Question on soft trace

owl86

Thanks for all the useful comments above. It is reassuring that if I have provided an address, they cannot claim to have run a trace that then excuses that they served an old address. I provided the address as part of the appeal process and it surely should be implicit that this is my address for service. 

I expect it will be sometime before the hearing (no date yet), but I will be back as I need to submit a draft order, costs schedule and potentially a skeleton argument. Thanks 

owl86

An update - the N244 application has now been transferred to a local court and documentation has been passed (via the court) to the claimant. Their solicitors have resultantly got in touch to offer a consent order, on the basis that they complied with CPR 6.9 but there is some other reason to set aside (they recognise my address is different to the one they served, and that I am a resident). Their proposed consent order makes no order as to costs.

I rejected this on the basis that I provided my address and so they did not comply with CPR 6.8, and also on the basis that their response had been slow which means I have already paid for a full hearing so the claimant should pay this cost (I also stated this would avoid further costs to the claimant such as hearing attendance costs). 

They have refused, and argue that I did not explicitly state I wanted to be served at my current address (which I provided when appealing last year). While it is true I did not write explicitly that I would like to be served at this address, there is surely no other reason for which I would have provided it. They set a deadline to accept the consent order unamended. 

So I will wait for my hearing and try to get costs. With regards to asserting the claimant's unreasonable behaviour and so claiming litigant in person costs, does anybody have any cases I could cite that would be useful. I have Reed vs Boswell 2022. The reasons to push for these costs are 1/ I was asked by the freeholder to move my car to a visitor space (I have in writing that the managing agent knew this and informed the parking company), 2/ residents are actually allowed to park in visitor spaces under the rights granted with freeholds/leaseholds but the parking firm has made up their own rules forbidding this (they cannot have freeholder authority to do this, so breach BPA code), 3/ delayed response to request for set aside requiring a fuller legal response from myself, 4/ failure to comply with CPRs (particularly 6.8, or even 6.9 given as they had my email address), 5/ minimal particulars of claim.  

Thanks

Coupon-mad

Dammerman v Lanyon Bowdler is the lead authority about costs for unreasonableness.  You have to paint a picture of 'conduct that permits of no reasonable explanation'. 

This is a complete joke and another good reason to say they have acted wholly unreasonably.  This reply to you is astonishing from a law firm and IMHO certainly 'permits of no reasonable explanation'!:

"They have refused, and argue that I did not explicitly state I wanted to be served at my current address (which I provided when appealing last year). While it is true I did not write explicitly that I would like to be served at this address, there is surely no other reason for which I would have provided it."

I'd like to see @Johnersh's take on that!

Johnersh

My take remains the same. 

It's true an address for service has a specific meaning (esp where you nominate a lawyer as your letterbox) but to all intents and purposes it's the same: Either the o/p provided an address for service (in which case they needed to serve there - CPR 6.8) or the o/p was updating his usual residential address (in which case they still needed to serve there, since the "new address" is now the last known address under CPR 6.9). The o/p will easily be able to prove his residential address and, presumably has retained the pre-action correspondence.

They cannot rely on a historical DVLA record, which it seems the most likely culprit here for the wrong address being used. I say that because they have no reason to cease using the given address (which they previously corresponded to and received responses from). The problem for them is that if the o/p said "I've moved" or "that's an old address" or similar they were on notice that the former address was not a usual residential address. CPR 6.9 can't save them, as I read it, if the paper trail is as described.

Finally, as any lawyer knows, if you're really stuck the court will seal more than one claim form. You can then serve copies on both addresses. No one made them use MCOL or to choose an address.

Johnersh

Is this one where they are proposing a consent order that says: "Upon the defendant accepting that there was valid service" or similar?

