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

KeithP

It is probably not a good idea to share those addresses in paragraph 13 with the whole internet world.

1505grandad

CEL are BPA AoS members not IPC

Not_A_Hope

In para 8 you are asking the court to consider consolidating both claims. In your draft order you are only asking for the cost of one set aside application of £303. Might want to give them the option of reimbursing both set aside fees

Coupon-mad

"21/12/2023 (DATE OF CCJ ISSUE?)"

No.

It's the date the claim was filed (likely in Nov 2023).  If you don't know that date just remove the above words and don't give a date.

RedOrchid

1505grandad said:

CEL are BPA AoS members not IPC

I have tried finding a paragraph in BPA's code of practice is similar to the below so I can replace it but can't find it for the life of me...

 "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 24 months have passed since the PCN on 15/05/21, and the CCJ on 21/12/2023. " 

Aside from that, I have made amendments to paragraph 8 and replaced IPC with BPA where possible.

Coupon-mad

The BPA's paragraph is better. Look again. Twenty-something.

RedOrchid

I have found this::

21.8 If you have issued a parking charge notice to a driver in your car park but had no response, you may wish to take the next step to recover the charge.
21.9 Or, if you were unable to issue a parking charge notice while the driver was present, perhaps because you use ANPR or camera equipment to monitor the car park, you may want to issue a parking charge notice by post.
21.10 In either case, you will need to try to identify who was driving the vehicle and make contact with them. You do this by first seeking the keeper details from the DVLA. Having received the keeper details from the DVLA you will need to issue a ‘Notice to Keeper’. 

Apendix C:

“currentaddress forservice”means:
(a) in thecase of the keeper, an address which is either:
(i)an address at which documents relatingt o civil proceedings could properly be served on the person concerned under Civil Procedure Rules; or
(ii) the keeper’s registered address(if therei s one); or b) in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted; 

24.1c Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the contact details for the person you are writing to are correct. 

Coupon-mad

Just that last clause.

RedOrchid

Thanks CP. Have amended that paragraph. 

I have also just gone through lots of documents and letters that my partner had put away and I came across a letter from DCBL to my current (correct) address, a Notice of Debt Recovery stating that they tried writing to me at a different address but did not receive a response, therefore they used a tracking service to find my current address. My case is exact the same as @Zbubuman. 

I have adapted my WS to my case where needed and I think it's good to go, if anyone could spare 10 minutes to scan it, that'd be super .

RedOrchid

Civil Enforcement Limited

 

V

 

MY NAME

 

 

 

Case number 

 

K8GM07AJ

 

WITNESS STATEMENT 

 

I, NAME & ADRESS, 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 Judgments (CCJ) entered against me on 21/12/2023, in default due to a defective service of Claim. 

 

2. I was not aware of the claim made against me until I obtained a credit report from a different credit agency on the 10/06/2024. This is when I found out the Claimant had obtained two default CCJs against me. 

 

3. The Claimant served the claims to an old address which is a clear breach of both the CPRs and the BPA Code of Practice.  These facts and issues are explained further, below.

 

4. The Claimant had a duty to take reasonable steps to check for the correct address, in accordance with the BPA Code of Practice 21.10 and CPR 6.9, as more than 24 months have passed since the PCN on 15/05/21, and the CCJ on 21/12/2023. 

 

5. I have not received any claim form or detailed particulars of the claim 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 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).  Given that I am going further and declaring the unserved claims x 2 to be expired and thus, time barred and as such, I am disputing the jurisdiction of the court to dispense with service and allow the two claims to continue, this application also relies upon CPR 11 (but due to the lack of service, I cannot also acknowledge service, which that rule assumes a defendant can). In addition, I further rely upon CPR 16.4(1)(e) and 16PD3 and 16PD7, because I say that the expired POC fail to "state all facts necessary for the purpose of formulating a complete cause of action".  More detail follows below.

 

8. The Claimant 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 kindly ask for the two applications re setting aside the CCJs in claim number XXXXX and claim number XXXXX to be consolidated and heard together at one hearing, to save time and costs for the court and both parties.

 

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

 

THE CLAIMANT FAILED TO SERVE THE CLAIM 

 

10. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 21/12/2023. I am aware that the Claimant is Civil Enforcement Limited and that the assumed claim is in respect of an unpaid Parking Charge Notice. 

 

11. 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, 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, 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 23 - 30). 

 

12. The claim form was not served at my current address; thus I was not aware of the Default Judgment until I obtained a credit report on 10/06/2024. 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). 

 

13. The address on the claim is ADDRESS A. I moved from this address to three different addresses since the PCN was issues and I have lived at my newest address at ADDRESS B in September 2022. In support of this, I can provide documentation showing my updated address, including V5C, driving license, bank statements and a credit check report. (SEE EXHIBIT XX-01).

 

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 BRITISH PARKING ASSOCIATION CODE WAS NOT FOLLOWED 

 

15. British Parking Association (BPA) Code of Practice which requires a soft trace to be undertaken was not followed. The BPA Code of Practice 2024 - Version 9, February 2024, clause 24.1c states; 

16. “Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the contact details for the person you are writing to are correct.” 

 

DVLA ADDRESS DATA MAY NOT BE RELIABLE 

 

17. 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. 

 

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, 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'). 

 

20. 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 £303 from the claimant should this request be successful. 

 

21. There is a wealth of case law making 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)  

 

28. 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 

 

29. “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." 

 

 

 

Cause of Action estoppel

 

30. 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. 

 

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

 

XXXXX - PCN Issue Date 15/05/2021

 

XXXXX - PCN Issue Date 18/11/2020

 

32. 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.” 

 

33. 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''. 

 

34. 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.  

 

35.  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. 

 

36. 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.   

 

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.

 

37. 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.

 

38. Continuing an expired unserved 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). 

 

39. 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 has expired unserved.

 

40. 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 BPA code of practice and the CPRs about taking 'reasonable steps' (CPR 6.9) to check a Defendant's address. 

 

41. 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. 

 

42. 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). 

 

43. 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.

 

43. 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:

 

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

 

46. 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.

 

47. Addresses change frequently and the parking industry and DVLA know this; hence the British Parking Association'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.

49. It seems that DCBL paid lip service to this rule; they must have traced my current address in 2023 because out of the blue, I received a NOTICE OF DEBT RECOVERY.  Why then did Civil Enforcement Limited revert to the oldest address for the two claims?  A reasonable interpretation could be that they wanted to obtain default CCJs.