Court of Appeal Case VCS (Permission to appeal)

Grizebeck

Permission granted in the court appeal 
Interesting notes about the behaviour of VCS

Grizebeck

also on court tracker 
https://casetracker.justice.gov.uk/getDetail.do?case_id=CA-2024-001179

Coupon-mad

Teeheeheeheeeheeeeee!

Love this so far. Popcorn out.

Well done Jackson Yamba if he was instrumental in getting it this far.

h2g2

I wonder how this would play out if bailiffs showed up to enforce the payment successfully, and then the defendant sued the landlord for breach of contract.

Ending up on the hook like that would make landlords far more careful about engaging in/allowing this sort of behaviour. At the moment they no incentive to take any care whatsoever because they don't end up losing out if the parking company turns out to be scum.

Coupon-mad

Luckily in this case, VCS thought they had a £10k CCJ but now it is stayed pending this landmark case.*  They can't enforce anything and are in imminent danger of getting a right royal rollicking at the Court of Appeal.

*This one will be binding case law.

Certainly a landmark case about parking CCJs caused by negligent use of old addresses. Hopefully we may even get some choice obiter remarks about the MO used by VCS and their ilk: apparently delaying issuing permits to new residents and cashing in on PCNs instead, by intimidation and abusing the small claims track.

icy_fox

Having been pointed in the direction of this case while responding to a CCJ of my own, I used some key excerpts from this transcript.

This involved extracting the text from these images via OCR (Optical Character Recognition), so I'm sharing the below in case it helps anyone in future. 

One thing I would say is there were a few mistakes & errors when I'd first extracted this text. I've been through and corrected everything as best as I could, but if anyone uses the below then just triple check everything you copy vs the corresponding text within the images to ensure it's accurate.

---

1. Ground 1 is arguable with a real prospect of success. The validity of service is a mixed question of fact and law. The question whether the claimant had reason to believe that the address of the defendant is an address he no longer resides at is a question of fact. So too is the question whether the claimant took reasonable steps to effect service at the right address. The DJ found as a fact that the defendant contacted the claimant twice by phone and informed them that he was a tenant living at the property served by the car park to which the parking tickets related. That, plus the fact that they were getting no response from the defendant to correspondence sent to his former address put them on notice and they did not carry out the simple and reasonable enquiries that would have ascertained his current address.

2. Despite acknowledging that there is a high bar for an appellant who wishes to persuade an appellate court to interfere with a lower court's fact findings the Circuit Judge found it was surmounted. It is arguable with a strong prospect of success that she was not justified in doing so, let alone in substituting the findings that she did. Her reasoning at paragraph 12 is questionable. It makes little sense to me to find that by ringing up the claimant and saying he was a tenant at the property where the car was parked and that his tenancy agreement gave him the right to park there, the defendant was not telling the claimant he was living there (and by necessary implication that he did not live elsewhere) whether he said so in one call or two. Her suggestion that it “could have made a difference” if the DJ had found that only one call made reference to the defendant being a tenant of the flat is therefore baffling. His reasoning does not depend on how many calls there were.

3. In any event the Circuit Judge's analysis of the evidence about the telephone calls fails to take proper account of the context; she appears to have assumed that the absence of express reference to a tenancy in the claimant's note of the second conversation is conclusive. But the “client” referred to in that note could only be the company from which the claimant was taking its instructions to levy the parking charges -i.e. the landlord or managing agents of the block of flats. The second conversation only makes sense in the context that the motorist was claiming the landlord had confirmed he had the right to use the car park without being served with a parking penalty notice — necessarily implying that he was a tenant.

4. Moreover the DJ did not simply rely on the two telephone calls; he also took into account the absence of any response from the defendant to any of the voluminous correspondence sent by the claimant to his former address. Whether or not that was enough in itself to put them on notice, the Circuit Judge does not explain how the “error” she identified would invalidate that assessment of the evidence taken in the round.

5. On the face of it there was a sufficient evidential basis for the DJ's findings and no mistake was made of the kind that would justify setting them aside.

6. There is a compelling reason to grant permission for a second appeal on this ground because if the DJ was entitled to make the findings that he did, and there was no justification for interfering with his decision to set aside the default judgment, it would be unfair to the defendant to allow that decision to stand.

7. Ground 2 is more problematic because of the exercise of judicial discretion, particularly in the light of the long delay. This court cannot interfere with a rational decision which applied the correct legal test and properly addressed all relevant factors and weighed them in the balance, however much it might disagree

8. 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.