If so *and provided that the paperwork is as clear as the o/p suggests* I think it very dark that the PPC is proposing consent to set asides adopting wording that suggests there is good service when they must know that is not the case or, at best, questionable. Indeed, I don't see how they can comfortably file that at Court - arguably it is misleading to the Court. 

owl86

Thanks - the email sent by solicitors states: 

"WITHOUT PREJUDICE SAVE AS TO COSTS

We act for the Claimant and write in response to your recent correspondence and Application.

Upon review of your recent correspondence and contents of your Application we can confirm that our Client is agreeable to setting Judgment aside.

Please note that whilst you provided our Client with an updated address, in compliance with CPR 6.9 a pre-issue trace is ran prior to issuing legal proceedings to ensure that Court documentation is issued to what is believed to be your last known address.

The trace provided the address of "XXXXX" as your most likely address and as such legal proceedings were issued to this address.

Upon review of your correspondence we accept that you did not reside at the above address at the time the Claim Form was issued and therefore did not have the opportunity to respond to the Claim.

--- Then some reasons why the parking charges are still payable (my appeal was rejected etc)---

Despite this, our Client is willing to dismiss the Claim on the basis that you did not have the opportunity to respond to the Claim and that you were a resident on site.

Please find attached a proposed Consent Order. Should you be agreeable to the terms of the Order, please sign and return this promptly."

And the content of the consent order: 

Before an Officer of the Court UPON the Claimant and the Defendant having agreed to the terms of this Order;

 AND UPON the Claim Form being served to what was believed to be the Defendant’s last known address pursuant to CPR 6.9; 

 AND UPON the Defendant informing the Claimant that they no longer reside at the address at which the Claim Form was served and as such could not respond to the Claim; 

 AND UPON the Claimant recognising that the Defendant was a resident on the relevant Land; 

 AND UPON the parties agreeing that, in view of the above, there is some other good reason for Judgment to be set aside pursuant to CPR 13.3; 

 IT IS ORDERED BY CONSENT THAT:- 1. The Judgment entered herein on the 07/10/2024 be and is hereby set aside; 2. It is recorded that a request for cancellation of the judgment has been sent to Registry Trust Limited; 3. The Claim be dismissed; 4. There be no order as to costs. 

I rejected the above due to the final point on costs. I have pre-action letters, post-action letters, and a SAR all showing my current address was known to the claimant.  As far as I understand, to rely on a trace under 6.9 (3) they would need to have a reason to believe I had moved (which they do not, and have not mentioned), and that trace must identify my current address not a new "last known" address. Also a reasonable step would have been to email me for address confirmation, in contrast to relying on a made up trace.  

 

owl86

And a subsequent reply when I asked for the N244 cost to be awarded: 

"CPR 6.8 did not apply in this circumstance and you had not outlined an address you wish to be used for the service of documents, the Claimant ran a pre-issue trace pursuant to CPR 6.9.

The correct procedure in issuing the Claim has been followed.

Our Client now recognises that despite all efforts for correspondence to be served to what was believed to be your last known address, you were not in receipt of the Claim Form.

It is on this basis that our Clients offer was made."

Coupon-mad

Dear Sirs,

You are having a laugh if you think I will accept 'no order as to costs' and foot the court fee bill.

You/your client will be ordered to pay all my attendance and other costs on the indemnity basis in the end, including the higher £303 fee for an application requiring a hearing.

As well as drawing your conduct to the attention of the Judge when it comes to the matter of costs, I will also report your firm to the SRA.

You must consider this email a formal complaint and pass it to a real solicitor, not a paralegal.

This is the position:

It is disingenuous and wholly unreasonable conduct in this litigation (and I believe, a clear breach of the SRA 'STaRs') that:

1. The claim form was improperly served elsewhere, when your client already knew my address;

2.  You now compound your conduct by proposing a form of consent to set aside the CCJ adopting wording that suggests there is good service when you/your client must know that is not the case or, at best, questionable. Indeed, I don't see how your firm could comfortably file that at Court - arguably it is misleading to the Court.

I will give you one more week (from this email date) to see sense and set aside the CCJ at your expense, without a hearing but without the misleading untruth that you are pushing me to sign.

