Urgent Help re Set Aside Hearing in 8 days time via telephone - Private Parking

[thedefendant]

Good afternoon all and thank you in advance for any time, help, or assistance you may be able to give.

I have a set aside (without consent) hearing scheduled to take place via phone in 8 days time and need to streamline everything, the hearing apparently will not be attended by the claimant, and the Judge has been asked to consider the information already provided by the solicitors in their absence.

So far:
Filed and served N244 in person December 2019 having acted promptly upon discovering CCJ - included WS, D/O, and outline of defence to show reasonable prospect of defending, supporting docs credit file paid fee etc. Re-Submitted the bundle in thee prescribed format upon receipt of notice of telephone hearingvia

Notice received to say hearing will now go ahead via phone - does anybody know if this will still be the N244 hearing only, or will this transform into something else given that they may be trying to clear a back log of cases?

How prepared with regards to the defence do I need to be? is an outline enough or will I need cases and legislation to be heard?

I have been severely disadvantaged in not knowing the full facts, though do have scant details so would like to take the initiative and use this hearing to try and get it thrown out, an overall summary is as follows:

P Charge issued in Summer of 2017, CCJ issued approximately 2 years later, by which time had moved to a new address, with redirection in place, nothing ever received, apart from after judgement when Sols sent a Letter before claim wiith no reference to any person/vehicle/amount. This was not responded, it referred to nothing at all, no identifying parties, it was also dated after judgement entered.

Relates to a Resident parking in the estate where he lives, where he was authorised to park by the leaseholder/estate agent and landowner, is alleged to have parked in a guest or visiting bay with no permit. There is contradictory signage, plus any permit requirements may be stated on a sign are not visible or clear, plus another sign by order of the estate does not mention the need for a permit, in addition, permits are provided free of charge in any case. Reason for using bay was estate maintenance being carried out causing parking to be out of action, though who parked/moved vehicle there is impossible to recall. A photo of a ticket attached to the car may exist., They acted in a predatory way ticketing cars who had to move their vehicle due to the maintenance putting bays out of action.

Partiulars of claim:
Claimant: HO RIZON PARKING LIMITED

Judgement amount: £272.01

Particulars of claim: THE DRIVER OF THE VEHICLE WITH REGISTRATION xxxxx (THE 'VEHICLE') PARKED IN BREACH OF THE TERMS OF PARKING STIPULATED ON THE SIGNAGE (THE 'CONTRACT') AT (estate name my entry) - PERMITS ONLY - TCHA - ((list of various roads within the estate that assume need 'permits'), ON xxx/2017 THUS INCURRING THE PARKING CHARGE (THE 'PCN'). THEDRIVER OF THE VEHICLE AGREED TO PAY THE PCN WITHIN 28 DAYS OF ISSUE YET FAILED TO DO SO. THE CLAIMANT CLAIMS THE UNPAID PCN FROM THE DEFENDANT AS THE DRIVER/KEEPER OF THE VEHICLE. DESPITE DEMANDS BEING MADE, THE DEFENDANT HAS FAILED TO SETTLE THEIR OUTSTANDING LIABILITY. THE CLAIMANT CLAIMS £80 FOR THE PCN, £70.00 CONTRACTUAL COSTS PURSUANT TO THE CONTRACT AND PCN TERMS AND CONDITIONS, TOGETHER WITH STATUTORY INTEREST OF £23.13 PURSUANT TO S69 OF THE COUNTY COURTS ACT 1984 AT 8.00% PER ANNUM, CONTINUING AT £0.03 PER DAY


are the additional charges allowed?, I have seen some cases thrown out due to additional costs being added to the Judgement?


With hearing imminent, I am looking to put some meat on the bones, and try to get this thrown out if at all possible. In these uncertain times, I have prepared for an N244 hearing, though have a hint that this will be more than just that, I think some Judges may take this time to close of some cases in the back-log, and I don't want to be the one that is cut out, I want it to be the claimant,


Re costs, as I say, have only prepared for N244, so my draft order asked for costs to be reserved.

One of my main concerns is that I have been preparing for a set aside hearing, so defence-wise have merely given outlines of this, I do have harder evidence of the contradictory signage, though have not submitted that yet, as my understanding is to keep that for the re-hearing after set aside is ordered

[R0b]

Hello

First and foremost, the format of the hearing doesn't change the fact that it is still a hearing based on your application, which will be a request to set aside a default judgment. That is unless the Order from the court says it is specifically something else.