9. 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

10. The starting point of the analysis must be that the defendant, who at all material times lived at the property where his car was parked, was being served with parking enforcement notices by the claimant because through no fault of his own and despite making every effort to get one, he could not display a parking permit to prove to them that he had the right to park his car in that space. He had tried without success to ‘explain this to the claimant, who in substance said it was not their problem and he should take it up with the letting agent/landlord. The claimant then obtained a default judgment for a sum in excess of £10,000 in respect of the accumulated parking charges 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.

11. 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.

12. I may be wrong, but overall the judgement creates an impression that the Circuit Judge's marked disapproval of the defendant's failure to inform the DVLA of his change of address coloured her whole approach, She never expressly addressed the question “what does the justice of the case require?”. She did take into account his explanation for the delay, which she found unsatisfactory (as she was entitled to): but there is no indication that the delay was weighed against anything other than the alleged breach by the claimant of the rules requiring a certificate of service of the particulars of claim to be filed.

13. If the Circuit Judge approached the matter on the basis that without a satisfactory explanation for the delay the default judgment must stand, as she arguably did, she would have been misapplying Denton. Stage 3 of the Denton test only arises # there is inordinate and inexcusable delay. The reasons for the delay are ‘still relevant at the third stage but at that stage they do not (indeed will not) excuse it.

14. The Circuit Judge did not refer to the chronology set out under para 23 of the defendant's witness ‘statement nor to the evidence of what happened during the period of delay, which shows that he did not ‘simply sit on his hands and wait for execution of the judgment, as her judgment implies that he did. There is no mention of his attempts to settle the matter without resort to further litigation, which is potentially important: the correspondence exhibited to his witness statement demonstrates that he was not ignoring the judgment but trying to resolve the wider underlying dispute.

15. 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.

16. 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.

17. This was not a case of a conscious decision being made to disregard the judgment until steps were taken to enforce it. If the Circuit Judge thought it was, she overlooked material evidence pointing the other way. There was no question of the delay here making it harder for the claimant to prove their case at trial, or causing any other form of disruption to this or any other litigation. It does not appear that the Circuit Judge even considered the possibility of a lesser sanction such as an adverse costs order.

18. Although the defendant is not immune from criticism, and Ground 2 is not without its difficulties, for the reasons I have explained it surmounts the merits threshold. That being so, there is a compelling reason to give permission on both grounds, so that the Full Court can consider the case as a whole. Overall I am concerned that this may be a case where an injustice has been caused through an inability by the Circuit Judge to see past the delay and consider what the overriding objective required in all the circumstances.

Coupon-mad

That's a useful excerpts summary @icy_fox

It's worth a re-read and is a judgment that everyone with a parking CCJ should be using.

The prospects of defendant's success and his efforts to resolve the issues before and after litigation (i.e the permit issues before, then the shock of an unexpected CCJ after) outweigh the DVLA address & N244 delays, due to the Overriding Objective ( = justice).

This is the bit I like best:

"16. 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."

That is what it should be about. Justice.

Not a steamroller bulk litigation approach then blame the Defendant for not updating the DVLA, which is completely irrelevant months or years later at LBC stage when 'correct address' check/burden lies only with the Claimant.

@Whatever2023 I'd be interested to know what you think about this one?

What do you think of a PPC who routinely blames Defendants for DVLA address delay and can't be bothered to either do a 29 pence soft trace or make proper note of the fact that the Defendant told them on the phone where he lived?

Time for the worst PPCs to pull their socks up and stop being unreasonably aggressive anti-consumer litigators.  The Government will be able to do more to rein in unreasonable behaviours once the statutory regime begins.

Castle

Something to "throw into the mix" as the wording of paragraph 2(1) of Schedule 4 of POFA would suggests that the two addresses are mutually exclusive:-

“current address for service” means—
(a) in the case of the keeper, an address which is either—

(i) an address at which documents relating to civil proceedings could properly be served on the person concerned under Civil Procedure Rules; or

(ii) the keeper's registered address (if there is one); 

ParkingMad

Recording of the hearing here:

https://www.youtube.com/watch?v=FvK6XwAGHcs

as posted by @kryten3000 on this continuation thread-

https://forums.moneysavingexpert.com/discussion/6590792/court-of-appeal-appeal-allowed-vs-vcs-well-done-jackson-yamba/p1

Le_Kirk

Ye Gods, that was excruciating to listen to!

Umkomaas

Le_Kirk said:

Ye Gods, that was excruciating to listen to!

If you've never heard one before, the sound of a drowning man!