Defence after CCJ set aside.

Foresthare

Hello again,

I have my date in court this week and I have received a letter and draft order from DCB Ltd. They will not be attending in person. 

The letter states:

Dear Sirs

Uk Parking Control Limited

-v XXXXXX

Claim Number: XXXXX

We write in relation to the above matter wherein we are instructed to act on behalf of the

Claimant.

Within the Defendant’s Application they have not provided any justification as to why they did

not respond to the Claim Form. It is respectfully submitted that the Claim Form was correctly

served at the Defendant’s last known address pursuant to CPR 6.9. Pursuant to CPR 6.9(3),

the Claimant took all reasonable steps to ascertain the Defendant’s current address by

conducting a pre-issue trace. The trace result provided the Claimant with the knowledge of

the Defendant’s address, where the Claim Form was then subsequently served. As the

Defendant failed to respond to the Claim Form, Judgment in default was obtained against

them.

Upon reviewing the Defendant’s Application, the Defendant alleges that they did not receive

the Claim Form until after the deadline due to postal delays in their local area. Respectfully,

no evidence of the same has previously been provided to the Claimant or the Claimant’s

representatives.

In view of the above, please find enclosed the Claimant’s proposed Draft Order.

We would be grateful if the Court would place the attached Draft Order on the Court file in

readiness for the Hearing listed on XXXX.

In the event that the Defendant also seeks to recover the costs of making the Application to

set the Judgment aside, it is respectfully submitted that the Claimant has not acted

unreasonably. The Claimant has therefore followed the correct process and had no reason

to believe that the Defendant received the Claim Form late prior or during proceedings. It

also should be noted the Claimant is not responsible for the issuing of the Claim Form in the

post nor is the Claimant liable for postal delays.

We respectfully excuse our Client’s attendance at the hearing on XXXXXX. This is

meant with no disrespect to the Court, but is a decision made to save incurring any further

costs.

Notwithstanding the above, the Claimant requests an Order pursuant to the enclosed Draft

Order.

Yours faithfully

DCB Legal Ltd

 

DRAFT ORDER

Before District Judge ___________________________

UPON considering the Defendant’s application dated XXXXXX, it is hereby ordered as follows:-

AND UPON the Claimant accepting that, although the Claim was correctly served at the Defendant’s last

known address pursuant to CPR 6.9, the Defendant did not receive the Claim Form until after the

Judgment had been entered;

AND UPON the Defendant being unable to respond to the Claim Form within the timeframe due to postal

delays;

AND UPON the Claimant accepting that, in view of the above, there is some other good reason for

Judgment to be set aside pursuant to CPR 13.3;

i. The Judgment entered herein on the XXXXXX be and is hereby set aside.

ii. It is recorded that a request for cancellation of the judgment has been sent to Registry Trust

Limited.

iii. The matter be reallocated to the Small Claims Track and the Defendant be ordered to file a

response within 14 days.

iv. In default of paragraph iii, the Claimant be at liberty to enter Judgment.

v. There be no order as to costs.

Given that DCB have agreed to set aside - presumably the hearing will agree the set aside and I will have 14 days to respond to the small claims track? 

Is there any possibility of receiving my £303 or costs back at this hearing? 

As an aside, I did provide evidence to DCB of postal delays. 

Coupon-mad

Is there any possibility of receiving my £303 or costs back at this hearing? 

Nope.

Not in your case (claim was addressed correctly and the delay was either at the CNBC or the Postal Service or a combo of both). You can only pursue those complaints with those services, to hope to recoup the fee cost.

You should email your agreement to the C's Draft order today, and say you will attend the hearing on DATE unless the court advises by return that it has been vacated and the Draft Order accepted by a Judge to save to hearing cost/time. 

Foresthare

Could I ask for reimbursement on the basis that I gave them over 14 days to agree to the consent to set aside? 

troublemaker22

Foresthare said:

Could I ask for reimbursement on the basis that I gave them over 14 days to agree to the consent to set aside? 

