help with setting aside CCJ against CEL and DCBLegal

KeithP

Crywolfnever said:

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 11/11/2024, 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 a credit report search on 11/10/2024. 

Are those two dates correct?
Assuming you are using the traditional dd/mm/yyyy date format, paragraph 2 states that you were aware of the Claim one month before a Default Judgment was made.

Coupon-mad

Crywolfnever said:

Thank you couon mad. See the POC below:

Claim No: xxxxxx

 

Claimant: CIVIL ENFORCEMENT LIMITED

 

Claimant solicitor: DCB LEGAL LTD

Telephone: 0203 434 0433

Reference: xxxxxxx

 

Judgment amount: £548.86

 

Particulars of claim: 1. THE DEFENDANT (D) IS INDEBTED TO THE      CLAIMANT (C) FOR A PARKING CHARGE(S) ISSUED  TO VEHICLE  HG11VXL AT CAR PARK 1 73 OAKFIELDROAD CROYDON CR0 2UX.                        2. THE PCN(S) WERE ISSUED ON  05/10/2021,    30/10/2021.                                  3. THE DEFENDANT IS PURSUED AS THE DRIVER OF THE VEHICLE FOR BREACH OF THE TERMS ON THE   SIGNS (THE CONTRACT). REASON:PERMIT HOLDERS  ONLY                                         4. IN THE ALTERNATIVE THE DEFENDANT IS       PURSUED AS THE KEEPER PURSUANT TO POFA 2012, SCHEDULE 4.                                  AND THE CLAIMANT CLAIMS                      1. £340 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 £.04 UNTIL JUDGMENT OR SOONER PAYMENT.       3. COSTS AND COURT FEES                                                                                                                                                         

I don't think Chan or Akande are relevant. Your POC states the breach/term.

Crywolfnever

I have paid for £303 for the N244 this morning.

Crywolfnever

Thank you Keith P.  Are those two dates correct?
Assuming you are using the traditional dd/mm/yyyy date format, paragraph 2 states that you were aware of the Claim one month before a Default Judgment was made.
the second date is  04/12/20024 

Crywolfnever

I shall remove Chan or Akande from it. Your POC states the breach/term.

Crywolfnever

So I should remove 

15.2 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.

and the whole of :

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  HG11VXL AT CAR PARK 1 73 OAKFIELDROAD CROYDON CR0 2UX.                        2. THE PCN(S) WERE ISSUED ON  05/10/2021,    30/10/2021.                                  3. THE DEFENDANT IS PURSUED AS THE DRIVER OF THE VEHICLE FOR BREACH OF THE TERMS ON THE   SIGNS (THE CONTRACT). REASON: PERMIT HOLDERS  ONLY                                         4. IN THE ALTERNATIVE THE DEFENDANT IS       PURSUED AS THE KEEPER PURSUANT TO POFA 2012, SCHEDULE 4.                                  AND THE CLAIMANT CLAIMS                      1. £340 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 £.04 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. 1. 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."

from the WS?

Le_Kirk

You also have reference to Chan & Akande in the unnumbered paragraph between 8# and 9# where you state they were struck out due to lack of diligence!

Coupon-mad

Crywolfnever said:

the second date is  04/12/20024 

So you've corrected that date in your WS now, and removed everything about Chan and Akande?

I would add this instead:

The claim appears to have had no prospects of success and I believe it should be dismissed at the application hearing. Having now obtained the sparse Particulars from the CNBC to narrow down the issues for this application, I see that the Claim alleges that parking is offered strictly to 'permit-holders only'. If that was indeed the message on a sign (the Claimant is put to strict proof of the alleged contract and breach) then, if the driver is being accused of not having a permit - which I am having to guess - nothing of value was actually offered to non-permit holders. Therefore, in the absence of consideration flowing from the trader to the consumer, no contractual 'meeting of minds' was possible, as was found by DJ Iyer at Manchester Court, in PACE v Lengyel (see Exhibit XXx). 


Read it here but this is in someone else's WS:

https://www.dropbox.com/scl/fi/l7sboclnrlwastfw9m4vf/Main-WS-Forum-PDF.pdf?rlkey=bhj7tu24u99unbh23wty0kf29&e=1&dl=0

Search the forum for the transcript on its own as you'll need it as an exhibit.

Crywolfnever

Thank you Couon-Mad. All removed. this is the final ws to be submtted. kindly give it a final check.

List of Exhibits and WS below. 

