Question on soft trace

Castle

owl86 said:

I had my set aside hearing earlier this week. The judge relied on non-compliance with 6.9 in turn allowing the claim to be struck out under 7.5. There was no discussion of parking. 

DCB Legal had submitted a witness statement. It wasn’t really a witness statement, just a third party inversion of my account of events and some terrible legal argument - even citing cases that I read as favouring set asides. No evidence of a trace was produced, leaving their (external) legal representative in a tough spot. I was very impressed with the proceedings, it was all over in about 10 minutes. 

Have you had a formal response to your SAR from the Solicitors yet?

owl86

Castle said:

owl86 said:

I had my set aside hearing earlier this week. The judge relied on non-compliance with 6.9 in turn allowing the claim to be struck out under 7.5. There was no discussion of parking. 

DCB Legal had submitted a witness statement. It wasn’t really a witness statement, just a third party inversion of my account of events and some terrible legal argument - even citing cases that I read as favouring set asides. No evidence of a trace was produced, leaving their (external) legal representative in a tough spot. I was very impressed with the proceedings, it was all over in about 10 minutes. 

Have you had a formal response to your SAR from the Solicitors yet?

I conducted a SAR on Baysentry, DCB Legal, and DCBL. The result from Baysentry was conclusive enough, with my current (correct) address appearing multiple times, including in an appeal I wrote, with no mention of my old address, and I used this SAR in evidence. The SARs provided by the two DCBs were minimal in terms of content, basically name, primary address, second address, email. Both of the DCBs had my correct address as my primary address, and the older address as a secondary address. I have now looked back and the DCB Legal SAR actually states my correct address was confirmed by a trace. No actual trace document was provided in the SAR. 

owl86

Coupon-mad said:

Yeehah! 

ANOTHER ONE BITES THE DUST!

You got a huge amount of costs - around £825! Did you use a solicitor or just claim a lot for printing and time off work? Which court please?

They will detest that Order.  Hopefully they won't waste their time in trying to appeal the decision. Nicely done.

I did not have a solicitor, but I submitted a skeleton that was 50% about unreasonable behaviour citing Dammerman and I also provided a schedule of my activities - half the cost is the fee and the day off work, the rest is the litigant in person charge. The true amount of time I spent on this would be 3 or 4 times more than the amount awarded but it was still nice to have the judge (in York) recognise how ridiculous the position/conduct of the parking firm was - particularly that they knew my address without question (which is different to most of the CCJ set aside cases I've seen on here). 

Unfortunately, although this is a win, the number of residents paying parking charges for minor infractions where I live means I doubt it really changes the economics of their business.       

owl86

Nellymoser said:

Great to read about your court win. 🥳

Have you seen/signed petitions asking for Govt action to protect motorists from PP operators unfair practices.

https://forums.moneysavingexpert.com/discussion/6595460/parking-petitions-x-4-on-uk-parliament-petitions-website

now signed

owl86

I've had a request to share my skeleton argument and costs assessment, so I'm posting below. Some caveats - 1/ I'm not sure whether this is truly a skeleton (I just wrote down all the points I wanted to make, and didn't cite much case law), 2/ my case is somewhat exceptional in that I have a resident parking contract and also vast evidence my true current address was known, and 3/ DCB Legal really dug their heals in on saying they complied with CPR 6.9 but didn't produce their trace in evidence. On costs, I was told by the judge my assessment was too high and it wasn't fully awarded, but it is really an underestimate when getting a CCJ set aside is so important and you have never dealt with anything like this before. I spent a lot of time reading about the case law and CPRs, plus writing all the submissions required (I was ordered to write a defence and witness statement). 

I was still very happy with what I was awarded as I've seen plenty of examples on here where people get nothing which is a complete injustice. One interesting comment in the hearing - the judge was willing to find unreasonable behaviour and award costs as such, but the costs award was also not strictly bound by the rules of small claims as the case was unallocated. A similar comment is made in the VCS v Carr video, when the judge asks which track the case is allocated to (not allocated). If you are dealing with a CCJ set aside due to default judgment, the case is unallocated and the judge is not entirely limited to applying small claims costs rules, but may do so (CPR 46.13 (3)). 

SKELETON ARGUMENT of XXXXXXXXXXX

1. Introduction

1.1 This skeleton argument is submitted in support of the Defendant's application to set aside the default judgment dated 07/10/2024, on the basis that the claim was not validly served, necessitating a mandatory set aside under CPR 13.2. 

1.2 In the alternate, a set aside can be granted under CPR 13.3 (a), as the Defendant has primacy of contract with respect to parking at XXXXX and was also parking as instructed by the site freeholder to facilitate landscaping works.   

1.3 The Claimant has repeatedly demonstrated behaviour that defies reasonable explanation in its conduct with respect to this claim, and the Defendant asks the Court for a finding of unreasonable behaviour and the awarding of costs under CPR 27.14(2)(g). 