Also, on what basis are you seeking to set aside the judgement - can you provide us with what you have written in section 3 of the N244 form?

The second thing to know is that set aside hearings are not used to conduct a mini-trial, rather they are short and are usually listed for 15 mins but no more than 30. Therefore, you shouldn't really be arguing about anything else other than why the default judgment should be set aside. If you had requested as part of your N244 that you want to set aside the default judgment and at the same time apply for summary judgment then that's what a court will consider. The judge is not obliged to listen to anything else other than the set aside application as it could give grounds for Horizon to appeal on the basis that they were not informed of your intentions.

As for the use of case law, this should be kept to the absolute minimum unless it supports your application as the hearing will likely be time limited as above, is not intended to be a mini-trial.

are the additional charges allowed?, I have seen some cases thrown out due to additional costs being added to the Judgement?

As I said above, if it's not part of your obligation then judges may not wish to hear anything else. You can try to argue that the case should be struck out as an abuse of process if you have the evidence to support that position. Alternatively, if the judge isn't willing to strike out the claim entirely, you could ask the judge to instead make an order that the claim for additional costs are struck out but the remainder of the pleadings stand.

Re costs, as I say, have only prepared for N244, so my draft order asked for costs to be reserved.

That's a fair point, but what if the defendant chooses to discontinue the claim once allocated to the small claims track, then it won't be liable to pay unless the order is worded in a way that they still remain liable. You could in the first instance argue for your costs back, being the N244 and the time preparing for it at £19 per hour which is the litigant in person rate, which should be payable within 14 days. You should provide a costs schedule 48 hours before the hearing on the work you've done, probably no more than a few hours at best completing the N244, witness statement, draft order etc. and I;ll explain below how you might go about that.

One of my main concerns is that I have been preparing for a set aside hearing, so defence-wise have merely given outlines of this, I do have harder evidence of the contradictory signage, though have not submitted that yet, as my understanding is to keep that for the re-hearing after set aside is ordered

Did you file a defence as part of your application or just a witness statement?


Some tips on how you might prepare for your hearing.

1. If you haven't already and/or the Court has not made an order to this effect, you should prepare an electronic bundle to send to the court in advance of the hearing. This should contain the key information and evidence you rely on for your hearing and be in a PDF format. Ideally, it should be indexed and paginated or at the very least paginated for ease of reference to the judge - the easier you make it for the judge, the better as you always want them on your side.

2. It goes without saying but be well prepared, to give you the best chance of being successful. That means, reviewing your evidence and looking at CPR 13.2 or 13.3 or both defending on what you are relying on as the basis to set aside your default judgment and try to think of any questions a judge might ask which you can anticipate with a response. Most of all, be succinct and don't dilly dally.

3. When the hearing starts, I would expect the judge to lead things but if you are left to kick it off, then you can start by summarising what the hearing is about. For example, you could start by saying:

"Good [morning / afternoon] Sir/Madam, my name is X and I am the defendant in this application. I am seeking to set aside a default judgment entered by the Claimant on X date under CPR 13.2 or 13.3 (or both)."

Once you've set the scene and before you begin arguments, you might want to ask the judge that they have a copy of the bundle and evidence before them which you will refer to. At best, the courts are a shambles and they do lose on many occasion bundles and documents.

4. Then you go through your arguments in a logical fashion. So if you were arguing that the court must set aside the default judgment under CPR 13.2 then you could argue that the time for acknowleding the claim did not even begin because the claimant failed to take reasonable steps to ascertain your last known address.

"Sir/Madam, a court must set aside a default judgment under CPR 13.2 where the defendant failed to acknowledge service of the claim form and one of the conditions has been satisfied under CPR 12.3(1), in particular, where the time for acknowleding the claim did not expire under 12.3(1)(b). I believe that the time to acknowledge the claim did not expire because the claimant failed to ascertain my last known address in accordance with CPR 6.9 when serving the claim form. Under this rule, where the claimant has reason to believe that the defendant no longer resides at that known address, it must take reasonable steps to ascertain the defendant's current place of residence.

