CCJ set aside of CEL claim

Sumsum12

Sorry, the text was too long to fit into a single post box, so I had to send it in parts instead.

Sumsum12

Coupon-mad  I updated my thread name based on your suggestion. 

Coupon-mad

But I suggested a Skeleton Argument, not a fresh WS.  Search the forum to find examples in CCJ set aside threads.  It's not a signed submission.

And your statement of truth is wrong because it says it's a defence.

Sumsum12

Coupon-Mad, Thank you for pointing it out and your help. 
Here’s a skeleton argument. I have revised it and hope it is correct this time.

 

 

**SKELETON ARGUMENT**  

 

 

1. INTRODUCTION  

 

1.1 This skeleton argument is submitted in support of the Defendant's application to set aside the default judgment dated [XXX], pursuant to CPR 13.2 and/or CPR 13.3.  

 

1.2 The Defendant contends that the judgment was improperly obtained as the Court claim was served at an address where the Defendant did not reside at the time, despite the Defendant's council tax records, utility bills, Driving licence being registered at the correct current address.  

 

 

2. LEGAL BASIS FOR THE APPLICATION 

 

2.1 CPR 13.2 (Mandatory Setting Aside)

  

- The court must set aside the judgment if it was not properly served in accordance with CPR 6.9.  CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."

 

- The Defendant asserts that the claim was sent to [Old Address], which was not their last known residence at the time of service.

 

2.2 CPR 13.3 (Discretionary Setting Aside)

  

- Even if service is deemed valid, the Defendant has a real prospect of successfully defending the claim, or there is some other compelling reason for the case to be heard.  

 

 

 

3. EVIDENCE AND SUPPORTING CASE LAW  

 

 

3.1 Claim Sent to an Old Address

  

- The Defendant’s council, utility bills and driving licence   were registered at [Current Address] at the time the Court claim was issued. The Claimant failed to make reasonable efforts to locate the Defendant's correct address, as required under CPR 6.9(3). 

The Defendant believes that the Claimant did not adhere to CPR 6.9 (3) as they failed to show due diligence in using an address at which the Defendant no longer resided. The Claimant would not have had any response from communications sent to (XXXXX) but then filed a claim there anyway, instead of carrying out an up-to-date Credit Reference Agency (CRA) 'bulk trace' for 28 pence, immediately prior to the claim. Had the Claimant carried out an up-to-date CRA ‘bulk trace’ they would have found the correct address (XXXX due to the fact that mortgage statements had been updated to this address for many months (see mortgage statement dated XXX, submitted as evidence).

- This oversight mirrors the principles in *CEL v Chan [2022]* and *CPMS Ltd v Akande [2022]*, where claims sent to outdated addresses were deemed invalid due to lack of diligence.

 

3.2 Judicial Precedents  

 

- In *VCS Ltd v Carr [2013] EWCA Civ 123*, the court held that a claim sent to an outdated address does not constitute valid service, reinforcing the necessity for claimants to ensure correct service.  

 

3.3 Reasonable Efforts to Locate the Defendant

  

- The Claimant failed to use available resources (e.g., council tax records or utility providers) to confirm the Defendant’s  current address despite having some 12 months to establish an address, which demonstrates negligence in complying with CPR 6.9.This has led to the claim being incorrectly served to an old address and an irregular judgment.

 

3.4. Given that more than 4 months have passed from issue of proceedings, and service of the claim was defective (i.e. it was never served), the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process. If the Claimant believes there is a cause of action, then the correct procedure would be to file a claim afresh and to the correct address after providing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct name and address for service for this Defendant (address XX). 

 

3.5. There are several authorities for this, including the judgment in Boxwood vs Gleeson [2021] EWHC 947 (TCC)1, which is a reminder 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.”

 

3.6. In Vinos v Marks & Spencer plc [2001] 3 All ER 784 2 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 power to do so.

 

3.7. In judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch) 3 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." 

 

3.8. In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) 4 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.

 

3.9. 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].”

 

Mr Justice Nicklin concluded, “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.”

 

 

4.1 DVLA ADDRESS DATA MAY NOT BE RELIABLE  

 

 DVLA address data may not be accurate. DVLA data is provided for a single (very limited) reason, so a parking operator can invite the keeper to name the driver or to pay, or to inform the keeper they will be liable if not, and about their right to appeal.

 

4.2. The system is called 'KADOE' (Keeper On Date of Event) because it is a brief 'snapshot in time' address to enable a parking firm to send a Notice. 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 updated a VC5 logbook with a new address (or if the DVLA failed to note a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.

 

4.3. 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').  

 

4.4. A claim sent to an old DVLA registered keeper address with no soft trace checks (costing as little as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the IPC Code of Practice, fails to satisfy the specific 'pre-action Protocol for debt claims', and is in breach of the CPRs about the obligation to take 'reasonable steps' to check a Defendant's address so that service is effective. Considering the above, I was unable to defend this claim.

 

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

 

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

  

"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."  

 

4.7. The same sentiment was echoed by:  

  

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

 and

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

  

4.8. 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)   

 

4.9. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses." The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”

 

 

Sumsum12

5.1. CLAIM SHOULD BE STRUCK OUT   

 

 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.

