2x CCJ's - Civil Enforcement Limited - Private Parking Violation

RedOrchid

Thanks for the prompt response and guidance @Coupon-mad, my question is, what would be my defence for submitting the N244 form, StealthLady’s defence pack was very much based on the factual error of the claimant pursuing the wrong vehicle

Coupon-mad

The reasons for the N244 are to stay the writ and set aside the CCJ and strike out the claim; this is an application under CPR 13.3 because:

1. you were not served with the claim form. Simple but compelling.  You can't prove that, but will swear on oath if required. It was never received and had it been, you would have responded. After all, you have dealt with this company's unreasonable conduct twice before - seem to spend your life on it -  and know the risks of a CCJ and would categorically never have ignored a claim form, and you didn't.

2.  Cause of action estoppel arguments...

3.  Reasonable prospects of defence (whatever your defence case would have been).

RedOrchid

Thanks @Coupon-mad, just so I am completely clear about what I need to be doing. 

I will fill out an N244 form and draft a Witness Statment (where I will enter my defence similar to the witness statement I produced for the other 2 CCJs, which includes your points above).

I will also draft a Draft Order (to order to stay the writ and to have my costs reimbursed).

Is there anything else that I need to produce with the N244 bundle? 

Coupon-mad

Yes but the reason for the N244 is, in the first ('What Order?) box and also in the Draft Order:

Order to stay the writ and all enforcement, set aside the CCJ and strike out the claim; application pursuant to CPR 13.3 

Your WS should also cite VCS v Carr and the Denton principles re an applicant seeking relief from sanctions.

This is new stuff: see the thread by @icy_fox

RedOrchid

How's this for the first draft? I went through the two WS's I produced for the other 2 CCJs, but could not really find anything else to add to my defence of this third CCJ. 

Would "THE CLAIM HAS EXPIRED UNSERVED" be relevant? 

In Civil Enforcement Limited v Chan (Ref. E7GM9W44)?

WITNESS STATEMENT

I, [MY NAME] of [MY ADDRESS], being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of the application for an order that the judgment in this case (Claim No. [CLAIM-02-REF] Judgment dated 11/09/2024) be set aside.
2. I learnt of the existence of this claim on the 11/09/2024, after opening my post and finding the paperwork (Judgment Letter). This Claimant had already issued two near-duplicate claims for PCNs at this site (Issue Date: 21/12/2023) which are currently being litigated already. I believed this correspondence to be the N1SDT form which would’ve allowed me to produce my defence however, this never arrived. I am not someone who would ignore a court claim, as mentioned, I’ve already submitted a defence for two separate claims from the same claimant with near-duplicate particulars, I seem to spend my life dealing with this claimant. Upon receiving the Judgment letter, I went straight online to see how to respond to the latest letter from the CNBC without delay.
3. I will swear on oath to the above facts if required, therefore as a matter of fact and law, service was not effective.
4. I believe that I have a strong defence to the claim, and should it not be dismissed despite the wealth of case law below that supports the claim being dismissed at the set aside hearing, I should (at the very least) have the opportunity to defend it properly. My application relies upon the 'mandatory set aside' rule in CPR 13.2 (in the alternative, 13.3) in light of the above facts. This application also relies upon CPR 11 (but due to the lack of service, I was unable to acknowledge the service, which that rule assumes a defendant can).
5. I have set out the grounds for my application in the attached draft order.
   
   

DENTON TESTS

6. In instances of a default judgment being issued, a 3-stage Denton test was established in Denton v TH White Limited [2014]. which requires the court to:  

 

(i) identify and assess the seriousness and significance of the non-compliance 

 

(ii) consider why the breach occurred 

 

(iii) evaluate all circumstances of the case so the application is dealt with fairly

 

 

7. To confirm, no breach has occurred at all in this instance because the N1SDT form was not served. As such, the defendant did not have the opportunity to acknowledge and defend the claim prior to the County Court Judgement been issued.

 

8. If it is decided at this stage that the breach in question is neither serious nor significant then there is no need to consider the other 2 stages or to issue an application. In light of the above facts, there is no need to consider the final 2 stages of the Denton test.  

 

VCS VS CARR

 

9. I respectfully request that the judge reviews the largely similar case (VCS vs Carr - Reference: CA-2024-001179) to be heard at the Court of Appeal this year.

(i) The CoA's initial preliminary finding is that in cases where the D did not see the claim and has good prospects of successful defence, it is only right and in the interests of justice for the court to set aside a CCJ because the D has not had a chance to defend. 