I have not lived at that address since X date and when I moved out, I updated all records including credit file, driving licence and electoral roll. When the claimant and/or its solicitors started writing to me, it must have had a reasonable suspicion that the lack of reply could mean that I am no longer living at that address. Had the claimant taken reasonable steps such as a tracing check, they would have become aware of my current whereabouts. If, after taking reasonable steps, the claimant could not ascertain my last known address, then it must consider an alternative method of service. There's no evidence to suggest the claimant has either of these steps and as such service of the claim form was not validly served. Because service of the claim form was defective, the time for filing an acknowledgment of the claim never expired and therefore the default judgment must be set aside on that basis."

Note: I'm certain there is case law to support this but I can't think of them right now.

5. If you are arguing under CPR13.3 then you should mention reasonable prospect of defence, point out that you never agreed or accepted liability (how could you if the letters were unknowingly sent to your old address, thus the claimant is misleading the court) and, if you became aware of proceedings you would have filed an acknowledgment and defence.

6. If you are successful, then you should definitely think about asking the court for costs. You rely on CPR 44.2(a) that the general rule about costs is that the successful party should be entitled to their costs. You might get push back from the judge saying this is a small claims matter, however you can point out by saying that actually the case was never allocated to the small claims track and until such time it is, the usual costs rules apply. Also, you can point out that 27.2 which says that certain parts of the CPR does not apply, does not extend to applications made under CPR 23 (general applications).

Even if you get nowhere then you ask for costs to be reserved but request that the order covers an obligation that the claimant pay these costs if it discontinues its claim, as it seems to be common practice by parking providers to avoid its obligations of payment.

7. When you are making references to the CPR, case law and evidence you need to treat the judge like a child who knows absolutely nothing. So you can say something like, "Sir/Madam, I would like to refer you to page X of the bundle which is is CPR 12.3(1)(a) ...." or "Sir/Madam, in the bundle you will find at page X the case X which held that ... In particular, wish to draw your attention to paragraph X where it was said that ..."

8. Final point is to be ready to adapt to the situation. All of what I have said could be useless as the judge might simply say, that he or she has read your application and the judgment is set aside, all within a matter of minutes.

[thedefendant]

superb, many thanks for the post.

[thedefendant]

Quick question, Must the defendant ask the Judge to remove the ccj from the credit file, or is that already covered when a set aside is application is successful?

[thedefendant]

This is related* related to the heating, after application being successful. Requested for costs to be made, do you also have to verbally request the ccj also be removed from the register? Or does a successful set aside automatically include that?

[R0b]

It is automatic. If the Order from the judge is that the CCJ is set aside, the court will update its records to show that and in turn the Registry Trust who manages all CCJs on behalf of HMCTS will be notified. Credit Reference Agencies will get their information from the Registry Trust and likely to be updated on the next credit report.

If you want to speed things up, you could share the Order you receive from the court directly with the Registry Trust and credit agencies and request they remove the CCJ. Not sure the credit agency will do that as they rely on Registry Trust but cover all bases anyway.

[thedefendant]

That's it* is guys, in that case I am pleased to say, with great relief, this was set aside this morning, in a fit of joy forgot to ask the above, BUT as it was a mandatory set aside the £255 fee is to be paid within 14 days, luckily I didn't forget that one!!!

[thedefendant]

Thanks again for your help, I'm sure I will need to polish up on the next steps, but the Judge was superb and gave some direction to me on what to expect and timelines. They must provide a certificate to prove they and it to the correct address then I file a defence and so on.

[R0b]

Good news, glad it was set aside. Would you mind writing up a brief summary of your experience, it might be useful for others to learn from.

You mentioned that the judge set aside as mandatory, I take it you made the argument that time for filing an acknowledgement/defence didn't run because they failed to comply with CPR 6.9?

Also, did the hearing go as I had set out or was it a different situation?

[Celestine]

Lovely result, great early advice from rob*
Good luck with the next stage.

[thedefendant]

Thanks again. Report below:
Hearing time - approx 20 mins in total via telephone due to Covid-19 measures (Case heard by Judge from another court)
Result - Mandatory Set aside under 13.2 with 14 days to repay £255 costs incurred to defendant.

Ruling that Judgement wrongly entered.
Time for acknowledging the claim didn't begin.
6.9.3 of CPR states

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’).

