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

Lia_F

@Coupon-mad @confusedparking could you please tellme where I can find the transcript: Vehicle Control Services Limited v Carr (Ref. CA-2024-001179) heard on 7th May 2024? Many thanks, @Lia_F

Coupon-mad

Yes you can easily search the forum for it.

confusedparking

Coupon-mad said:

Yes it is a good CCJ set aside WS.  The court has no choice. It must be set aside.

Have you done your Draft Order too, and matched that in 'the order you are asking for and why' in the box in the N244?

That is such a relief to hear you say that, thank you.

I have ready to go:

N244 form (pasted below)
Draft Order (pasted below, saved in word format)
Witness Statement (pasted below, saved as PDF)

From my understanding, I email this to the CNBC and then call to make payment over the phone, and that is that until I hear from them?

Thank you again for all your help - if this is good enough in your opinion I'll send asap.

confusedparking

List of Exhibits and WS below. 

EXHIBIT XX-01 – Tenancy Agreement and utility bills

EXHIBIT XX-02 – CEL V CHAN, CPMS LTD v Akande and other judgments.

EXHIBIT XX-03 – VCSL v CARR (Ref. CA-2024-001179) 

EXHIBIT XX-04 – Particulars of Claim

EXHIBIT XX-05 – 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).  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. 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 judgment was wrongly entered as I was unable to submit an acknowledgement of service in the absence of notification of the case (CPR 13.3).   

7. 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)

8.  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):  

9. “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).  

10. 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.  

11. 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  

12. 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                                                                                                                                                                                                                 

13. In view of this woeful POC (EXHIBIT XX-04) I am confident in relying upon two recent persuasive appeal judgments as authority to support striking out the claim Dismissing this claim is the correct course, with the Overriding Objective in mind.

14. 16. In Car Park Management Service LTD v Akande heard on 10th May 2024 before Her Honour Judge Evans, the following has been stated:

14.1. "The district judge said paragraph 5 of her judgment that she did not accept there was sufficient set out in the claim form to enable the court and in particular the Defendant to understand the nature of the brech alleged. She identified at pararaph 9 that an allegation of breach and the nature of the breach rather than a simple assertion of breach of terms and conditions is fundamental  to a claim of this nature.

14.2. "She identified that there are a number of different ways in which a defendant might breach the terms and conditions  in a car park: for example, not displaying  a ticket, overstaying, not parking within the correct area for parking. She noted that these Particulars of Claim do not specify  which of those, if any, or which other breach was said to have been committed by this Defendant."

15. 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:

16. 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'.

17. In Vehicle Control Services Limited v Carr (Ref. CA-2024-001179) heard on 7th May 2024 the following has been noted: 

17.1. Avoiding Injustice: "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 

 of the overriding objective nor of what the justice of the case required."

17.2. Assessing a Judgment in Default (Denton):  "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"

17.3. "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."

17.4. Real prospect of a successful defence: "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."

17.5. No opportunity to defend: "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."

17.6. No Opportunity to contest: "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."

18. 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 claim, using its powers pursuant to CPR 3.4.

SET ASIDE APPLICATION WAS MADE PROMPTLY

19. 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. 

20. 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. 

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

22. 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 judgment.

23. So on 2nd November 2024, I have submitted my case in order to set-aside this judgment and fairly present my case (EXHIBIT XX-05)

24. Considering all of the above, I was unable to defend myself against this claim. I believe that the Default Judgment 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:  

25. 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:  

BETWEEN:

Group Nexus (Claimant)

-- and –

<MY NAME> (Defendant)

UPON reading the defendant’s application dated xx November 2024 

IT IS ORDERED THAT:

1. The default judgment dated 28 August 2024 ( CLAIM No: XXXXXXX ) be set aside. 

2. The claim struck out due to the claim form having not been served to the correct address.

3. The Claimant do pay the Defendants costs of this application of £303 on an indemnity basis.

1505grandad

Some probably pedantic observations:-

Typo  -  "14.1. "The district judge said paragraph 5 of her judgment that she did not accept there was sufficient set out in the claim form to enable the court and in particular the Defendant to understand the nature of the brech alleged."