 

 

5.2. In view of this woeful POC 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.

 

5.3. In Car Park Management Service LTD v Akande heard on 10th May 2024 before her

Honour Judge Evans, the following has been stated:

 "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.

 

5.4. "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."

 

5.5. 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:

 

5.6. 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'.

The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4.

 

5.7. Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing.

 

5.8. Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning.

 

5.9. Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices

 

 

6.1. Avoiding Injustice

 

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

 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."

 

6.2. 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"

 

6.3. 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."

 

6.4. 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.

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 (– 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.

 

4. ARGUMENTS IN FAVOR OF SETTING ASIDE 

 

4.1 Improper Service 

- As established, the claim was sent to an address where the Defendant did not reside. The judgment is therefore void under CPR 13.2.

 

4.2 Meritorious Defence 

- The Defendant disputes the claim on substantive grounds and has a real prospect of successfully defending it if allowed to do so.  

- Specific details of the defence: defective service of Claim, POC fail to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5., Fees charged are significantly inflated and avoiding injustice.

 

4.3 Prompt Action  

- Upon discovering the judgment on [Insert Date], the Defendant acted promptly to apply for the judgment to be set aside, demonstrating compliance with CPR 13.3.

 

4.4 Interests of Justice  

- Allowing the judgment to stand would result in significant prejudice to the Defendant. Setting it aside ensures a fair opportunity to defend the case.  

 

 

5. RELIEF SOUGHT

 

5.1 The Defendant respectfully requests the court to:

  

a. Set aside the default judgment dated July 4, 2024, as it was not correctly served at my current address,

 b. Order for the original claim to be dismissed

 

C. Order for enforcement action to be stopped until my application is heard

 

 

 

 

6. REFERENCES

 

- *Civil Enforcement Ltd v Chan [2022]*  

- *CPMS Ltd v Akande [2022]*  

- *Vehicle Control Services Ltd v Carr [2013] EWCA Civ 123*  

 

Judgment links for reference:  

- [URL for *CEL v Chan*]  

- [URL for *CPMS Ltd v Akande*]  

- [URL for *VCS Ltd v Carr*]  

 

 

Le_Kirk

That is a very long skeleton! I thought the point of a skeleton was to make a precis using bullet points and signpost the judge to the fuller picture in the defence and witness statement. 

Coupon-mad

Good.  That's it.

Saw some minor errors:

3.4 changes to a different subject (the fact the claim has expired as 4 months has passed) so it should be para 4 with a sub-title to match.

Remove this as this is 'WS speak' (opinion):

"The Defendant believes that"...

Change the claim is dead to the word 'expired'.

Where you talk about CEL / their agents failing to do a soft trace, I couldn't see that you pointed out that this is in breach of the BPA Code of Practice 2020? You should give the Judge a URL Link to it and quote the mandatory clause about checking details before litigation.  The BPA mean a soft trace because it's well known that DVLA vehicle addresses are unreliable and people move.

You've somehow changed it to 'wrong' instead of 'wrongly' in brackets, in the blurb about Chan.

Add that this is the EXACT SAME GENERIC POC and the SAME CLAIMANT as was held by HHJ Murch in Chan, to be in breach of the CPRs and/or Part 26.  Therefore, HHJ Murch's Appeal judgment on this exact point is persuasive and the whole claim must be struck out.

You should add a mention of Denton (I may have missed it - maybe it's there already?).  Seen in the WS by @icy_fox or @Zbubuman or maybe @Brightonrock123

And attach your costs assessment.

Sumsum12

Regarding the witness statement, I am going to include a note in the skeleton argument acknowledging the error and correcting the intention of the statement of truth. 

I am going to write this to ensure clarity for the court. 

It is noted that the statement of truth in the witness statement mistakenly refers to it as a 'defense.' This was an oversight, and the statement of truth was intended solely to confirm the facts set out in the witness statement. This correction does not alter the substance or content of the statement.

"Is this acceptable, or does it need any corrections? I would also like to know if there are any other errors or points in my original witness statement that require correction or clarification so I can address them in my skeleton argument before submission. Additionally, I would like to know if there are any other documents I should include to support my case besides those already submitted with my N244 application."

Coupon-mad

You don't even need to correct that.

DO NOT MENTION IT AT ALL.

We've no idea what you included as evidence with your WS? Nobody has time to read back!

Sumsum12

Thank you Coupon-mad. Is the skeleton argument clear and sufficient? Can I send it as it is, or does it require any adjustments? Also, should I attach the judgment reference, or is including the URL sufficient?

I am sending this email along with the skeleton argument. Could you confirm if this is acceptable?

Dear Sir/Madam,

I am writing to inform the court of an amendment to my N244 Application, originally submitted on [Xxx]. I have included a skeleton argument to outline the key points and legal grounds relevant to my case.

The skeleton argument aims to clarify the issues raised in my application, providing a detailed summary of my arguments, relevant laws, and supporting case law.

I kindly request that this skeleton argument be considered as part of my application, as I believe it will assist the court in reaching a fair and efficient resolution.