The hearing started 'off-piste' for what I was expecting and had the feeling this was not going to be a 'walkover' to say the least. Judge went straight into why he though it shouldn't be set-aside, that 'there is no reason why' as they had complied by sending to your last known address, eventually I was able to recover the situation, taking it back, stating some timeline to the proceeding and asking if he had received by electronic bundle, and building from there to state that under 13.2 and 13.3 I have mandatory and discretionary grounds.

He stopped me again and said, this is leading back to his question still. Cue 'heart in mouth moment' as I feared that I was about to be 'steam-rollered' and sent packing. Judge asked me my address, and whether I had received any witness statements by xxx, I said I had not (I have the suspicion they have still sent to the old address even after all of this and having my new one). I referred to some items in the bundle namely credit report/DVLA/and a postal letter out of the blue - post judgement - from the solicitors to my new address showing that I was there to be found if they had tried, and should have done this at the time, and that there is a significant time period so should have assumed movign address was likely to have happened, that I have never admitted any liability/contract with the claimant, I stated that a CCJ is a serious issue that can result in my employment being terminated, and that I would never disregard such a matter - I threw it all in. Ultimately though, the length of time was key in 'turning the tide' here, as it is reasonable to assume 'no response' could well be due to moving home given it was in excess of two years since PCN.

I had many more arguments in my back pocket, but this seemed to be the turning point when combining the length of time that had elapsed being enough for that part of the test, and didn't need to elaborate any further,

On to the defence. He asked about any other correspondence, when they filed the claim etc, I then checked the emails with a deathly silence, to confirm they had not sent a witness statement to me despite claiming they had to the Judge, I mentioned that I had received some photographs, and pdf docs after a subject access request, though confuses matters and the documents would have gone to an old address in any case (not sure what he was getting at there to be honest) but he moved on from that.

Judge asked what I would do if it was set-aside, I said I would file a defence, and defend the claim. 'on what basis' he asked. I stated that have a number of various points, the first of which is the signage:

The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of J Spurling v Bradshaw[1956] EWCA Civ 3

The Particulars of Claim state that the Defendant “was driver/keeper)”. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16, 7.5 as there is nothing which specifies how the terms were breached.

Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

I actually had alot more in the back pocket with other lines if this wasn't sufficient, but was not called upon, this seemed to be enough as he then said the magic words and said he will be requesting that the claimant files a certificate to prove they are sending to the correct address in the next stage in the process.

Reasons given were - not validly served 6.9.3 CPR, claimant had reason to believe defendant not residing at the address given the significant time period from PCN, no reply reasons sufficient and claimant should have taken reasonable steps. Time for acknowledging the claim did not ever begin.

On to costs - Judge asked whether I had any other matter. I then stated that I would like to raise the issue of costs for todays hearing namely the £255 fee I had to pay. I asked for costs to be ordered (make sure you ask him to order, do not expect them to give them unless you use the word order!), this is a mandatory set-aside. He agreed and outlined what happens next and that he will order that they provide a certificate to prove they are serving to the correct address, they must file accordingly within 14 days to the correct address. Then I will have to file defence within 14 days of that, then to file directions Q's.

[thedefendant]

All in all, yes you were spot on Rob, as the 'court-report' says it went a bi off-piste initially mainly due to the Judge wanting to get right to the possible road block to my case, but the structure was still there ,* and I had a frame to work within to rescue the situation successfully, definitely the biggest factor for me was that - being able to have it all mapped out, and a real taste of what to expect was what I needed. It is so easy to get flustered with so much on the line in these situations mainly because you are a litigant in person and treading so carefully in a somewhat* 'alien battlefield trying avoid any confusion in your arguments getting across, yet so aware that you also cannot sit back and let the hearing pass you by

[mystery1]

Good afternoon all and thank you in advance for any time, help, or assistance you may be able to give.

I have a set aside (without consent) hearing scheduled to take place via phone in 8 days time and need to streamline everything, the hearing apparently will not be attended by the claimant, and the Judge has been asked to consider the information already provided by the solicitors in their absence.

