Unknown CCJ which I have recently discovered... Looking to apply for a set aside...

[Bowdie1]

I realise I’m aiming for 13:2 which doesn’t need to show a defence ( correct..?) but as ROB advised earlier in the thread I could add a defence in case it fails and I get a chance at 13:3 etc

[Bowdie1]

Forbidding Sign… of course…

So I need to read up on this as it looks perfect…? I wasn’t looking to avoid the charge originally, only the inflated interest ‘but’ this could be a better angle…

thanks

[Bowdie1]

Good morning.


I’m concerned now that I’m clutching at straws..

I was looking to argue a Mandatory set aside the default judgment under CPR 13.2 on the basis that VCSL failed to take reasonable steps to ascertain my last known address. I’m aware, from them, that they checked with DVLA ‘but’ that was all they did… Am I clutching at straws here…?

I was to argue that the length of time from the first letter and obtaining judgment and lack of response from me, VCSL ought to known that there was a possibility that I was no longer at that address and made another search..?

The failure to carry out reasonable check as to my last known address, service of the claim is deemed invalid - and the time limits for filling a defence didn’t expire…


My thoughts are if VCSL didn’t completely comply with the rules, and because the claim form went to the wrong address because of this it was invalid service.


Is one check of a persons address enough?


DCBL we’re able to locate my current address with the same details available to VCSL - thoughts..?


Am I pushing it here…?


I’m now thinking I should settle with consent and pay the amount as much as I’d like to fight this injustice, I can’t afford a CCJ to prevent a change in mortgage etc etc etc.

[Bowdie1]

I’m preparing my white flag…


My concerns and Issues:


1. Promptness.


13.2 Mandatory set aside:


If successful under a mandatory set aside 13.2 then it’s not an issue ‘but’ I think my argument now feels stretched in relation to the wrong address and time limits for a defence not expiring. I am considering that VCSL contacted DVLA, albeit only once, and have claimed that they did not receive any mail ‘returned to sender’ which they argue did not give them reason to believe I had moved but that I was ignoring their correspondence, ‘as a lot of people do’ ( their words in an email ).



13.3 Discretionary Set aside:

I’ll struggle with promptness under a discretionary set aside 13.3 as it’s a consideration along with level of defence etc.

I may have a defence but do I have a chance considering the time scale between knowing about the CCJ and applying for the set aside?


I could argue that VCSL took time to answer emails and of course it took me sometime to established my options and find out about how to go about it. It was over whelming but that won’t be adefence for the promptness.

As a side, an immediate family member died after a relatively short illness in September, which involved me travelling up to Norfolk twice week for 2 months prior. This was a factor in this application taking a rear seat ‘but’ I’m not sure this would betaken into account considering the time scale.



2. Cost.


I could agree to their terms and pay the outstanding balance of £275 plus the £100 set aside cost and clear the CCJ for £375.

If successful under Mandatory 13.2. the application fee/cost (£255) are awarded to me.

However, I I doubt I’d get them awarded under 13.3 even if successful. My thoughts, if successful, are that the judge may consider that a check to DVLA was enough ‘not’ to have costs awarded against the claimant.

As I understand it cost aren’t automatically awarded under a successful discretionary set aside under 13.3 (?)


4. The Principle…


The injustice of this concerns me and I feel I should fight this and perhaps make a stand, however, we all know that the law is written and despite my circumstances I have to work to it and not against it.


I overall aim was to remove the CCJ, however, since researching VCSL and the stress of receiving a back door CCJ I have seen a ‘possible’ outcome which may not favour the claimant, which in the circumstances I have, until this morning, been keen to pursue.


I need a coffee…

[MIKE770]

ostell

[MIKE770]

just sit on your hands and await Ostell., there is a procedure so follow what advised soon.

[Bowdie1]

Was that to me M or Ostell?

All done and will upload to thread this afternoon.

Many thanks

[Bowdie1]

Apologies, I re read your post.

Understood ..!


I have a draft defence and order.

Kind regards

[R0b]

look, all you can do is try and if you dilly dally any longer the more risk you put yourself in not getting the judgment set aside.
CPR 13.2 there is no issue of promptness as it is a mandatory set aside and the court cannot question it. I would argue that it is wrong for VCS to simply use the excuse that because a number of people ignore their letters then it's ok to tarnish everyone with the same brush and make the assumption that the lack of response from the letters it is reasonable to believe you continued to reside at that address. There is a High Court case MB Garden Buildings Ltd v Mark Burton Construction Limited (link here) which was a set aside application. Part of the argument was that it was necessary for the claimant to ascertain the last known address on the day or just before service. That argument was rejected but the judge did say at para. 35 that:

I take the view that if a claimant has carried out inquiries with reasonable diligence as to the defendant's last known residence before that date and on that date it was objectively reasonable for the claimant to believe that the defendant's residence remained unchanged, then on that date it is still the defendant's last known residence for the purposes of service by that claimant. Of course the longer the delay between the inquiries and the date of the step required for service the harder it will be for a claimant to establish that there was good service (my emphasis).