 

10. Below I have highlighted key excerpts from the transcript of VCS vs Carr in which the Judge provides their reasons for granting a second appeal.  

11. The following excerpt highlights that "The purpose of CPR 13.3 is to avoid injustice". Furthermore the key difference between this example case and my own, is that I've had the opportunity to respond promptly having learned about this CCJ being issued:  

12. However, the purpose of the power under CPR 13.3 is to avoid injustice, and although a lack of “promptness” in applying to set aside is a mandatory consideration, the rule makes it clear that the overriding objective is paramount. It is far from clear that the Circuit Judge approached the matter from that perspective. I find it telling that there is no mention in her judgement of the overriding objective nor of what the justice of the case required.

 

13. The following excerpt highlights the importance in highlighting the Denton approach in the context of setting aside a judgment:  

14. Even in a case of relief from sanctions where the delay is lengthy and there is no excuse for it, the court is required to consider all the circumstances of the case, in order to deal justly with the matter: Denton v White. This court has confirmed that the approach in Denton applies in the context of setting aside a judgment in default: FXF v English Karate Federation [2023] EWCA Civ 891

 

15. In light of the above points, it is recognised "that there was a real prospect of successfully defending the claim", along with the relevance to "the third ‘stage of the Denton test", which itself states the need to "evaluate all circumstances of the case so the application is dealt with fairly":  

16. Given the Circuit Judge's finding (which the claimant realistically does not seek to challenge) that there was a real prospect of successfully defending the claim, in my judgment it is arguable with a real prospect of success that she did not properly carry out the holistic evaluation she should have done at the third ‘stage of the Denton test, despite expressly acknowledging that she had to take all the circumstances into consideration. As a result she placed too much weight on the delay after the defendant became aware of the default judgment, which she said she regarded as the most important factor.

 

17. Another similarity in this instance highlights that the defendant "has never had an opportunity to advance his valid defence", while further stating "he cannot be blamed for failure to respond to the claim form because he never received it":  

18. There also appears to have been no specific consideration at the third stage of the fact that in practical terms this defendant has never had an opportunity to advance his valid defence irrespective of whether service was property effected at his former address. That is related to but different from the point that he cannot be blamed for failure to respond to the claim form because he never received it.

 

19. The final excerpt I will highlight in this instance is that ultimately, the claimant has been "unjustly enriched" when "not entitled", specifically at the "expense" of the defendant who "had no opportunity to contest before it was entered":  

20. Standing back and looking at the bigger picture, if the defendant has a viable defence, then by reason of a judgment to which it was not entitled, and which he had no opportunity to contest before it was entered, the claimant will be unjustly enriched at his expense. Visiting those consequences upon him simply because of a 2-year delay in seeking to set the judgment aside during a period when he was undergoing a divorce and his parents became ill might be regarded as falling outside the generous ambit of decisions that were reasonably open to the court when that and all other relevant factors are weighed together.

 

ESTOPPEL

16. The claimant has inexplicably made this third claim despite the set of circumstances have striking similarities to their previous claim ([CLAIM-01-REF]), CLAIM-02-REF]),  including the same particulars, same car park, same vehicle and same reasons provided. The alleged PCN’s of this third claim ([CLAIM-03-REF]) are all dated before [CLAIM-01-REF] and [CLAIM-02-REF].  

 

 

17. 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.  

 

 

18. By filing three separate claims (for parking charges with exact same facts, issued within months of each other), the claimants have tripled the costs and court time wasted. This can also be considered as a tactic for triple intimidation against myself.  Having only recently learned of the third (near duplicate) POC, I have reproduced them below:  

[CLAIM-01-REF]

1. The Defendant (D) is indebted to the Claimant (C) for a Parking Charge(s) issued to vehicle [VEHICLE REG] at [CAR PARK ADDRESS].

2. The PCN was issued on 20/10/2020.

3. CLAIM FOR MONEY RELATING TO A PARKING CHARGE FOR BREACH OF CONTRACT TERMS/CONDITIONS(TCS) FOR PARKING IN PRIVATE CAR PARK (CP) MANAGED BY CLAIMANT

4. In the alternative the defendant is pursued as the keeper pursuant to POFA 2012, Schedule 4.

 

AND THE CLAIMANT CLAIMS

1. £335.08 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 £.04 until judgment or sooner payment.

