help with setting aside CCJ against CEL and DCBLegal

1505grandad

"Go back to read some recent CEL CCJ threads. 2024 CCJs only - no more reading old threads.

Copy a recent CCJ set aside WS that talks about the BPA CoP. Ideally copy a CEL one."

Just checking that you have seen and actioned the above advice by C-m

Coupon-mad

Crywolfnever said:

Thanks coupon Mad and Le_Kirk, I cannot seem to find the Where's VCS v Carr transcript to use as an exhibit?

Search the forum for it.  There's a thread about it by @Grizebeck I think.

Crywolfnever

Many thanks Coupon Mad. I have mde the necessary changes. Also thank you 1505granddad.

Crywolfnever

Kindly have a final look for me before I submit it to the court with the N244.

List of Exhibits and WS below. 

 

EXHIBIT KF-01 – HMRC TAX CODE NOTICE AND SOUTHWARK COUNCIL SERVICE CHARGE INVOICE CREDIT CARD STATEMENTS AND PENSION LETTER

 

EXHIBIT KF-02 – PACE v LENGYEL

 

EXHIBIT KF-03 – Particulars of Claim

 

EXHIBIT KF-04 – Email attachment to DCB Legal offering to jointly apply to set aside the judgment

 

EXHIBIT KF- 05 – Copy of Excel Parking Services vs Wilkinson (G4QZ465V) Approved Judgement by Judge Jackson of Bradford County Court.

 

Exhibit KF- 06 – Copy of Chevalier-Firescu v Ashfords LLP [2021] F83YX432

 

EXHIBIT KF- 07 – Copy of VCS vs Carr - Reference: CA-2024-001179

 

EXHIBIT KF-08 – Further cost breakdown

 

 

 

Case number  

 

xx

 

WITNESS STATEMENT  

 

I,xx of xx, 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). 

 

 

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 XX.  I moved from this address to my current address at XX in December 2021. In support of this, I can provide documentation showing my updated address, including HMRC tax code notice, Pension letters and Southwark council service charge invoices and credit card statements. (SEE EXHIBIT KF-01)

 

8. 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. 

BRITISH PARKING ASSOCIATION CODE OF PRACTICE WAS NOT FOLLOWED 

9. The claimant’s failure to take reasonable steps to ascertain the address of the Defendants current residence, 

a.      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 BPA 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.

 

b.     Having received no return correspondence from me whatsoever following their assumed multiple attempts to reach me at an old address, has led to the claim being incorrectly served to an old address and an irregular judgment, pursuant to CPR 6.9 (3). Thus they have caused the claim to be improperly served. I.e. They failed to serve it at all.

c.      CPR 6.9 (3): “Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).”

 

d.     This failure to carry out proper checks to establish the correct address for service before filing a claim not only breaches the CPRs, but also the pre-action protocol for debt claims, and the British Parking Association Code of Practice.

10. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) by simply using an old address where the Defendant did not reside. The Claimant has behaved unreasonably by negligently or deliberately disregarding the rules whilst pursuing a claim against the Defendant without confirming the correct contact details at the time of the claim.

 

11. The Claimant has also failed to adhere to their own Code of Practice, The BPA Approved Operator Code of Practice (Version 7, January 2018), which states that.

a.      'Before serving a Letter Before Claim and prior to issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the person being written to is the correct party.’ [Ref para 23.1c].

 This requirement for ‘reasonable endeavours’ is expanded on and better explained by the Government in the new Code of Practice which is currently temporarily delayed but states:

b.     If a driver, keeper or hire company does not respond to a notice of parking charge or subsequent correspondence, or a parking charge has not been paid in full, reasonable endeavours - including contacting credit reference agencies to undertake a ‘soft trace’ - must be undertaken by the parking operator and/or its appointed debt recovery agent to establish the correct correspondence details of the driver, keeper or hire company before commencing enforcement action. Where a new address is discovered the notice of parking charge should be re-issued at the original rate but with a further 28 days from service for a response (payment or appeal).’ [Ref Section 10]

 Under CPR 13.2, the court must set aside a judgment entered under part 12 if judgment was wrongly entered. Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside.

Further to the Defendants points in paragraphs 5 to 13, I also refer to the following authorities to support that claim is defective as it was not served to a “last known address”:

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

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

 

12. 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.

Crywolfnever

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.

13. 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.  

a.      Manchester County Court District Judge Iyer in PACE Recovery and Storage Ltd v Lengyel [2017] C7GF6E3R noted in his judgement that the “words “contract” or “agreement” do not appear at all within the sign, which merely refers to the driver “accepting liability for a charge”” and that “the phrase “terms and conditions” are not synonymous with a contract”, (SEE EXHIBIT KF-02). DJ Iyer rightly dismissed the case against the Defendant stating that a contract had not been formed between the two parties.  