 

EXHIBIT XX-01 – HMRC TAX CODE NOTICE AND SOUTHWARK COUNCIL SERVICE CHARGE INVOICE

 

EXHIBIT XX-02 – PACE v LENGYEL

 

EXHIBIT XX-03 – Particulars of Claim

 

EXHIBIT XX-04 – Acknowledgment email from DBC Legal

 

EXHIBIT XX-05 – N244 Form

 

 

 

Case number  

 

XXXXXXXXXX

 

WITNESS STATEMENT  

 

I, XXXXXXXXXX of XXXXXXXXXXXXXXX, 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 11/11/2024, 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 a credit report search on 04/12/2024. 

 

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 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 11/11/2024. I am aware that the Claimant is Civil Enforcement Limited 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 CCJ entered on my credit report on 4th December 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 XXXXXXXX.  I moved from this address to my current address at XXXXXXXXX in December 2021. In support of this, I can provide documentation showing my updated address, including HMRC tax code notice, and Southwark council service charge invoices. (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 November 2024 due to failure to check for a current address (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 (XXX) 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. 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).

 

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  

1. THE DEFENDANT (D) IS INDEBTED TO THE      CLAIMANT (C) FOR A PARKING CHARGE(S) ISSUED TO VEHICLE  HG11VXL AT CAR PARK 1 73 OAKFIELDROAD CROYDON CR0 2UX.                        2. THE PCN(S) WERE ISSUED ON  05/10/2021,    30/10/2021.                                  3. THE DEFENDANT IS PURSUED AS THE DRIVER OF THE VEHICLE FOR BREACH OF THE TERMS ON THE   SIGNS (THE CONTRACT). REASON: PERMIT HOLDERS  ONLY                                         4. IN THE ALTERNATIVE THE DEFENDANT IS       PURSUED AS THE KEEPER PURSUANT TO POFA 2012, SCHEDULE 4.                                  AND THE CLAIMANT CLAIMS                      1. £340 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 £.04 UNTIL JUDGMENT OR SOONER PAYMENT.       3. COSTS AND COURT FEES   

 

 

12.1 The claim appears to have had no prospects of success and I believe it should be dismissed at the application hearing. Having now obtained the sparse Particulars from the CNBC to narrow down the issues for this application, I see that the Claim alleges that parking is offered strictly to 'permit-holders only'. If that was indeed the message on a sign (the Claimant is put to strict proof of the alleged contract and breach) then if the driver us being accused of not having a permit - which I am having to guess - nothing of value was actually offered to non-permit holders. Therefore, in the absence of consideration flowing from the trader to the consumer, no contractual 'meeting of minds' was possible, as was found by DJ Iyer at Manchester Court, in PACE v Lengyel (see Exhibit XX-02).

 

 

 

13.1 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 3-year delay by the Claimant instead of carrying out an up-to-date Credit Reference Agency (CRA) 'bulk trace' for 28 pence, immediately prior to the claim.

 

 

 

14.1 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.

 

14.2 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.

 

14.3 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').  

 

14.4 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.

 

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

 

14.6 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."  

 

14.7 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)  

  

14.8 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)   

 

14.9 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.”

 

Crywolfnever

SET ASIDE APPLICATION WAS MADE PROMPTLY

 

15. I have responded to this matter as promptly as possible. I discovered a CCJ was lodged onto my credit file on the 4th December 2024. On the same day (4th December 2024) I also contacted the County Court Business Centre to obtain relevant information relating to this default judgment.

 

16   On the next day (5th December 2024). I spoke to Chris at DCB Legal and I wrote to DCB Legal offering to jointly apply to set aside the judgment. 

 

 

17. An acknowledgement was received on 5th December 2024 confirming receipt of my email. Chris had verbally refused the request for application for joint set aside of the default judgement. (EXHIBIT XX-04)

 

18. So on 11th December 2024, I have submitted my case in order to set-aside this judgment and fairly present my case (EXHIBIT XX-05)

 

19. Considering all of the above, the defendant was unable to defend himself against this claim. The defendant believes that the Default Judgment against the defendant was issued incorrectly and thus should be set aside, the claim struck out, and the defendant seeks the Claimant pay the Defendants costs of this application of £303 and cost of travel for the hearing on an indemnity basis.

 

 

Statement of truth:  

 

20. The defendant believes that the facts stated in this Witness Statement are true. The defendant understands 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:

 

 

Civil Enforcement Ltd (Claimant)

 

 

-- and –

 

 

<XXXX> (Defendant)

 

 

UPON reading the defendant’s application dated 11th December 2024 

 

IT IS ORDERED THAT:

 

1. The default judgment dated 11th November 2024 (CLAIM No: XXXXX) 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 and cost of travel for the hearing on an indemnity basis.