Default CCJ having moved address

Truss_me

Quite surprisingly CEL have promptly replied with what I assume is a standard response. 

What I find odd is that they admit the check was performed 07/06/2022 and the claim was issued 13/5/2024. 

Is it OK to use nearly 2 year old data to issue the claim?  Since I moved in July '23 and updated details by August '23, it would seem they are at fault here?  

So, next steps to draft the N244? Should I reply with anything to CEL?

Following the violation, on xxxx, the DVLA provided us with your name and address as the registered keeper of the vehicle. The address provided by the DVLA was that of xxxx. As you are no doubt aware, pursuant to s18 of the Road Vehicles (Registration and Licensing) Regulations 2002, it is the motorist’s duty to ensure that the DVLA is immediately informed of any change of address.

As no response was received to any of our correspondence and in line with section 24.1 of the BPA Code of Practice (this states that we should take 'reasonable endeavours to ensure that the contact details for the person you are writing to are correct'), our debt resolution partner (DCBL) carried out an address check on 07/06/2022, however, they were unable to locate a new address.

Following this check, a claim was therefore issued to your last known address in accordance with Rule 6 of the Civil Procedure Rules on 13/5/2024.

Given the circumstances, we are prepared to accept a significantly reduced sum of £95 to settle this PCN. However, this will not remove your Judgment, but rather mark it as satisfied and remain on your record for 6 years.
                                              

Should you wish for a chance at having your Judgment removed, you will need to make an application with the Civil National Business Centre.

The Civil Procedure Rules permit the Court to set aside a CCJ in certain circumstances, such as where there is a good reason that the Judgment should be set aside – for example, this could be where the claim was issued at your previous address which was registered with the DVLA at the time of the parking violation.
 

The Court fee for a formal application to set aside Judgment is £303.00. However, to assist you in reducing costs, if £95 is made for the PCN, we would be willing to agree to set aside the Judgment and provide you with a Draft Consent Order, which will only cost £119.00 to file at Court. This process usually means that the Judgment is set aside quickly (within 2-4 weeks of filing the application) and without the need to attend a hearing before a Judge. The draft Consent Order will contain three simple terms:

 The Judgment against you is set aside immediately (and therefore removed from your Court/Credit record) 

• The claim against you is discontinued; and 
• There is no Order for costs

As stated above, the Court will usually only set aside Judgment (even by consent) if there are reasonable grounds for doing so. We therefore cannot guarantee our Draft Consent Order will assist you in setting aside the CCJ, but it does offer the quickest and most costs effective way of applying to have the Judgment set aside.

LDast

Ask them for evidence of this:

As no response was received to any of our correspondence and in line with section 24.1 of the BPA Code of Practice (this states that we should take 'reasonable endeavours to ensure that the contact details for the person you are writing to are correct'), our debt resolution partner (DCBL) carried out an address check on 07/06/2022, however, they were unable to locate a new address.

As already advised, do not accept their kind [sic] offer for you to only pay £119 and absorb that cost because of their mendacious failure to do the requisite due diligence.  You can respond and give them one last chance for them to pay the £119 and cancel the PCN otherwise you will see them at the hearing and you will request for you costs to be paid by them, irrespective of whether the claim is struck out there and then or you are allowed to defend the claim and they then discontinue before any subsequent hearing.

Coupon-mad

Is it OK to use nearly 2 year old data to issue the claim? 

No it isn't OK.  That breaches the CPRs.



Since I moved in July '23 and updated details by August '23, it would seem they are at fault here

Yes they are at fault and in breach of the CPRs and BPA CoP; that's one of several points made in CCJ set aside witness statements.  Read any recent ones but be careful to remove quotes from the IPC CoP and replace them with the BPA CoP.

And your application must ask for CEL's claim to be struck out as well, using CEL v Chan and CPMS v Akande.

And use excerpts from VCS v Carr, now at the Court of Appeal. I think those excerpts are in the thread by @icy_fox

Truss_me

Having emailed CEL as per LDast's suggestion, CEL responded to say they do not agree to pay for the draft consent order and will respond to any application from the court. 

As such I've drafted my N244, witness statement and draft order with a huge amount of help from a solicitor friend.

As I haven't seen the Judgment, I'm just not sure, is the court I should be addressing the CNBC or my local court?  

Thanks in advance. 

LDast

Please show us the WS and DO before you submit. There is more legal knowledge about this specialist area than any solicitor who isn't a specialist and it would be worth your while to have it reviewed here first.