Essentially what you are saying is that VCS first sent the PCN in or around September 2019 and then a series of letters after that including the issuing of a claim which was also ignored ultimately leading to default judgment in March 2020, being a period of 6 months. Given the number of letters sent together with the fact that the claim form went unchallenged or acknowledged ought to have given VCS a reasonable suspicion that you may longer be present at that address.

You may also want to make the point that I made above about tarnishing everyone with the same brush in making the assumption everyone simply ignores their letters. You could also say that really this comes down to VCS not being bothered to take reasonable steps and because they operate on such tight margins, they would rather take the risk of issuing a claim to the wrong address and hope that the defendant (who is normally a litigant in person with little to no knowledge of the law) simply pays up rather than seeking to set aside the judgment.

As for CPR 13.3, promptness is a factor but is not fatal to any claim. You can be lacking in promptness but neverthless have a good reason to set aside such as a good defence. Case in point, in Broadside Colours and Chemicals Limited, Re (No 2) (link here), the judge said at paragraph 29:

To my mind the two most important factors influencing my discretion are first that, as I have held, James Button does have realistic prospects of success on the merits and second that he had no knowledge of the proceedings at all until September 2011. I accept that he did not act promptly in seeking the order set aside between September 2011 and January 2012 but to my mind this is not fatal. He notified Mr Kelly at the end of September that he knew nothing of the claim and there were without prejudice negotiations between the parties between September 2011 and January 2012. No doubt James Button should also have issued this application but it has to be remembered that he was (and is) a litigant in person and was not aware of the need for promptness whilst he was negotiating with the Liquidators(my emphasis).

So, as per the above case you can still have a chance if you supply a draft defence. There doesn't seem to be an excuse as to why you have been hanging around not issuing the application. I'm sure there's another case that says not receiving the claim form is a good enough reason to set aside on grounds under CPR 13.3.

[Bowdie1]

Rob... Thank you

My Dally has Dillied no longer...

Thanks

[Bowdie1]

I'm struggling to get my draft defence in order. I'm confusing myself again...

Can anyone direct me to a defence that I may be able to read and adapt..?

[Bowdie1]

Currently reading through Pepipoo forum

[Bowdie1]

Good evening...

I know I need to know the defence in depth but in terms of the draft defence for the set aside application to I need to add anything more in depth than brief this example..?

PROPOSED DEFENCE

1. Locus Standi - the Claimant is not the landowner;
2. Southend Airport is covered by bye-laws, a traffic violation should be prosecuted in the Magistrates' Court, a private company cannot take it upon themselves to replace the police or magistrates;
3. I do not believe the Claimant has obtained planning permission for their signs which is a criminal offence and makes it impossible to have formed a contract with the driver;
4. the Claimant is claiming the debt, legal costs and an extra invented sum as an attempt at double recovery which invalidates the whole claim.

[Bowdie1]

....

· No contract was ever offered by VEHICLE CONTROL SERVICES LIMITED; the land is subject to its own byelaws and in any case the signage is prohibitive so there can be no payment due as a result of either a contractual charge or as a result of a breach of such a contract.

· It is denied that there is the ability to enter into a contract with the Claimant as the signs which are in place refer to no stopping which it is denied creates a contract for the Defendant to enter into and rather this is a prohibitive notice.

[Bowdie1]

PROPOSED DEFENCE:

• It is denied that there is the ability to enter into a contract with the Claimant as the signs which are in place refer to no stopping which it is denied creates a contract for the Defendant to enter into and rather this is a prohibitive notice.

• Locus Standi - the Claimant is not the landowner;

• Southend Airport is covered by bye-laws, a traffic violation should be prosecuted in the Magistrates' Court, a private company cannot take it upon themselves to replace the police or magistrates;

• I do not believe the Claimant has obtained planning permission for their signs which is a criminal offence and makes it impossible to have formed a contract with the driver;

• the Claimant is claiming the debt, legal costs and an extra invented sum as an attempt at double recovery which invalidates the whole claim.