3. Costs and court fees

[CLAIM-02-REF]

1. The Defendant (D) is indebted to the Claimant (C) for a Parking Charge(s) issued to vehicle [VEHICLE REG] at [CAR PARK ADDRESS].
2. The PCN was issued on 21/05/2021.
3. CLAIM FOR MONEY RELATING TO A PARKING CHARGE FOR BREACH OF CONTRACT TERMS/CONDITIONS(TCS) FOR PARKING IN PRIVATE CAR PARK (CP) MANAGED BY CLAIMANT
4. In the alternative the defendant is pursued as the keeper pursuant to POFA 2012, Schedule 4.

AND THE CLAIMANT CLAIMS

1. £326.82 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 4984 from the date hereof at a daily rate of £.04 until judgment or sooner payment.
3. Costs and court fees
   
   

[CLAIM-03-REF]

1.       The Defendant (D) is indebted to the Claimant (C) for a Parking Charge(s) issued to vehicle [VEHICLE REG] at [CAR PARK ADDRESS].

1. The PCN(s) were issued on 01/03/2020, 19/03/2020, 27/09/2020, 05/12/2020.
2. CLAIM FOR MONEY RELATING TO A PARKING CHARGE FOR
   BREACH OF CONTRACT TERMS/CONDITIONS(TCS) FOR PARKING IN PRIVATE CAR PARK (CP) MANAGED BY CLAIMANT
3. In the alternative the defendant is pursued as the keeper pursuant to POFA 2012, Schedule 4.

AND THE CLAIMANT CLAIMS

1. £1090.94 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 4984 from the date hereof at a daily rate of £.09 until judgment or sooner payment.
3. Costs and court fees

 

 

19. 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.”  

 

20. 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''.  

 

21. Three claims were raised on behalf of the claimant where one would have sufficed; which has tripled the waste to court time.   

 

22. 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.

 

23.  The Defendant invites the court to dismiss the second and third claim under the grounds of cause of action estoppel. In the alternative, the Court is respectfully invited to consolidate the claims to be determined together, and to apply appropriate sanctions against the Claimant.  

 

SET ASIDE APPLICATION WAS MADE PROMPTLY

24. I have responded to this matter as promptly as possible. I discovered a CCJ was lodged onto my credit file on the 11th November 2024. After immediately seeking guidance, today on `19th September 2024` I have submitted my case in order to set-aside this judgement and fairly present my case.  

 

28. 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 I therefore respectfully request that the Court sets aside the judgment in this claim and allows the defences that I have filed and served for the duplicate claims to stand as my defence for this claim (with the later claims of the three either being dismissed due to cause of action estoppel, or consolidated with this one if the court sees fit to allow all three claims to continue).  

Statement of Truth

29. I believe the facts stated within this Witness Statement to be 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: ________________________________

Dated: 19/11/2024

Coupon-mad

I never understand why, when we tell posters about cause of action estoppel they then don't use that phrase and just put 'estoppel' which covers so many possible alternative meanings that your Judge might have no idea what you mean by the word.

Would "THE CLAIM HAS EXPIRED UNSERVED" be relevant? 
In Civil Enforcement Limited v Chan (Ref. E7GM9W44)?

Chan and Akande. Both. See other threads.

No idea about whether the claim was filed over 4 months ago. Only you know that, I think.

RedOrchid

@Coupon-mad
 
Have amended to say "CAUSE OF ACTION ESTOPPEL"



Chan & Akande added below CAUSE OF ACTION ESTOPPEL (Can I send the Judgments as an Exhibit? Every thread I found on Akande only shows "INSERT EXHERT HERE).

------

29. Bulk litigators (legal firms like the notorious Civil Enforcement Limited with their well-documented connections to the BPA 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:

 

30. Two recent persuasive appeal judgments in Civil Enforcement Limited v Chan (Ref. E7GM9W44) and CPMS v Akande would indicate the POC fails to comply with with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. 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 (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

31. The second recent persuasive appeal judgment Car Park Management Service Ltd v Akande (Ref. K0DP5J30) would also indicate the POC fails to comply with Part 16. On the 10 May 2024, in the cited case, HHJ Evans held that 'Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim' (transcript below). 

Coupon-mad

Yes give them both an Exhibit number.

I guess that the claim wasn't expired (not more than 4 months old yet?).

Para 1 in your WS must match what you've put in the N244 and in thd Draft Order; it's not just an application to 'set aside the CCJ'.  It is also to stay the writ and strike out the claim.  Say that consistently.

Urgent!

Ring or go to your local county/family court in the morning with a full printed version (or say you wish to email it asap to get it in) and tell them this is an urgent application to stay a Writ that you think has been applied for by now, by DCB Ltd.