Coupon-mad

Truss_me said:

Having emailed CEL as per LDast's suggestion, CEL responded to say they do not agree to pay for the draft consent order and will respond to any application from the court. 

As such I've drafted my N244, witness statement and draft order with a huge amount of help from a solicitor friend.

Oh dear.

You only had to copy from recent CCJ set aside threads and I already gave you a username link for the added VCS v Carr excerpts.  You had all you needed.

I hope this solicitor friend read some threads here and included:

Chan
Akande
Carr
The Denton principles
The BPA Code of Practice
All the case law about un-served claims that we use every time?

Does the solicitor have decent experience of private parking cases and in your application bundle has covered the fact that the Claim should be struck out and all your costs paid by the C?

Truss_me

I know, I tried and passed on the links. I had to ask as i'm struggling with all the different threads and information to digest, it's certainly not my forte and I just wasn't getting anywhere. She isn't an expert in this area, but a lot more clued up than I. It feels like a good start, but not sure if 5 - 8 is of any use? Or should it be removed in favour of concentrating on defective service? - Is this also where I should be quoting the relevant case law?  If you wouldn't mind, I would really appreciate some guidance from you.

I, XXXX of XXXX STATE AS FOLLOWS:

1                 I am the Defendant in these proceedings.

2                 I make this witness statement in support of my application (the "Application") to set aside the default judgment dated 12 July 2024 (the "Default Judgment") pursuant to CPR r.13.2 and/or r.13.3.  

3                 The facts and matters set out in this statement are within my own knowledge unless otherwise stated, and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

4                 I refer to a paginated bundle of true copy documents marked " Exhibit XXXX". All references to documents in this statement are to Exhibit XXXX unless otherwise stated.

Background

Factual background

5                 I am an XXXX employed by XXXX. From time to time in my role I am required to attend sites to carry out emergency works on XXXX and in doing so I play a role in safeguarding the public and helping to prevent or minimise damage to other public or private property. For these purposes I am considered a category 2 emergency worker.

6                 On XXXX, I was called out to carry out emergency isolation and safeguarding work due to storm Eunice.  I entered a car park at XXXX which I now understand is controlled by Civil Enforcement Limited ("CEL"). I entered the car park in my vehicle with registration XXXX ("Work Vehicle"). I am the registered keeper of my Work Vehicle. I use my Work Vehicle for my employment and it is subject to an employee car scheme with XXXX.

7                 I pulled my vehicle up to a colleagues vehicle in the car park and we proceeded to have a discussion about the emergency works that were required and to update job notes. Although I do not remember precisely how long I was in the car park, I have seen from the Parking Charge Notice ("PCN") that CEL alleges that my vehicle was in the car park for 21 minutes and I agree that I was in the car park for only a short time. During the visit I did not exit my vehicle or park in a parking space.

8                 Due to the weather and ongoing situation with fallen trees and conductors I was not aware we had stopped in a car park which required payment. As far as I recall there were no barriers or sign upon entry.

9                 I subsequently received a PCN to my former residential address at XXXX. The PCN is referred to in the summary of the Claimant's Particulars of Claim (PCN ref XXXX) which I have received from the Civil National Business Centre by email following my request to them for details of the claim (which I refer to further below).

10              I do not consider that I am liable to pay any penalty for entering into the car park as signage was inadequate and I did not park and leave my vehicle, but merely had a brief meeting relating to emergency works in the area with a colleague. 

11              I appealed the issue of the PCN on the CEL website after I received it. My appeal was submitted via a webform on CEL’s website and I was not provided with a copy of the appeal I wrote on their website after I submitted it. As such I do not have a copy of that appeal. As far as I recall, the response at the time was that CEL did not have my Work Vehicle recorded as an emergency vehicle and as such my appeal was unsuccessful.  I do not remember any further correspondence with CEL following this decision.

12              On XXXX I moved residence. A copy of my mortgage agreement is included at Exhibit XXXX. I had a postal redirection service in place with Royal Mail for a period of 3 months, until [date] October 2023. A copy of an email from Royal Mail confirming my postal redirection is at Exhibit XXXX. [On date / During the 3 month period of my postal redirection / shortly after moving on XXXX], I updated my home address with the DVLA, including by updating the address on the "V5C" for my Work Vehicle. The new V5C for my vehicle is dated XXXX. Exhibit XXXX.

13              My residential address from 5 July 2023 has been XXXX ("Home Address") and the V5C for the vehicle in question was issued on 30.08.2023.