2. Invalid service

2.1 A mandatory set aside is required under CPR 13.2 as the claim was not validly served by the Claimant. In requesting a default judgment, the Claimant has failed to comply with CPR12.3 (1) (b) as the relevant time for the Defendant to file an acknowledgement of service cannot have expired if valid service did not occur.   

2.2 The Claimant used a prior residential address of the Defendant (XXXXX) for invalid service of the claim form, despite the fact that the Defendant provided and confirmed his current residential address (XXXX) to the Claimant, and there is unequivocal evidence that his current address was known to the Claimant (as shown by Exhibits 3, 4, 5).

2.3 A Subject Access Request conducted on the Claimant by the Defendant after the discovery of the CCJ further emphasises that his current residential address was fully known to the Claimant, with the Defendant’s address appearing a total of eight times in the document provided by the Claimant (Exhibit 12 on pages 31-37).

2.4 The Claimant has failed to adhere to CPR 6.8. In the appeal submitted by the Defendant to the Claimant (Exhibit 12, page 37), the Defendant provided his current residential address and also stated that he will dispute the parking charges as far as the court system. The only reasonable interpretation is that the address provided by the Defendant at this time was provided for use in any subsequent court proceedings, and under CPR 6.8 the Claimant is compelled to use this address. 

2.5 As the Defendant provided an address (CPR 6.8), the Claimant cannot rely upon CPR 6.9. Even if CPR 6.9 were to apply, the Claimant has still failed to adhere to the Civil Procedure Rules. Under CPR 6.9, service must be to the Defendant’s “usual or last known address” – i.e. XXXXX, which remains the Defendant’s current address.   

2.6 The Claimant has repeatedly stated to the Defendant that an old address was used for service of the claim on the basis that a “trace” that was conducted prior to the claim being brought. Under 6.9 (3), if a claimant has reason to believe that a defendant no longer resides at the last known address, reasonable steps must be taken to ascertain the defendant’s current address. The Claimant had no reason to believe the Defendant had moved; the Defendant’s current address remains XXXXX. Furthermore, the Claimant could have used the email address provided by the Defendant to check the residential address for service, rather than unilaterally choose a different address to that provided by the Defendant without any reasonable explanation. 

2.7 It would set an undesirable precedent if a private parking company were allowed to disregard a confirmed last known address (that also remains a current address) and instead use an erroneous “trace” to identify an older address that can then be considered a new “last known” address for valid service. Such an outcome is not consistent with CPR 6.9 or the overriding objective. If claims could be validly served in this manner, it would allow private parking firms to routinely identify old addresses to serve claims and obtain default judgments, that could then be used to extort monies from defendants who would be unaware of proceedings but also unable to argue defective service in set aside applications.   

2.8 As the Claim was not served within four months, it must be dismissed. Under CPR 7.5, the claim form must be served within 4 months of its date of issue. No extension was requested.

3. Spurious Claim

3.1 In the alternate, a set aside should be granted under CPR 13.3 (a), as the Defendant has a real prospect of successfully defending the claim. 

3.2 The claim is entirely without merit. The Defendant and his fiancé, with whom he shares the vehicle in question (XXXXX), both have pre-existing contracts that provide for the parking of a motor vehicle at the XXXXXX. The Defendant benefits from an allocated space and the right to use visitor spaces, under a contract to which the Claimant is not party. His fiancé also enjoys this right under her leasehold contract.

3.3 The Defendant moved his vehicle from his allocated space to a visitor space, for the week of 27 February 2023, at the direction of the landowner, XXXXX. The Defendant therefore had landowner authority, through existing contracts and an additional verbal contract, to park in the manner he did. 

3.4 In contrast, the Claimant has failed to demonstrate any authority to operate, and why or how the Defendant would have entered into a separate parking contract with the Claimant. No Claimant signage was even present in the vicinity of the parking event, preventing contract formation through conduct, and the claimed terms are an attempt to override an existing contract to which the Claimant is not party. The Claimant has also sought double recovery through the addition of undefined and entirely spurious “damages”. 

4. Unreasonable Behaviour 

4.1 The Defendant asks that the conduct of the Claimant be found as unreasonable, and that costs awarded as such. 

4.2 The Court of Appeal provided guidance on the meaning of unreasonable behaviour in relation to cost applications in cases allocated to the Small Claims Track, in Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269. Relying on Ridehalgh v Horsefield [1994] Ch 205, the Court of Appeal found that unreasonable behaviour is conduct that lacks a reasonable explanation:

 “…conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting in a practitioner's judgment, but it is not unreasonable,” 

4.3 Additionally, the Court of Appeal noted that such cost awards should not risk too easily deterring litigants from making use of the Small Claims Track:

“The only other thing we can usefully add is that it would be unfortunate if litigants were too easily deterred from using the Small Claims Track by the risk of being held to have behaved unreasonably and thus rendering themselves liable for costs.”

