Question on soft trace

owl86

Hello, I'm currently in the process of trying to set aside a parking related CCJ (N244 submitted, nothing back yet). Lot's of information on here has been extremely useful so thanks to the regular contributors.

A question I have, that I hoped I might get some help on, is whether it is possible for a parking firm / solicitors to do a soft trace without anything showing on my credit report. Where could they get their own data? The electoral roll? 

When I offered a set aside to the claimant's solicitors based on papers going to an old address, and chased this over the phone, I was told "we did a trace". For that reason I did not fully rely on the “they should have done a trace”, argument in my witness statement (and instead pointed to the fact I provided my new address when appealing the PCNs and the claimant wrote to me prior to, and immediately after, the default judgment to demand payment as well as having my email address to check where to serve if they really cared about process). The situation is so ridiculous, that one of the PCNs is for a resident parking in breach of terms (i.e. a resident at my new address).

In any case, I have now reviewed all 3 of my credit reports, and I can see that the only soft traces that have occurred since the PCNs early last year are ones that I know the reason for. Neither the claimant, their solicitors, or debt collectors show up as having run a trace. 

Is there some way they could have done a trace without it showing up on a credit report? And if not, or such a trace would be less robust, should I submit a supplementary witness statement highlighting they did no proper trace as required by the BPA code?

Thanks 

DullGreyGuy

Yes, you can use the open register of the electoral roll, one way to do that is via the CRAs but other firms offer it too like 192.com and LexisNexis

owl86

Thanks - I have opted out of the open register, the last address I see on 192 is from 2010 and not either of the two addresses in question. 

DullGreyGuy

LexisNexis is a black box, they dont divulge all their data sources, given their pricing I doubt a parking company or their pet solicitors would use them but if they exist then inevitably other operators will which are priced better for those wanting to make low volumes of enquiries compared to insurance companies checking hundreds of thousands of people. 

owl86

dcbl actually claim the ability to do it inhouse on their website, though I can't see what they would have to go off. 

In any case, is it evidential that they didn't take reasonable steps if the main CRAs show no search? 

Coupon-mad

No.

A soft trace doesn't show AFAIK but even if I'm wrong about that, they'd have to produce the full result listing from the CRA. in order to show that they didn't know about your new address.

I am not for a minute suggesting you tell them that, nor ask for it! Quite the opposite. You want the Judge to see that the C has produced no evidence of bothering to comply with the Code of Practice and CPRs. Unreasonable conduct. They caused a CCJ and must pay your costs in full.

And anyway, the very fact you didn't receive the claim form means the CCJ must be set aside (CPR 13.2). MUST. There is no court discretion on that, in these circumstances.

Have you found and included VCS v Carr, initial findings from the Court of Appeal?

As per the CCJ set aside threads by:

@icy_fox

@BrightonRock123

owl86

Thanks! 
I’ve submitted a subject access request across the parking company, their solicitors and debt collectors (for all information) as I am very sceptical they did a trace but I want to know exactly what they have before I state it. 

My witness statement primarily relies on that they wrote to me multiple times before and after the claim at my new/current address (included as exhibits), which I provided when appealing the PCNs, and they had my other contact details. Also I highlight that the same vehicle remains parked outside my house where Baysentry still operate so they have no reason to believe I live elsewhere. I cite unreasonable conduct for not making the effort to properly check my address, and that they didn’t provide consent for set aside once I highlighted the situation. I also point out it is mandatory set aside and dismissal if 4 months have elapsed (CCJ was at the start of October). 

In retrospect I can see VCS vs Carr as very relevant, particularly the comments that the defendant was highlighting they are a resident so the claimant should have questioned why they used a different address (in my case I have a letter from Baysentry saying my appeal is declined because I am a resident, and this is addressed to my current address). 

To provide some context, I have a freehold property with rights to an allocated space, and there are visitor spaces for use by freeholders’ visitors (these are rights included with the freehold). The land on which parking is located is owned by the original developer. I was asked by contractors working for the developer to move my car to a visitor space to allow landscaping works that would last a few days. I had to leave for work away from home the same day, so left my car until the end of the week in a visitor space - in the meantime I received two PCNs (resident not allowed in visitor space). The management company were no help, but I suspect they have a commercial incentive (like Baysentry) to ticket residents. They obviously ignored that I moved my car de facto at the request of the freeholder. I actually think they do not have the legal right to operate commercial parking in residents’ or visitor spaces, but that is an issue for another day. 

Can I submit further documentation to the court? Depending on what the SAR shows (if no trace) I may wish to state they did no trace as they should have. Also would be good to submit VCS Carr if I can include that?

thanks 

Coupon-mad

Certainly you need VCS v Carr. 

The point is, the claim form wasn't received so the court has no discretion. The CCJ must be set aside.

Send VCS v Carr attached to a skeleton argument the week before the hearing using the same words as used by icy_fox.  And also attach your costs assessment (and a word doc: Draft Order if none was provided yet). 

I also point out it is mandatory set aside and dismissal if 4 months have elapsed (CCJ was at the start of October).

The 4 months is counted from the date of issue of the Claim Form.

Johnersh

Let's not make this unnecessarily complicated.

1. The point is that there was a nominated address for service. The Claimant cannot rely on a last known address (the provisions of CPR 6.9) where the defendant has, in accordance with CPR 6.8(a) has confirmed in writing his residential address and that he should be served there.

2. CPR 6.9 (the provisions on which the claimant likely relies) states clearly that it is the rule where the defendant has not provided an address for service. [My emphasis].

3. Prior to defining the usual address for service, CPR 6.9 states this rule applies where 'rule 6.8...do(es) not apply'

4. It follows that the Claimant could do 10,000 credit checks, but if as a matter of fact (a) the Defendant lived at the address he said and (b) can prove that he told them to serve papers there, then the rules only permit service there.

There are numerous cases about nominated addresses for service (usually a failure to serve on the nominated solicitors). The effect is the same. It's not good service.

If it's past 4 months and the claim form has never been served it expires. If it's within 6 years of the event, the claimant can issue a new claim form, so the DJ is free to apply the rule without any objections that it denies justice to C.

If it were my case, I'd be saying the claim form has not been served within its period of validity. If C wants to start again, they can simply by issuing again. The costs of doing so and the set aside all derive from their failure to follow basic procedure, so there's a need to recover those.

Castle

Coupon-mad said:

No.

A soft trace doesn't show AFAIK but even if I'm wrong about that, they'd have to produce the full result listing from the CRA. in order to show that they didn't know about your new address.

Whilst it doesn't show on a credit report, the CRA would have to disclose it in response to a SAR.

Grizebeck

Castle said:

Coupon-mad said:

No.

A soft trace doesn't show AFAIK but even if I'm wrong about that, they'd have to produce the full result listing from the CRA. in order to show that they didn't know about your new address.

Whilst it doesn't show on a credit report, the CRA would have to disclose it in response to a SAR.

Soft searches show from BW legal