Don't use the phrase "an application to set aside a CCJ" to the local court unless you have to (such as if the staff check the case and see no Writ yet).  Hopefully they'll accept it and charge you only the £15 fee to stay a Writ (so much better and it gets your application in the door).

If you can't do that and/or they refuse and tell you to apply via the CNBC, you'll gave to do that urgently instead, like @StealthLady

TIME IS OF THE ESSENCE. HCEO RISK!

RedOrchid

It's been a super busy day and so will be tomorrow, so I've gotten my things and my car and packed up for the week somewhere far from my home until this is dealt with, HCEO's will turn up to an empty building should they come...

Answering your question, the new claim was lodged on my credit file on the 11/11/2024 so no, I can't use the argument that the claim expired. 

I have filled the N244 and ordered that the writ is stayed, the judgement struck out and the CCJ to be set aside which is replicated in my Draft Order below, please let me know if there are any feedback on this? Looking to file tomorrow morning first thing with my local court, failing that, the CNBC.

IN THE CIVIL NATIONAL BUSINESS CENTRE

Claim No. L...

BETWEEN:

Civil Enforcement Limited

(Claimant)

- and -

NAME

(Defendant)

 

_________________________________________________________________________________

DRAFT ORDER

_________________________________________________________________________________

 

UPON reading the Defendants application to set aside the Judgment by Default entered on 20/11/2024

AND UPON reading the evidence in support of the application;

AND UPON the Court taking notice that the Claimant has issued an unjust, unenforceable and Illegal original Claim against the Defendant

AND UPON the Court taking note that the only way to allow the Defendant to challenge the legal legitimacy of the original claim is to set aside the Judgment entered by Default:

 

IT IS ORDERED THAT:

1.      The Judgment entered against the Claimant on 11/11/2024 is hereby set aside under CPR 13.2 and in the alternative, CPR 13.3.

2.      Any High Court Writ obtained and enforcement to be stayed, pending the outcome of the application.

3.      Costs borne by the Defendant in the amount of £14.00 to be paid by the Claimant to the Defendant in light of:

a.      The unreasonable and unlawful conduct of the Claimant in the issuing of 3 different judgements for PCNs with near identical particulars.

4.      Any application by the Claimant to withdraw the original claim is DENIED so that the Defendant can have the original case re-set in a bid to offer their defence and subsequent counterclaim to the original claim that should never have been brought to the Courts and has wasted valuable Court time.

Coupon-mad

No ... IMHO that Draft Order has no proper reasoning nor legal cause to set aside the CCJ in a case where the claim went to the right address (but just wasn't received IIRC).

That could well be refused.

Can't promise success because it will be down to the Judge's discretion, but I think the Draft Order should be more like this:

_________________________________________________________________________________

DRAFT ORDER

_________________________________________________________________________________

UPON reading the Defendant's application dated 20/11/2024 and hearing from the Defendant in person;

AND UPON it being accepted that, despite the Claim being addressed to the Defendant's last known address, it was not received by the Defendant, who was unaware of this claim;

AND UPON the Court applying the Overriding Objective and the 3 stage sanctions test in Denton v TH White Limited [2014] and taking notice of the Court of Appeal summary which has allowed the case of Vehicle Control Services Ltd v Carr to be appealed to that Court (in a case where the Defendant did not receive the Claim Form) despite the fact that that Defendant did not act promptly;

AND UPON the Court taking note that this Defendant has acted promptly and on the balance of probabilities would have responded to this, a third near-duplicate claim had they received it, having raised the matter of cause of action estoppel to be determined by the court and the Defendant having reasonable prospects of successfully defending this claim

IT IS ORDERED THAT:

1.      The Judgment entered against the Claimant on 11/11/2024 is hereby set aside under CPR 13.2 and in the alternative, CPR 13.3.

2.      Any High Court Writ obtained and enforcement to be stayed, pending the outcome of the application.

3.      This claim, being the third from this Claimant with near-identical particulars (with all parking charges having been known to the Claimant at the time of the first claim, all of which should have been pleaded as part of the first claim), is hereby struck out, per the doctrine of cause of action estoppel

OR

3.       UNLESS within 14 days of this Order, the Claimant files and serves a detailed response to the Defendant's assertion that the claim should be struck out (being the third claim relying upon near identical particulars) the claim shall be struck out.

4.       Costs in the amount of £xxx to be paid by the Claimant to the Defendant within 14 days of this Order.