In this case, “the Claimant then obtained a default judgment for a sum in excess of £10,000 … after they had sent all relevant correspondence to and served the proceedings at an address where the defendant no longer lived. The Circuit Judge rightly found that he could not be criticised for failing to respond to a claim form which he never in fact received.”

Coupon-mad

But that is the case itself.

DubbleYewGee

Success! CCJ set aside and claim struck out for want of service within the required 4 months.
The Judge sadly did not even broach the subject of costs before bidding us all a good morning and leaving the call.

The Judge stated that they could begin the claim again, do they usually do so? 
I assume I shall recieve some sort of confirmation of the decision and then CCJ removed next month? Happy days!

Coupon-mad

Congrats!

That's a complete win!

If they tried suing again you'd have grounds to counterclaim for the costs they caused you with the improperly served claim.  They won't try again, though.

You could try sending an email today to the local court, asking for your costs to be included in the final order and attach proof of paying the £275 fee.