Just checking:-

"Group Nexus (Claimant)"  -  should the registered name be stated i.e.:-

CP Plus Limited t/as Group Nexus

"17. In Vehicle Control Services Limited v Carr (Ref. CA-2024-001179) heard on 7th May 2024 the following has been noted: "  -  the exhibit number (in list EXHIBIT XX-03 ) not stated.

confusedparking

Hi Grandad, 

That is great thank you I have made those changes.

Coupon-mad

Just checking:

Is your WS dated? It only says 'signed'.

Your draft order point 2 needs this adding:

and in view of the persuasive appeal cases CEL V Chan and CPMS v Akande, in which Particulars of Claim which failed to specify the alleged breach were struck out.

Your words in the box at point 3 of the N244 are wrong.  You don't want to be ordered to defend the claim! That section must match your Draft Order.

confusedparking

Coupon-mad said:

Just checking:

Is your WS dated? It only says 'signed'.

Your draft order point 2 needs this adding:

and in view of the persuasive appeal cases CEL V Chan and CPMS v Akande, in which Particulars of Claim which failed to specify the alleged breach were struck out.

Your word in the box at point 3 of the N244 are wrong.  You don't want to be ordered to defend the claim! That section must match your Draft Order.

Thank you.  Yes it is dated now.

Point 3 on the N244 now says this:   an order setting aside the judgment dated 28/08/2024 because he was unaware of the proceedings. The Claimant served proceedings at an address not used by the Defendant since June 2024, CPR 6.9, The Claimant found the current address soon after default judgment. The defendant seeks the Claimant pay the Defendants costs of this application of £303 on an indemnity basis.

(it won't let me add any more to the box it disappears from view)

Is that better do you think?

I have added "and in view of the persuasive appeal cases CEL V Chan and CPMS v Akande, in which Particulars of Claim which failed to specify the alleged breach were struck out." to my point 2 on the WS.

Thank you again for all your time on this.

Coupon-mad

No, remove this middle bit because this isn't about the order you want:

"because he was unaware of the proceedings. The Claimant served proceedings at an address not used by the Defendant since June 2024, CPR 6.9, The Claimant found the current address soon after default judgment. The defendant seeks..."

Replace that with the strike out words.

Have a look at the latest effort by @Lia_F  on their thread.  They've got there!

In fact I think I signposted them to yours...

confusedparking

Thank you @Coupon-mad

How does this look now, having used Lia's

DRAFT ORDER

CLAIM No: XXX

BETWEEN:

CP Plus Limited t/as Group Nexus (Claimant)

-- and –

XXX (Defendant)

UPON considering the application of the Defendant to set aside the Judgment by default entered on 15 August 2024;

AND UPON reading the evidence in support of the application;

AND UPON the court taking note that the Claimant was not entitled to default judgment, having failed to serve on the Defendant's usual residential address;

AND UPON the court finding that the Particulars of Claim fail to comply with CPR 16.4(1)(a) by lacking a concise statement of facts and therefore do not constitute a valid cause of action;

IT IS ORDERED THAT:

1. The default judgment dated 28 August 2024 ( CLAIM No: XXX) be set aside. 

2. The claim is further struck out on the grounds that the Particulars of Claim fail to comply with CPR 16.4(1)(a) and do not provide a concise statement of facts necessary to establish a cause of action.

3. The Claimant shall pay the Defendant’s costs of this application in the sum of £303.

Coupon-mad said:

No, remove this middle bit because this isn't about the order you want:

"because he was unaware of the proceedings. The Claimant served proceedings at an address not used by the Defendant since June 2024, CPR 6.9, The Claimant found the current address soon after default judgment. The defendant seeks..."

Replace that with the strike out words.

Have a look at the latest effort by @Lia_F  on their thread.  They've got there!

In fact I think I signposted them to yours...

I'm a little confused sorry, in Lia's N244 she mentions more than 4 months which mine isn't.  Is that the bit you mean to change?