So far:
Filed and served N244 in person December 2019 having acted promptly upon discovering CCJ - included WS, D/O, and outline of defence to show reasonable prospect of defending, supporting docs credit file paid fee etc. Re-Submitted the bundle in thee prescribed format upon receipt of notice of telephone hearingvia

Notice received to say hearing will now go ahead via phone - does anybody know if this will still be the N244 hearing only, or will this transform into something else given that they may be trying to clear a back log of cases?

How prepared with regards to the defence do I need to be? is an outline enough or will I need cases and legislation to be heard?

I have been severely disadvantaged in not knowing the full facts, though do have scant details so would like to take the initiative and use this hearing to try and get it thrown out, an overall summary is as follows:

P Charge issued in Summer of 2017, CCJ issued approximately 2 years later, by which time had moved to a new address, with redirection in place, nothing ever received, apart from after judgement when Sols sent a Letter before claim wiith no reference to any person/vehicle/amount. This was not responded, it referred to nothing at all, no identifying parties, it was also dated after judgement entered.

Relates to a Resident parking in the estate where he lives, where he was authorised to park by the leaseholder/estate agent and landowner, is alleged to have parked in a guest or visiting bay with no permit. There is contradictory signage, plus any permit requirements may be stated on a sign are not visible or clear, plus another sign by order of the estate does not mention the need for a permit, in addition, permits are provided free of charge in any case. Reason for using bay was estate maintenance being carried out causing parking to be out of action, though who parked/moved vehicle there is impossible to recall. A photo of a ticket attached to the car may exist., They acted in a predatory way ticketing cars who had to move their vehicle due to the maintenance putting bays out of action.

Partiulars of claim:
Claimant: HO RIZON PARKING LIMITED

Judgement amount: £272.01

Particulars of claim: THE DRIVER OF THE VEHICLE WITH REGISTRATION xxxxx (THE 'VEHICLE') PARKED IN BREACH OF THE TERMS OF PARKING STIPULATED ON THE SIGNAGE (THE 'CONTRACT') AT (estate name my entry) - PERMITS ONLY - TCHA - ((list of various roads within the estate that assume need 'permits'), ON xxx/2017 THUS INCURRING THE PARKING CHARGE (THE 'PCN'). THEDRIVER OF THE VEHICLE AGREED TO PAY THE PCN WITHIN 28 DAYS OF ISSUE YET FAILED TO DO SO. THE CLAIMANT CLAIMS THE UNPAID PCN FROM THE DEFENDANT AS THE DRIVER/KEEPER OF THE VEHICLE. DESPITE DEMANDS BEING MADE, THE DEFENDANT HAS FAILED TO SETTLE THEIR OUTSTANDING LIABILITY. THE CLAIMANT CLAIMS £80 FOR THE PCN, £70.00 CONTRACTUAL COSTS PURSUANT TO THE CONTRACT AND PCN TERMS AND CONDITIONS, TOGETHER WITH STATUTORY INTEREST OF £23.13 PURSUANT TO S69 OF THE COUNTY COURTS ACT 1984 AT 8.00% PER ANNUM, CONTINUING AT £0.03 PER DAY


are the additional charges allowed?, I have seen some cases thrown out due to additional costs being added to the Judgement?


With hearing imminent, I am looking to put some meat on the bones, and try to get this thrown out if at all possible. In these uncertain times, I have prepared for an N244 hearing, though have a hint that this will be more than just that, I think some Judges may take this time to close of some cases in the back-log, and I don't want to be the one that is cut out, I want it to be the claimant,


Re costs, as I say, have only prepared for N244, so my draft order asked for costs to be reserved.

One of my main concerns is that I have been preparing for a set aside hearing, so defence-wise have merely given outlines of this, I do have harder evidence of the contradictory signage, though have not submitted that yet, as my understanding is to keep that for the re-hearing after set aside is ordered

Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016)

Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgment of service only if (a) the defendant has not filed an acknowledgment of service or a defence and (b) the relevant time for doing so has expired (my italics). I accept Mr McLaren's argument that, when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgment of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).



I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgment of service when "any of the conditions in rule 12.3(1)…was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.
This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all.






That's possibly the case you were thinking about.

M1

[mystery1]

Hello

First and foremost, the format of the hearing doesn't change the fact that it is still a hearing based on your application, which will be a request to set aside a default judgment. That is unless the Order from the court says it is specifically something else.

Also, on what basis are you seeking to set aside the judgement - can you provide us with what you have written in section 3 of the N244 form?