 

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   

UNLAWFUL AND EXCESSIVE ADDITIONAL CHARGES

14. The alleged contract is contradictory and confusing as it does not permit parking but imposes a parking charge of £170 per PCN and “contractual costs” is unjustified and punitive, lacking any genuine incurred costs. These fees serve more as a deterrent than compensation for actual losses. The charge is disproportionate and not commercially justifiable, as the original fee of £340 has escalated to £548.86 including statutory interest. This amount does not reflect any commercially justifiable loss to the company or the landowner. According to the Protection of Freedoms Act (POFA), a keeper can only be pursued for the sum stated on the Notice to Keeper.

 

15. Consumer Rights Act 2015 (CRA) Violation: The CRA 2015 prohibits disproportionate or unfair contract terms. These additional charges do not reflect genuine costs and are imposed without transparency. The Court of Appeal in Parking Eye v Beavis (2015) stated that penalty charges need to reflect a “legitimate interest” and should not exceed what is necessary to protect that interest.

 

a.      Relevant Case Law on Unlawful Charges: Recent cases such as One Parking Solution Ltd v Wilshaw and Vehicle Control Services Ltd v Percy have ruled against the application of inflated administrative fees, deeming them unenforceable unless they reflect actual incurred costs. In this case, the Claimant’s fees are disproportionate and fail to comply with CRA principles.

 

16. With the added £208.86 constituting double recovery, the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (SEE EXHIBIT KF-05). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

 

17. After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the

£60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''. 

 

 

18. I respectfully request that the judge reviews the largely similar case (VCS vs Carr - Reference: CA-2024-001179) to be heard at the Court of Appeal this year. (SEE EXHIBIT KF-07)

 

a.       The CoA's initial preliminary finding is that in cases where the D did not see the claim and has good prospects of successful defence, it is only right and in the interests of justice for the court to set aside a CCJ because the D has not had a chance to defend.

 

Below I have highlighted key excerpts from the transcript of VCS vs Carr in which the Judge provides their reasons for granting a second appeal. 

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

b.     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."

 

c.      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" "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."

 

d.     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."

 

e.      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."

 

f.      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."

 

 

DVLA ADDRESS DATA MAY NOT BE RELIABLE  

 19. 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.

 

20. 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.

 

21. There is no safe presumption that a DVLA vehicle address is a valid address where a Defendant can be served. Considering the vehicle with registration number HG11VXL was sold around January 2022.  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').  

 

22. 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 BPA 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.

 

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

 

a.      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."  

 

b.     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).

c.      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).   

 

24. 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

25. 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.

 

26. On the next day (5th December 2024). I spoke to Chris at DCB Legal, Chris had verbally refused the request for application for joint set aside of the default judgement. I wrote an email to DCB Legal offering to jointly apply to set aside the judgment to no avail. (SEE EXHIBIT KF-03)

27. So on 14th December 2024, I have submitted my case in order to set-aside this judgment and fairly present my case (SEE EXHIBIT KF-05)

 

28. Considering all of the above, I 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 I seek the Claimant pay me the cost of this application of £303 and cost of travel for the hearing on an indemnity basis.

 

29. Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).

 

 

CPR 44.11 – FURTHER COSTS

30.  As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. Behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain of regularly reassuring myself of my safety and of the integrity of my credit records.

 

31.  Therefore, I am appending with this bundle a fully detailed costs assessment, (SEE EXHIBIT 08) which covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). 

 

32.  Secondly, given the specificity of the conclusions of Judges Jackson and Hickinbottom, and their direct relevance to this Claim, the Claimant’s business model and that of the Claimant’s legal representation, pursuit of the inflated sum including double recovery in full knowledge of such conclusions is clearly vexatious.

 

 

Statement of truth:  

33. 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 –

 

 

<XX> (Defendant)

 

 

UPON considering the application of the Defendant to set aside the Judgment by default entered on 11th November 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 11th November 2024 (CLAIM No:XX) 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 do pay the Defendants costs of this application of £303 and cost of travel for the hearing on an indemnity basis.

Coupon-mad

Looking good but why have you still got exhibits 4 and 6 listed at the top?

Crywolfnever

I also found the VSCR Vs CARR transcript.

Crywolfnever

Hi Coupon mad 

exhibit 4 is the email I sent to DCBL after my pone conversation with Chris. I have removed their acknowledgement email. Or should I removed it entirely?

Coupon-mad

I would minimise the pages. How many pages?