Received Notice of Debt Recovery - Unpaid County Court Judgement from dcbl

confusedparking

I have prepared my witness statement, are you please able to take a look? I have used a template based on Zubimann's and edited it to hopefully work for my case.


Any help will be greatly appreciated please.

List of Exhibits and WS below. 

EXHIBIT XX-01 – Tenancy Agreement and utility bills

EXHIBIT XX-02 – CEL V CHAN and other judgments.

EXHIBIT XX-03 – Email to DCB Legal and their offer to review further

EXHIBIT XX-04 – Consent Order

EXHIBIT XX-05 – Particulars of Claim

EXHIBIT XX-06 – N244 Form

Case number  

xxxxxxxxxxx  

WITNESS STATEMENT  

I, XXX, of XXX , 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 Judgment (CCJ) entered against me on 28/08/2024, in default due to a defective service of Claim.  

2. I have not received any claim form or detailed particulars of the claim regarding this matter until I became aware via letter from Direct Collection Bailiffs Ltd on 11/10/2024. 

3. 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 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 claim 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.

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

THE CLAIMANT FAILED TO SERVE THE CLAIM  

5. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 28/08/2024. I am aware that the Claimant is Group Nexus and that the assumed claim is in respect of an unpaid Parking Charge Notice.  

6. 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, other than the brief case details emailed to me on 15/10/2024 from the courts, 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, such as the electoral register, 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 17 - 25).  

7. The claim form was not served at my current address, thus I was not aware of the Default Judgment until I received notice of a Debt Recovery Reminder from DCBL on 11th October 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).   

8. The address on the claim is ADDRESS A. I moved from this address to my current address at ADDRESS B in June 2024. In support of this, I can provide documentation showing my updated address, including tenancy agreement, and utility bills. (SEE EXHIBIT XX-01)

9. 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 INTERNATIONAL PARKING COMMUNITY CODE WAS NOT FOLLOWED  

10. International Parking Community (IPC) Code of Practice which requires a soft trace to be undertaken was not followed. The IPC Code of Practice 2019 - Version 7, November 2019, clause 22.1 states;  

11. Operators must take reasonable steps to ensure that the motorist’s details are still correct if 12 months have passed from the Parking Event before issuing court proceedings”  

DVLA ADDRESS DATA MAY NOT BE RELIABLE  

12. 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.  

13. 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.  

14. 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').  

15. 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.  

16. There is a wealth of case law making reference to the failures of parking companies to correctly ascertain the addresses of defendants. Of note:  

17. In Collier v Williams [2006] 1 WLR 1945 (CA) LJ Dyson said  

  

18. "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."  

  

19. The same sentiment was echoed by:  

  

20. HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)  

  

21. HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)  

  

22. 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)   

 23. 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  

  

24. “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."  

25. 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.  

 

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.

26. 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.

27. 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).  

28. 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. 

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

30. 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.  

31. 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.

32. 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:

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

34. 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.

35. Addresses change frequently and the parking industry and DVLA know this; hence the International Parking Community'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.

36. 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 address did not constitute valid service.

37. 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 in CPR 7.5. This was the case even though the strike out application had not been made correctly.

38. 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 erring Claimant by granting a retrospective order validating the attempted service.

39. Held: 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 remedy the claimants’ error. That rule should not be used to get around service requirements and the claimants also did not satisfy the requirements under CPR 6.15 or 6.16. Following the approach in Piepenbrock v Associated Newspapers Ltd [2020] EWHC 1708 (QB) ([69]), having considered all the circumstances under rule 6.15, and finding no ‘good reason’, in Ideal Shopping Direct there were similarly no grounds to find the ‘exceptional circumstances’ required under rule 6.16. 

FURTHER RELEVANT CASE LAW ON EXPIRED UNSERVED CLAIMS

40. There are several authorities, including the judgment in Boxwood [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.”  

confusedparking

41. 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."  

42. 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.  

43. “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 [...]  

44. 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. [...]  

45. 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]. [...]  

46. 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.”  

47. 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.  

48.  CPR 12.3(1) states 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 an acknowledgement of service or a defence to the claim (or any part of the claim); and (b) the relevant time for doing so has expired. In this case, the claim form was not validly served in August 2024 due to failure to check for a current address (CPR 6.9 (3)), therefore the time limit for acknowledging service has not begun. As the time limit has not begun it cannot have expired. As the time limit has not expired the condition in CPR 12.3(1)(b) has not been satisfied. This results in a mandatory set aside (CPR 13.2). It follows that if a claim is set aside for failure to be served, then the claim cannot be resurrected and served again after 4 months has passed from the date of filing pursuant to CPR 7.5(1). This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016):  

49. “Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgement of service only if (a) the defendant has not filed an acknowledgement of service or a defence and (b) the relevant time for doing so has expired (my italics). I accept Mr McLaren's argument that when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgement of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).  

50. I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgement of service when "any of the conditions in rule 12.3(1) …was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.  

51. This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. 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 acknowledgement. He is simply not in default at all.”  

CLAIMS SHOULD BE STRUCK OUT  

52. In the alternative: the claim should be struck out regardless of the above other abusive conduct, because the POC fail to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5.