14              On 1st October 2024 I received a letter at my Home Address dated 25 September 2024 from Direct Collection Bailiffs Ltd ("DCBL") stating that pursuant to a CCJ entered against me I owed £309 to CEL. This was the first time that I learned that a claim had been made brought against me by CEL and that a default judgment had been entered against me in respect of that claim. The same day I received the letter I began looking into the claim by looking up details on the Trust Online service.

15              I have never received or been served with a copy of the Claim Form and/or Particulars of Claim or a copy of the default judgment. On 07.10.2024 to try to ascertain the details of the judgment referred to in the letter from DCBL. I was informed that CEL had been awarded a default judgement and the POC would be forwarded to me. I then received an email setting out summary information relating to the Particulars of Claim, a copy of that email dated 7 October 2024 is included at Exhibit XXXX.

16              Subsequently I received a further letter from DCBL dated 16 October 2024, a copy of which is included at Exhibit XXXX.

17              On XXXX I approached CEL via email inviting them to make a joint application to set aside the judgment with CEL picking up the costs. Exhibit XXXX. CEL then responded with a settlement offer in respect of the default judgment on 9 October 2024 by email. In summary CEL offered a draft consent order to set aside the judgment provided that I pay £95 towards the PCN and £119 for the Court filing fee for the consent order. Relevantly, the email from CEL states that:

17.1         CEL's debt resolution partner, DCBL, carried out an address check on 7 June 2022 and were "unable to locate a new address";

17.2         "Following this check, a claim was therefore issued to your last known address in accordance with rule 6 of the Civil Procedure Rules on 13/5/2024".

18              By their own admission, CEL stated in their email of 9 October 2024 to me that they had failed to check my address before attempting service on around 13 May 2024, and instead relied on an address they had checked over 23 months earlier. The date of the alleged service of the claim on 13 May 2024 was approximately 10 months after I moved home and over 6 months after updating my Home Address on my V5C.

19              For the reasons set out above, this claim should be struck out. I became aware of the Particulars of Claim and default judgment only upon receiving the letter from DCBL dated 25th September.  If I had been given an opportunity to defend the claim I would have done so within the time limits required by the Civil Procedure Rules. I also consider that I have a real prospect of successfully defending the claim, as set out below. As such I rejected the settlement offer and made a counter-offer by email dated 14 October 2024. CEL rejected this counter-offer by email dated 14 October 2024. Copies of this correspondence is included at Exhibit XXXX.   

20              I consider that CEL's settlement offer of 9 October 2024 acknowledges that service was defective in that CEL agreed to consent to an order to set aside the Default Judgment provided I pay a contribution towards the PCN and the Court filing fee as set out above at paragraph X.

Defective Service

21              For the reasons set out above at paragraphs 12 to 20 , it is my understanding that service of the Claim Form was defective and in contravention of CPR 7.5.

22              Additionally, CEL failed to serve the claim at my usual or last known address, in breach of CPR 6.9. My current address was easily ascertainable from multiple publicly available sources such as the DVLA, the HMRC and/or the electoral register. 

23              I understand that CEL is a member of the British Parking Association (the ‘BPA’) and is bound by the BPA’s Code of Practice which states at paragraph 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."

24              I was not provided with any Pre-Action Protocol ("PAP") Letter of Claim by CEL or any party on their behalf. I understand that the CEL has breached the BPA Code of Practice and the Civil Procedure Rules both in terms of its failures to carry out adequate checks prior to service and its failure to send a PAP Letter of Claim.

25              As above, I have not seen or received a copy of the default judgment. However, I have confirmed with the Civil National Business Centre and on the Registry Trust website that the default judgment has been entered against me.

My Application

26              I apply on two bases: CPR 13.2 and CPR 13.3.

27              As to the Defendant’s application under CPR 13.2, the relevant rule is as follows:

The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied…

28              The relevant condition is at rule 12.3(1). This sets out that a claimant may obtain judgment in default of an acknowledgement of service only if at the date on which judgment is entered (a) the defendant has not filed and an acknowledgement of service…and (b) the relevant time for doing so has expired.

29              The relevant time for filing an acknowledgment of service had not expired because the Defendant had never been properly served for the reasons explained above.

30              As such, the Defendant was not obliged to acknowledge service within a specified time or at all or file a defence. 

31              In those circumstances, the Court must set aside the judgment entered under Part 12.

32              Further or alternatively, the Defendant applies under CPR 13.3.

33              CPR 13.3 provides as follows:

…The Court may set aside or vary a judgment entered under CPR Part 12 if:

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

34              I address each of these matters in turn.

Real prospect of defending the claim (CPR 13.3(1)(a))

35              I believe that the Defendant has a real prospect of successfully defending the claim on this ground as set out above at paragraphs x to y. The Default Judgment should therefore be set aside for this reason.