4.4 In this case (XXXXXXX), the Claimant has repeatedly behaved in a manner that defies any reasonable explanation; the case cannot be described as “optimistic” and is in fact entirely spurious with zero basis. 

4.5 The Claimant is also responsible for the manner in which this Claim has been brought, and their choice of legal representation in the form of DCB Legal Ltd. The Particulars of Claim are entirely inadequate, and the merits of the Claimant’s claim have clearly undergone no proper review (in addition to subsequent invalid service of the claim form). On its website, DCB Legal boasts of being one of the top three users of the County Court system and that it is responsible for “hundreds of thousands of claims each year”. Such volumes are achieved despite the firm employing only four solicitors according to the Law Society. This business model clearly relies upon the spamming of the MCOL system with claims, regardless of their merit, to obtain default judgments when defences are not filed, rather than actually contesting claims. As such, it should be considered that there is no risk of genuine litigants being too easily deterred from using the Small Claims Track, if full costs were to be awarded in this case, which had zero merit and appears to have undergone no review. 

4.6 The behaviour of the Claimant was unreasonable on the following occasions:

4.6.1 Imposing parking charges on a resident displaying a resident’s permit, which is displayed as a courtesy to indicate a pre-existing parking contract is in effect. 

4.6.2 Imposing parking charges under terms that override the provisions of residents’ freehold and leasehold contracts (which allow, and do not forbid, the use of visitor parking spaces by residents and do not require any form of vehicle registration).

4.6.3 Acting in breach of the British Parking Association Code of Practice, which requires that a parking firm has landowner authority to impose parking charges. This cannot have been granted, and was specifically absent in this case as the vehicle was parked as requested by the freeholder in order to allow landscaping works. 

4.6.4 Ignoring the direction of the development manager, XXXXX, to implement a whitelist during the week of 27 February 2023 covering the Claimant’s vehicle. 

4.6.5 Disregarding the note left by the Defendant in his windscreen indicating the car had been moved to allow site completion/landscaping activities and, despite photographing this note, not enquiring to the site freeholder whether such parking arrangements had been agreed with the Defendant.

4.6.6 Rejecting the Defendant’s appeal on the basis that “residents are not authorised to park in visitor spaces”; an attempt to override existing contracts that has no basis. 

4.6.7 Bringing a claim stating the vehicle is “non-registered”, despite the Claimant acknowledging the Defendant displayed a residents’ permit, and when no form of registration is actually required of residents. 

4.6.8 Bringing a claim wholly without merit or contractual basis and wasting the time of the Court and the Defendant, despite the Claimant being part of a large corporation that should have adequate expertise for competent conduct in this area (Town Centre Securities PLC, the Claimant’s parent, had total assets of £292million as of 30 June 2024, and in FY24 its operating profit from parking activities was £3.9mn). 

4.6.9 Adding spurious, undefined, additional charges to the two £100 parking charges and sending regular threatening letters to the Defendant.

4.6.10 Not taking reasonable care or steps to ensure service of the claim at the Defendant’s current address, despite full knowledge of the correct address.

4.6.11 Using completely inadequate, inaccurate and boilerplate, particulars of claim.   

4.6.12 Dismissing the Defendant’s request that the Claimant provide a consent order in a timely manner to allow an application with consent, given invalid service, resulting in a full application being necessary at higher cost to the Defendant and the Court.

4.6.13 Subsequently arguing that service was valid due to a trace returning an old address. A competently (or honestly) conducted trace would have actually confirmed the Defendant’s current address, as per the Defendant’s credit records.   

4.6.14 The Claimant did not provide a witness statement by 3 February 2025, as directed on 9 January 2025 by District Judge XXXXX, and by default does not dispute the Defendant’s witness statement which alleges unreasonable behaviour.   



4.7 The repeated failure of the Claimant to act in a manner that has a reasonable explanation necessitates a finding of unreasonable behaviour. 

4.8 In addition to standard witness costs, the Defendant requests costs allowable under CPR 27.14(2)(g) and in accordance with litigant in person costs as per CPR 46.5(4)(b). A costs assessment is provided to the Court by the Defendant (page 6).  

Coupon-mad

Very good costs assessment sheet!

And this is something we should all be telling people who are doing CCJ set aside cases. Easily overlooked fact for all default CCJs :

"One interesting comment in the hearing - the judge was willing to find unreasonable behaviour and award costs as such, but the costs award was also not strictly bound by the rules of small claims as the case was unallocated. A similar comment is made in the VCS v Carr video, when the judge asks which track the case is allocated to (not allocated). If you are dealing with a CCJ set aside due to default judgment, the case is unallocated and the judge is not entirely limited to applying small claims costs rules, but may do so (CPR 44.4 (3))."