Reasonable minds can differ, but it’s certainly worth asking for your costs because you gave them the opportunity to agree to a consent order without a hearing at a court fee of £119 which they ignored but which they have now belatedly consented to after forcing you to fork out £303 for a hearing. You can also ask for £19 per hour for your time dealing with the case including travel and attendance time at the hearing (plus travel costs) because no hearing would have been necessary if they had agreed to the consent order in the first place. Put it all in a schedule of costs emailed to the court and the Claimant as soon as possible. 

You should print and bring to court the correspondence proving your point. 

The judge might refuse to award costs, but if you don’t ask, you can’t get. 

Coupon-mad

Good points. If you decide not to accept the consent order, get your costs assessment in by email this week and go to the hearing and say wot he said!

troublemaker22

Coupon-mad said:

Good points. If you decide not to accept the consent order, get your costs assessment in by email this week and go to the hearing and say wot he said!

So basically go with the proposed consent order but asking the court to reject paragraph v and instead order the Claimant to pay the Defendant's costs summarily assessed at £[xxxxxxx] within 14 days.

The figure to insert in the brackets is £303 plus your time at £19 per hour plus travel costs 

Coupon-mad

troublemaker22 said:

Foresthare said:

Could I ask for reimbursement on the basis that I gave them over 14 days to agree to the consent to set aside? 

Reasonable minds can differ, but it’s certainly worth asking for your costs because you gave them the opportunity to agree to a consent order without a hearing at a court fee of £119 which they ignored but which they have now belatedly consented to after forcing you to fork out £303 for a hearing. You can also ask for £19 per hour for your time dealing with the case including travel and attendance time at the hearing (plus travel costs) because no hearing would have been necessary if they had agreed to the consent order in the first place. Put it all in a schedule of costs emailed to the court and the Claimant as soon as possible. 

You should print and bring to court the correspondence proving your point. 

The judge might refuse to award costs, but if you don’t ask, you can’t get. 

Yep: say the above and take the proof with you to show what they did. Call it out as unreasonable conduct and see if the judge agrees. 

Car1980

What are the particulars of claim?
You have another route of showing unreasonableness, or at least bringing it up verbally, if they have have used their usual boilerplate brevity.

ie. even if you had received their claim you would immediately claim it should be struck out anyway because the Claimant's bulk litigator churn out the same particulars that amount to a single line. 

Read the first section of the default defence and perhaps even bring a pile of printouts from the judgments PDF.

You have the luxury of the floor because DCB Legal can't be arsed attending. You've paid
for the hour 🤣

Foresthare

I attended court. 

The judge wasn't impressed that they didn't attend. He said that is for him to decide not them. 

He said that the judgment was proper and they have been reasonable. 

He agreed that the postal delays is a good reason to set aside. The fact they have agreed to a mutual set aside (albeit after my deadline) meant this was a foregone conclusion. 

I showed him the emails which demonstrated I attempted to agree a mutual set aside with a reasonable amount of time. He said that their response the day after I had paid for a court date showed there was no suggestion they would have agreed a consent earlier.

He said that they are not liable for the lower value of £119 however he will award the difference between the lower amount £119 and the higher amount that I paid of £303. Therefore, he will order them to pay me £184. 

He said they are not liable for any more of my costs. 

He will ask them to reinstate the claim as before and for me to provide a defence within 28 days.

So it was a mixed outcome but definitely worth attending court for. 

Thank you for all your help. 

I will review the reinstated claim when I receive it (hopefully without more postal delays) but at this point I'm tempted to offer to settle for the £184. 

Foresthare

Car1980 said:

What are the particulars of claim?

Hi Car1980,

The particulars are the claim are: 

June 2024 - parked in car park - free for 3 hours but must display ticket - after 3 hours must pay. I have no proof that I displayed a ticket - I can't remember and it wouldn't be on my bank statement as it's £0. There are no issues with the signage in the car park, lots of signs everywhere saying "first 3 hours free only if ticket displayed". I've emailed the restaurant I ate at twice now for help but no response. 

December 2024 - I received the claim form too late to respond and on the day the judgment was made - likely delayed by Christmas post and local postal issues. My address is correct. I never received a ticket to my car or any reminders. The first I knew about it was the claim form. I've never received any evidence but I expect they do have a photo of my car without a ticket on it. 

My only defence is that I didn't receive the initial tickets - but my understanding is that they don't have to prove that I received it, only that they sent it. So I feel like I don't really have any defence after that.