The second thing to know is that set aside hearings are not used to conduct a mini-trial, rather they are short and are usually listed for 15 mins but no more than 30. Therefore, you shouldn't really be arguing about anything else other than why the default judgment should be set aside. If you had requested as part of your N244 that you want to set aside the default judgment and at the same time apply for summary judgment then that's what a court will consider. The judge is not obliged to listen to anything else other than the set aside application as it could give grounds for Horizon to appeal on the basis that they were not informed of your intentions.

As for the use of case law, this should be kept to the absolute minimum unless it supports your application as the hearing will likely be time limited as above, is not intended to be a mini-trial.


As I said above, if it's not part of your obligation then judges may not wish to hear anything else. You can try to argue that the case should be struck out as an abuse of process if you have the evidence to support that position. Alternatively, if the judge isn't willing to strike out the claim entirely, you could ask the judge to instead make an order that the claim for additional costs are struck out but the remainder of the pleadings stand.


That's a fair point, but what if the defendant chooses to discontinue the claim once allocated to the small claims track, then it won't be liable to pay unless the order is worded in a way that they still remain liable. You could in the first instance argue for your costs back, being the N244 and the time preparing for it at £19 per hour which is the litigant in person rate, which should be payable within 14 days. You should provide a costs schedule 48 hours before the hearing on the work you've done, probably no more than a few hours at best completing the N244, witness statement, draft order etc. and I;ll explain below how you might go about that.


Did you file a defence as part of your application or just a witness statement?


Some tips on how you might prepare for your hearing.

1. If you haven't already and/or the Court has not made an order to this effect, you should prepare an electronic bundle to send to the court in advance of the hearing. This should contain the key information and evidence you rely on for your hearing and be in a PDF format. Ideally, it should be indexed and paginated or at the very least paginated for ease of reference to the judge - the easier you make it for the judge, the better as you always want them on your side.

2. It goes without saying but be well prepared, to give you the best chance of being successful. That means, reviewing your evidence and looking at CPR 13.2 or 13.3 or both defending on what you are relying on as the basis to set aside your default judgment and try to think of any questions a judge might ask which you can anticipate with a response. Most of all, be succinct and don't dilly dally.

3. When the hearing starts, I would expect the judge to lead things but if you are left to kick it off, then you can start by summarising what the hearing is about. For example, you could start by saying:

"Good [morning / afternoon] Sir/Madam, my name is X and I am the defendant in this application. I am seeking to set aside a default judgment entered by the Claimant on X date under CPR 13.2 or 13.3 (or both)."

Once you've set the scene and before you begin arguments, you might want to ask the judge that they have a copy of the bundle and evidence before them which you will refer to. At best, the courts are a shambles and they do lose on many occasion bundles and documents.

4. Then you go through your arguments in a logical fashion. So if you were arguing that the court must set aside the default judgment under CPR 13.2 then you could argue that the time for acknowleding the claim did not even begin because the claimant failed to take reasonable steps to ascertain your last known address.

"Sir/Madam, a court must set aside a default judgment under CPR 13.2 where the defendant failed to acknowledge service of the claim form and one of the conditions has been satisfied under CPR 12.3(1), in particular, where the time for acknowleding the claim did not expire under 12.3(1)(b). I believe that the time to acknowledge the claim did not expire because the claimant failed to ascertain my last known address in accordance with CPR 6.9 when serving the claim form. Under this rule, where the claimant has reason to believe that the defendant no longer resides at that known address, it must take reasonable steps to ascertain the defendant's current place of residence.

I have not lived at that address since X date and when I moved out, I updated all records including credit file, driving licence and electoral roll. When the claimant and/or its solicitors started writing to me, it must have had a reasonable suspicion that the lack of reply could mean that I am no longer living at that address. Had the claimant taken reasonable steps such as a tracing check, they would have become aware of my current whereabouts. If, after taking reasonable steps, the claimant could not ascertain my last known address, then it must consider an alternative method of service. There's no evidence to suggest the claimant has either of these steps and as such service of the claim form was not validly served. Because service of the claim form was defective, the time for filing an acknowledgment of the claim never expired and therefore the default judgment must be set aside on that basis."

Note: I'm certain there is case law to support this but I can't think of them right now.

