CCJ Set Aside Question

Brightonrock123

Hi all, 

I have a quick question about a set aside, I have been reading for a few days and have put together my Witness Statement, Draft Order and have the N244 ready to go.

I have been following a recent thread where the papers were served to an old address and they 'miraculously' found them at their new address once the CCJ was in place.

Mine is very similar so I am checking the same defence is applicable as it is also with Group Nexus / DCB Legal.  I moved in the spring, and my CCJ was August.  I only found out about it because the house we moved out of was empty for a few months and the new tenants dropped a pile of letter to our letting agent.  In there were the letters about the claim, the dates and then eventually the CCJ.

I saw a thread by confusedparking (https://forums.moneysavingexpert.com/discussion/6560049/received-notice-of-debt-recovery-unpaid-county-court-judgement-from-dcbl/p1?new=1) and everything there has been used in my defence.

As they never 'found' me, can I still cite the "CEL V CHAN, CPMS LTD v Akande and other judgments" as well as "VCSL v CARR".

The PoC are about as terrible and basic as theirs too so would also use that defence.

If that is OK to ask please, I can get this submitted today and begin the Set Aside action.

Thank you
Emma

Le_Kirk

CEL v Chan and CPMS v Akande are for use when the POC are lacking in fact and detail.

Coupon-mad

Brightonrock123 said:

Hi all, 

I have a quick question about a set aside, I have been reading for a few days and have put together my Witness Statement, Draft Order and have the N244 ready to go.

I have been following a recent thread where the papers were served to an old address and they 'miraculously' found them at their new address once the CCJ was in place.

Mine is very similar so I am checking the same defence is applicable as it is also with Group Nexus / DCB Legal.  I moved in the spring, and my CCJ was August.  I only found out about it because the house we moved out of was empty for a few months and the new tenants dropped a pile of letter to our letting agent.  In there were the letters about the claim, the dates and then eventually the CCJ.

I saw a thread by confusedparking (https://forums.moneysavingexpert.com/discussion/6560049/received-notice-of-debt-recovery-unpaid-county-court-judgement-from-dcbl/p1?new=1) and everything there has been used in my defence.

As they never 'found' me, can I still cite the "CEL V CHAN, CPMS LTD v Akande and other judgments" as well as "VCSL v CARR".

The PoC are about as terrible and basic as theirs too so would also use that defence.

If that is OK to ask please, I can get this submitted today and begin the Set Aside action.

Seagulls! Loving your username.

You can't use Chan or Akande.

You can use VCS v Carr.

Read thd NEWBIES thread section on setting aside a CCJ.

Brightonrock123

Le_Kirk said:

CEL v Chan and CPMS v Akande are for use when the POC are lacking in fact and detail.

Thank you, this is the POC I received, from looking it seems as lacking as the others:

Please see your case details below as requested.

 

Claim No: ....

 

Claimant: CP PLUS LTD T/A GROUPNEXUS

 

Claimant solicitor: DCB LEGAL LTD (7451)

Telephone: 0203 434 0433

Reference: .....

 

Judgment amount: £235.49

 

 

Particulars of claim: 1. THE DEFENDANT (D) IS INDEBTED TO THE      CLAIMANT (C) FOR A PARKING CHARGE(S) ISSUED  TO VEHICLE  .... AT ABBOTS WOOD BN26.     2. THE PCN(S) WERE ISSUED ON  24/09/2023     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         


In fact it's the exact same car park as the other thread!            

Brightonrock123

Coupon-mad said:

Brightonrock123 said:

Hi all, 

I have a quick question about a set aside, I have been reading for a few days and have put together my Witness Statement, Draft Order and have the N244 ready to go.

I have been following a recent thread where the papers were served to an old address and they 'miraculously' found them at their new address once the CCJ was in place.

Mine is very similar so I am checking the same defence is applicable as it is also with Group Nexus / DCB Legal.  I moved in the spring, and my CCJ was August.  I only found out about it because the house we moved out of was empty for a few months and the new tenants dropped a pile of letter to our letting agent.  In there were the letters about the claim, the dates and then eventually the CCJ.

I saw a thread by confusedparking (https://forums.moneysavingexpert.com/discussion/6560049/received-notice-of-debt-recovery-unpaid-county-court-judgement-from-dcbl/p1?new=1) and everything there has been used in my defence.

As they never 'found' me, can I still cite the "CEL V CHAN, CPMS LTD v Akande and other judgments" as well as "VCSL v CARR".

The PoC are about as terrible and basic as theirs too so would also use that defence.

If that is OK to ask please, I can get this submitted today and begin the Set Aside action.

Seagulls! Loving your username.

You can't use Chan or Akande.

You can use VCS v Carr.

Read thd NEWBIES thread section on setting aside a CCJ.

Seagulls!  Good times for Brighton at the moment.

I have read the thread I thought I covered what I needed, I'll go back and check the VCS v CARR, thank you. 

Le_Kirk

The POC are sparse and I would suggest that Chan and Akande could be used when it comes to defending the underlying claim - unless @Coupon-mad suggests a reason why not.

Coupon-mad

I agree.

This OP can use Chan & Akande!

"VEHICLE REMAINED ON PRIVATE PROPERTY IN BREACH OF THE         PROMINENTLY DISPLAYED TERMS AND CONDITIONS"

Breach not specified.

Brightonrock123

Thank you for your help, sorry for the delay we have been dealing with some bad news.

Can I send this through please?

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

XX

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 XXX, 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 XXX.

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

XXX. I am aware that the Claimant is CP Plus Limited t/as 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 XXX. 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 XXX. I moved from this address to my current address at XXX 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 breach alleged. She identified at paragraph 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 (EXHIBIT XX-03 – VCSL v CARR (Ref. CA-2024-001179) :

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 – CEL V CHAN, CPMS LTD v

Akande 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 XXX. On the same day (XXX) 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 contacted the County Court Business Centre to obtain relevant

information relating to this default judgment. 

22. I received a further email from DCB Legal on XXX 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 XXX, I have submitted my case in order to set-aside this judgment and

fairly present my case (EXHIBIT XX-05 – N244 Form)

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:

XXX

Date:

XXX

On the N244 I have completed section 3 "3. What order are you asking the court to make and why?" as:

The default judgment dated XXX be set aside. The claim is 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. The Claimant shall pay the Defendant's costs of this application in the sum of £303, plus attendance costs.

Brightonrock123

Lastly my draft order states:

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 XXX;

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 XXX ( CLAIM No: XXX) be set aside. 

2. The claim is 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.


Do you feel this is good enough to be sent?

Coupon-mad

Looks good!  Nice example.

The only thing that jarred with me, is that VCS v Carr is in the wrong place and should be referenced higher up, above this heading, which should not be a plural as there's only one claim:

CLAIMS SHOULD BE STRUCK OUT

Brightonrock123

Thank you for your time (from both of us!!) I will get this sent off too.