 Other good reasons (CPR 13.3(1)(b))

36              In the alternative, I request that the Default Judgment is set aside on the basis that it was entered before the claim was brought to the Defendant's attention and/or served on it.

Requirement to act promptly (CPR 13.3(2))

37              As set out above, the Default Judgment was only brought to my attention on 1 October 2024, which I received the first letter from DCBL dated 25 September 2024. I believe that I have acted promptly thereafter, including by making enquiries from 1 October 2024 onwards as to the claim. I made a reasonable counter-offer as explained above in 16 above (exhibit XXXX on 9th October and since that time I have prepared this application.

Relief against sanctions

38              I understand that in considering an application under CPR 13.3, the Court will consider the application as being subject to the principles applicable to applications for relief against sanctions under CPR 3.9. I understand those principles to be that when deciding whether to grant a party relief from sanctions, the court will:

38.1         Identify and assess the seriousness and significance of the breach of the relevant rule, practice direction or court order;

38.2         Consider the reasons why the default occurred; and

38.3         Evaluate “all the circumstances of the case”.

39              In relation to each of those matters:

39.1         I accept that if the Claimant had properly served the Claim Form then the failure to acknowledge service was a serious and significant breach.

39.2         As explained above, the reason for the breach was that I was not served with the Claim Form – rather the Claim Form was sent to my previous address some 6 months after I had updated my address on the V5 with the   DVLA. The Claimant made no proper attempt to identify my current Home Address before attempting service at my previous residential address or to otherwise pass on the relevant documents to me or bring them to my attention.

39.3         As to all the circumstances, the Defendant will rely on the matters set out in this witness statement, but in short: I believe that there are serious questions about the correctness of the method by which I was purportedly served, such that the claim was not properly brought to the my attention. I have a strong defence to the claim, or at least at a minimum a defence which has real prospects of success and I acted promptly when I learnt of the default judgment against me.

40              In circumstances where my failure to file the appropriate acknowledgment of service within the prescribed time was outside of my control, the Court should grant relief against sanctions and allow the default judgment to be set aside in all the circumstances of the case.

41              The Claimant will suffer no prejudice from the setting aside of the judgment.

Costs  

42              I respectfully ask that:

42.1         the Claimant pay the Defendant's costs of the Application;

42.2         there is no order as to costs of the underlying claim and default judgment.

Conclusion

43              For the reasons set out above, I respectfully ask the Court to set aside the default judgment under CPR 13.2 and/or 13.3 and enclose a draft order to this effect.

STATEMENT OF TRUTH

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.

 

Signed .........................

Coupon-mad

If the replies from DCB Legal were headed 'Without Prejudice Save as to Costs' then you cannot mention those nor exhibit the offers because they can only be mentioned at the end of the hearing, when you discuss your costs.

That's what 'WPSATC' offers mean.

Otherwise, that WS is pretty good except it doesn't seem to clearly state that the C has acted 'wholly unreasonably' and should therefore pay all your costs of the application and your hearing attendance costs.

I don't understand the second bit here - why would you ask for costs in 42.1 then in 42.2 say there be 'no order as to costs':

Costs  

42               I respectfully ask that: 

42.1          the Claimant pay the Defendant's costs of the Application;

42.2          there is no order as to costs of the underlying claim and default judgment.

Please show us the Draft Order the solicitor drew up.

Truss_me

The replies from CEL legal (I haven't spoken with DCBL) are not headed with anything of the sort so I assume I'm OK to use as evidence? Since I don't have any other paperwork these really are the best piece which they themselves admit to the length of time between the search and service. 

I read 42.1 as referring to the N244 application and set aside costs. 42.2 as referring to the original claim for the PCN and associated costs. But happy to take a steer if this should be worded another way? 

The draft order is as follows:

UPON the Defendant's application dated [                ] November 2024 (the "Application")

AND UPON READING the witness statement of XXXX dated [                ] November 2024

IT IS ORDERED THAT:

1                 The default judgment entered against the Defendant dated 12 July 2024 (the "Default Judgment") be set aside pursuant to CPR 13.2 [CPR 13.3(1)];

2                 The claim (no. XXXX) ("Claim") is dismissed.

3                 No order as to costs in respect of the Claim.

4                 The Claimant/Respondent shall pay the Defendant's/Applicant's costs of and occasioned by the Application. 

 

LDast

What about challenging that the claim is expired unserved?