5. If you are arguing under CPR13.3 then you should mention reasonable prospect of defence, point out that you never agreed or accepted liability (how could you if the letters were unknowingly sent to your old address, thus the claimant is misleading the court) and, if you became aware of proceedings you would have filed an acknowledgment and defence.

6. If you are successful, then you should definitely think about asking the court for costs. You rely on CPR 44.2(a) that the general rule about costs is that the successful party should be entitled to their costs. You might get push back from the judge saying this is a small claims matter, however you can point out by saying that actually the case was never allocated to the small claims track and until such time it is, the usual costs rules apply. Also, you can point out that 27.2 which says that certain parts of the CPR does not apply, does not extend to applications made under CPR 23 (general applications).

Even if you get nowhere then you ask for costs to be reserved but request that the order covers an obligation that the claimant pay these costs if it discontinues its claim, as it seems to be common practice by parking providers to avoid its obligations of payment.

7. When you are making references to the CPR, case law and evidence you need to treat the judge like a child who knows absolutely nothing. So you can say something like, "Sir/Madam, I would like to refer you to page X of the bundle which is is CPR 12.3(1)(a) ...." or "Sir/Madam, in the bundle you will find at page X the case X which held that ... In particular, wish to draw your attention to paragraph X where it was said that ..."

8. Final point is to be ready to adapt to the situation. All of what I have said could be useless as the judge might simply say, that he or she has read your application and the judgment is set aside, all within a matter of minutes.

@R0B*Quote the wrong post last time. Case is probably the 1 above.

M1

[R0b]

Thanks M1 - are you back or one-off post?

That case wasn't actually the one I was thinking of, it was Collier v Williams [2006] EWCA Civ 20.

101. If a claimant purports to serve on an address which he mistakenly believes is the last known residence of the defendant, it is therefore necessary to consider the reasonableness of his belief that the address is indeed the defendant's last known residence. If the claimant is misled by the defendant as to his residence, then the court is likely to hold that the claimant had reasonable grounds for his belief. In such circumstances, the court is likely to hold that there is a very good reason for the claimant's failure to serve within the 4 months period and to grant an extension of time under CPR 7.6(2). In such a case the defendant may even be estopped from denying that the address to which the document is sent is his last known residence.

102. But it is incumbent on a claimant to take reasonable steps to ascertain a defendant's last known residence. What that involves must depend on the circumstances of the case. In many cases, the claimant will know the address for certain. Where the position is less clear, a direct request of the defendant, or his legal representatives (if they do not have instructions to accept service) may yield an answer. Other enquiries may have to be made.

Also another useful and more recent case is Idemia France SAS v Decatur Europe [2019] EWHC 946 (Comm).

104. ... a claimant is entitled to serve a defendant at his "usual or last- known residence" within the jurisdiction. However, the claimant can only rely upon "last-known" if it he has no reason to believe that that is not still the defendant's usual residence. If the claimant does have reason to believe that the defendant is no longer usually resident at that address, the claimant cannot validly serve the defendant at that address, but must take reasonable steps to find out where the defendant does now live, or a place and/or method by which the proceedings may effectively be brought to the defendant's attention. If the claimant can ascertain the current address or a way in which the proceedings can effectively be brought to the defendant's attention, the claimant must apply to the court under CPR 6.15 for an order permitting service by an alternative method or at an alternative place. Only in the exceptional case where, having taken the required reasonable steps, the claimant cannot discover the defendant's current address or any alternative means of bringing the proceedings effectively to the defendant's attention, can the claimant revert to service at the "last-known" address of the defendant.

105. The scheme of this code gives rise to 2 subsidiary questions ... secondly, what standard of "reason to believe" is required ...

110. ... There may, perhaps, be cases in which a claimant would be entitled to continue to believe (for the purposes of relying on an address as the "last-known" address) that a defendant continued to live at a particular address, despite that defendant's protestations to the contrary. But, in my judgment, such cases will be rare. The requirement under CPR 6.9(3) to "take reasonable steps to ascertain the address of the defendant's current residence" is not an onerous one. If, as in the present case, the defendant can be contacted, a simple first step would be to ask the defendant for their address. Claimants who choose not to take such reasonable steps, in the face of protestations by a defendant that the address which the claimant has for them is wrong, do so at their own risk.