If you fail to agree to this I will proceed as above and my case will also be raised with the relevant Government Ministerial team as a worst practice 'case study' example by an interested member of the MHCLG Steering Group.

yours faithfully,

Your name

owl86

My hearing is still quite a while away, but one positive is that no witness statement has been provided by the parking company as ordered by the court (by a set deadline), which means whether they are allowed to give any evidence at the hearing will be solely at the judge's discretion. I had to provide both a WS and defence to the court, and plan to submit a skeleton along with a costs schedule closer to the time. I suspect the parking company will try to send in a no-costs consent so I will watch out for that. 

In the meantime, I have complained to the managing agent for the site and made a demand for compensation, which was denied. They have allowed the parking firm to act in breach of residents' existing contractual rights, and also failed to intervene in my situation on numerous occasions even when requested to do so by the developer (the site freeholder). Their defence is they agreed the new terms that the parking company enforces with some prior members of the residents' association (i.e. they think they can bypass requirements of the Landlord and Tenants Act), and the situation would not have escalated if I had "just paid the fines".

So, I plan to take legal action against the managing agent. I wondered if anybody has some advice on potential angles to explore. My current thinking is 1/ negligent conduct in the administration of the site causing non-pecuniary damages, 2/ breach of contract, 3/ tort by way of private nuisance (harassing letters from DCBL, spurious court proceedings by a parking firm that is not party to my pre-existing parking contract/rights, 4/ allowing a commercial parking firm to believe they had reasonable cause to access my DVLA data, when they actually did not and cannot have freeholder permission to enforce the charges, causing a data breach. I know this is perhaps one-step removed from dealing with parking charges, but any suggestions/advice I can explore further would be appreciated! Also, as the parking company is contracted by the management company (a shell company controlled by the managing agent), do I have to take both parties (MA and MC) to court as jointly liable? Ideally I would like the managing agent to pay any compensation, rather than other residents through the management company, but they have stated the parking company is contracted by the management company. Thanks

Coupon-mad

owl86 said:

My hearing is still quite a while away, but one positive is that no witness statement has been provided by the parking company as ordered by the court (by a set deadline), which means whether they are allowed to give any evidence at the hearing will be solely at the judge's discretion. I had to provide both a WS and defence to the court, and plan to submit a skeleton along with a costs schedule closer to the time. I suspect the parking company will try to send in a no-costs consent so I will watch out for that. 

In the meantime, I have complained to the managing agent for the site and made a demand for compensation, which was denied. They have allowed the parking firm to act in breach of residents' existing contractual rights, and also failed to intervene in my situation on numerous occasions even when requested to do so by the developer (the site freeholder). Their defence is they agreed the new terms that the parking company enforces with some prior members of the residents' association (i.e. they think they can bypass requirements of the Landlord and Tenants Act), and the situation would not have escalated if I had "just paid the fines".

So, I plan to take legal action against the managing agent. I wondered if anybody has some advice on potential angles to explore. My current thinking is 1/ negligent conduct in the administration of the site causing non-pecuniary damages, 2/ breach of contract, 3/ tort by way of private nuisance (harassing letters from DCBL, spurious court proceedings by a parking firm that is not party to my pre-existing parking contract/rights, 4/ allowing a commercial parking firm to believe they had reasonable cause to access my DVLA data, when they actually did not and cannot have freeholder permission to enforce the charges, causing a data breach. I know this is perhaps one-step removed from dealing with parking charges, but any suggestions/advice I can explore further would be appreciated! Also, as the parking company is contracted by the management company (a shell company controlled by the managing agent), do I have to take both parties (MA and MC) to court as jointly liable? Ideally I would like the managing agent to pay any compensation, rather than other residents through the management company, but they have stated the parking company is contracted by the management company. Thanks

Oooh now somebody has done this but I can't recall which poster. @pinkelephant12  maybe?