1. THE DEFENDANT (D) IS INDEBTED TO THE      CLAIMANT (C) FOR A PARKING CHARGE(S) ISSUED  TO VEHICLE  HT03TNF AT ABBOTS WOOD BN26.     2. THE PCN(S) WERE ISSUED ON  03/09/2023     3. THE DEFENDANT IS PURSUED AS THE DRIVER OF THE VEHICLE FOR BREACH OF THE TERMS ON THE   SIGNS (THE CONTRACT). REASON:VEHICLE REMAINEDON PRIVATE PROPERTY IN BREACH OF THE         PROMINENTLY DISPLAYED TERMS AND CONDITIONS.  4. IN THE ALTERNATIVE THE DEFENDANT IS       PURSUED AS THE KEEPER PURSUANT TO POFA 2012, SCHEDULE 4.                                  AND THE CLAIMANT CLAIMS                      1. £120 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 £.01 UNTIL JUDGMENT OR SOONER PAYMENT.       3. COSTS AND COURT FEES                                                                                                                                                                                                                 

53. In view of this woeful POC (EXHIBIT XX-05) I am confident in relying upon a recent persuasive Appeal judgment as authority to support striking out the claim Dismissing this claim is the correct course, with the Overriding Objective in mind.

54. Bulk litigators (legal firms like the notorious DCB Legal with their well-documented connections to the IPC 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:

55. In Civil Enforcement Limited v Chan (Ref. E7GM9W44) heard on 15th August 2023 and which was also about a N244 'parking CCJ' set aside application (wrong refused at the first hearing), HHJ Murch, sitting at Luton County Court, 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'.

56. The same is true in this case and in view of the Chan judgment and dozens of similar decisions both at hearings and at allocation stage (SEE EXHIBIT XX-02 - Chan and other Judgments) the Court should strike out the two claims, using its powers pursuant to CPR 3.4.

SET ASIDE APPLICATION WAS MADE PROMPTLY

57. I have responded to this matter as promptly as possible. I discovered a CCJ was lodged onto my credit file on the 11th October 2024. On the same day (11th October 2024) I wrote to DCB Legal offering to jointly apply to set aside the judgment.  (EXHIBIT XX-03)

58. An acknowledgement was received on 15th October 2024 confirming receipt of my email and an acknowledgement the correspondence been sent to an old address , they requested evidence of my new address in order to review the matter further. 

59. On 15th October, I also contaceted the County Court Business Centre to obtain relevant information relating to this default judgement. 

60. I received a further email from DCB Legal on 22nd October 2024 offering me to pay a higher fee than the CCJ (£335.69) in return for the registration of Judgment being removed from my credit file by the Registry Trust. I replied on the same day declining this offer and inviting them again to jointly apply to set aside the judgement.

59. So on 2nd November 2024, I have submitted my case in order to set-aside this judgement and fairly present my case (EXHIBIT XX-06)

60. 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 should be set aside, the claim struck out, and I ask the Court to kindly consider the reimbursement of the fee of £303 from the claimant should this request be successful.

 

Statement of truth:  

61. 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

CP Plus aren't in the IPC. They are in the BPA so you are quoting the wrong Code of Practice.

But I think you should remove that section because DCB Legal did nothing wrong re the address.  You told them in April "this is my address for service" then you moved 6 weeks later without telling them. You cannot argue that they should have traced your new address.

Remove this because you are not 4 months past the August claim form:

"Given that I am going further and declaring the unserved claims 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 claim 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)."

Remove para 6.

Remove ALL paragraphs 9-47 because none of that is relevant to your case.

Then renumber what's left.


Then:

add in words about CPMS v Akande underneath where you talk about CEL v Chan.  And add the Akande transcript if it isn't already in your 'strike out' judgments PDF.


Then:

add in excerpts from VCS v Carr (below, thanks to icy_fox for this summary) and make sure every paragraph has a number:

VCS vs Carr

Court of Appeal Reference: CA-2024-001179

Title: Vehicle Control Services Limited v Carr

Type: Appeal from the order of HONOUR JUDGE EVANS Manchester County Court and Family Court dated 07-May-2024

Key Points  (paragraph numbers from the Court of Appeal transcript):

Avoiding injustice

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.

Assessing a Judgment in Default (Denton):

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

The following is relevant, albeit where the default judgment was obtained after sending to a separate address:

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.

Real prospect of a successful defence:

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.

No opportunity to defend (albeit a different address casing a "failure to respond"):

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.

No Opportunity to contest (first sentence):

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.

Transcript from the Court of Appeal:

confusedparking

Thank you so much for your help I appreciate it. When I’m home later this evening I’ll make your changes and update. Thank you again 

confusedparking

Coupon-mad said:

Then:

add in words about CPMS v Akande underneath where you talk about CEL v Chan.  And add the Akande transcript if it isn't already in your 'strike out' judgments PDF.

Thank you for this.  I am reading the transcript of CPMS v Akande (https://www.dropbox.com/scl/fi/2jef4c7bljyp6dse24p70/Judgments.pdf?rlkey=jsgusx180wzjz2f6er0436xw2&e=1&st=03x4tsbq&dl=0) 

I am trying to lean about this, and from my understanding, can I use the paragraphs:

confusedparking

When you state strike out judgements PDF - do you mean this one? https://www.dropbox.com/scl/fi/2jef4c7bljyp6dse24p70/Judgments.pdf?rlkey=jsgusx180wzjz2f6er0436xw2&e=1&st=03x4tsbq&dl=0

Again, sorry for the questions, thank you so much.

Best wishes
Jamie

Coupon-mad

No that's really old.

The a-f Exhibits list in the NEWBIES thread gives you the version with AKANDE.  Please use the NEWBIES thread as your resource.

Le_Kirk

The latest one was 29th september 2024: -
Judgments

confusedparking

Thank you - sorry what am I missing please they both seem to be the same file?

Charles Akande is the 2nd case on both links.

Le_Kirk

Then use either one.