CCJ at wrong address

[dab1]

Thanks - I think its worth waiting to send a proper email. Any input from other experts will really be appreciated.

[R0b]

If I were responding to their email, I would probably say something along the lines below. It's a bit lengthy but the intention is to set out your stall and let them know you are not bluffing. Feel free to take whatever you want from the example but be aware there are some references in square brackets related to an address so you need to make sure those square brackets are removed in your email.

Obviously the burden of proof will be on the claimant to show they have validly served the claim form but as long as you can prove the flat has had a tenant in from day one, the court must set aside the judgment without discretion and I cannot see how the claimant could defend that. Bear in mind it will cost them money to attend the hearing and it's possible they might try to oppose it, or they may very well come back to you and agree to consent to the judgment being set aside.

Of course, there is always the risk of costs if you lose and you won't get your money back for the application fees but that is the risk you will need to take if you want to have a chance of setting it aside.

- - - - - -

Dear XXX,

Further to your previous emails, I have considered the available evidence and I believe there are strong grounds to set aside the default judgment obtained by your client as of right pursuant to CPR 13.2, which I have summarised below.

As you will know, default judgment may only be obtained where there is valid service of the claim form and, the relevant time for filing an acknowledgement of service or defence has expired. Having reviewed the claim form, it was served at [insert address] (the Flat) and in my opinion, service of the claim form to the Flat was invalid because:

1. I have never lived at the Flat which has been tenanted since the construction of the Flat and available to occupy. I would refer you to the Court of Appeal case of Marshall Rankine and Another v Maggs [2006] EWCA Civ 20 which confirmed that the 'last known or usual address' could not be an address in which the individual has never resided.

2. I note that the initial ground rent demand letters were issued to the Flat but then the letter before action dated 16 June 2022 was sent to [insert address] (Old Address). Presumably, having received no response, the claim form was subsequently issued to the Flat. The fact that the letter before action was sent to an alternative address, must have given rise to a suspicion from your client that I did not actually reside at the Flat.

Where an address for service is not given, your client is required to comply with CPR 6.9, being the usual or last known address. CPR 6.9(3) also states that if the claimant has a reasonable suspicion that the address is not the usual or last known address, reasonable steps must be taken to ascertain the current address. It's not clear how you obtained my Old Address but I had already moved from that place by the time you had sent the letter. Nevertheless, had you made reasonable enquiries such as a tracing agent or carried out a search using a credit reference agency, you would have discovered that the electoral roll would have listed my address as [insert address] (Current Address).

As far as I'm concerned, your client failed to take reasonable steps to ascertain my current address for the reasons explained above. If your client was unable to to do so, then it should have made an application pursuant to CPR 6.9(5) for consideration of an alternative method of service.

3. In any event and prior to their insolvency, Mcinerney Homes Ltd were in possession of my correspondence address which was my Current Address and I have evidence of this. I would add that in Mersey Docks Property Holdings and others v Kilgour [2004] EWHC 1638, it was held that in the case of an assignment, the assignee is imputed with knowledge of the address and other information known by the assignor as at the date of the assignment. It follows that your client was deemed to have knowledge of my Current Address and again, by failing to serve the claim form to the correct address, service was not effective.

For the reasons given above, it is my intention to submit an application to set aside the default judgment but before I do, I would ask you that your client reconsiders it position. I am willing, in good faith, to agree a consent order and pay for the application fees at my expense on the proviso that the default judgment is set aside, your client discontinues the claim having paid the full outstanding fees for ground rent and there are no order as to costs. I do not accept that I should be liable for your client's fees and expenses given that it has chosen to wrongly enter judgment without taking the necessary steps in compliance with the CPR. As for the 2016 ground rent charges, I presume this was not added as part of the claim because it is statute barred having exceeded the six year limitation period. As such, I have no intention of paying it or admitting liability.

I would appreciate if you could provide your response by 4pm on Monday 7th November but if I do not hear from you by then, I will submit my application without further notice to you or your client. In the event that I am successful, I fully intend to seek costs which will include: application fees, travel costs, attendance costs as a witness and costs of preparing my application and witness statement at the current litigant in person rate of Ł19 per hour.

I look forward to hearing from you.

[dab1]

O wow! thank you very much for that.

I have gone over this carefully, and I emailed it to their solicitors, after adding in the addresses and one or two minor changes. Meanwhile I will start looking at filling the N244 in case there is no response.

[dab1]

There has been no response to my email from Comptons. Also, I managed to find the Title Deeds, which shows under 'Proprietrship register' the names of me and my wife with our address (the previous address), and not the address of the flat. I also found a draft copy of the lease.


I need help filling the N244 form and also the witness statement. I can add a letter from McInerney Homes dated October 2007 on completion of the flat, outlining the 10 year NHBC guarantee. I can also add a letter from McInerney demanding ground rent dated March 2011. Both letters sent to my residential address. This will show that I have never lived in the flat and McInerney were in possession of my residential address. I can, if required also add an email from the sellers giving me details of local letting agents.

I am uploading the N244 form, (with my details are missing). Also today I received a letter from Compton demanding ground rent for 2016 and I am uploading that letter too. At the bottom it says "They need to be settled in full before we will provide you with a ground rent receipt, replies to enquiries, confirmation of receipt of a notice or any form of consent uner the terms of your lease." Can they do that?

N244.pdf

Letter Demanding Ground Rent.pdf

[R0b]

Whether or not they can refuse to do any of those things will depend on your lease terms. I would expect it to explicitly say that if you are in arrears they are entitled to refuse XYZ. Not a property expert but here's my initial thoughts

Ground rent receipt - there is generally no legal requirement to supply a receipt so unless it is in your contract, not sure it matters much. I'm sure if you sold the property the questions will be asked whether the rent is up to date or not.

Replies to enquiries - These are between the seller and buyer, so I am not quite sure why the management company would need to be involved. Suppose if you didn't. know an answer that the management co. knows, then that's where they might refuse.

Confirmation of receipt of notice - No idea what this means. Notices in a legal sense are official notices to the other side such as notice of termination, notice of legal action. There's no legal requirement to confirm receipt. Again, if your lease specifically says that termination or some other notice to take effect is only valid if they confirm receipt then you will need to decide how important it is to you. Generally from my limited experience I haven't seen that for this kind of scenario.

Consent under the terms of lease - This is probably the one that might affect you the most. Again, it all depends on the terms of your lease and if consent is required, it might say not to be unreasonably withheld or delayed so if they refused claiming a debt that cannot be recovered, that might be considered unreasonable.

Although you have a draft copy of the lease, it's a start and worth looking through that to see if there's anything in there that allows them to refuse any of the above. Ideally it should be your executed lease but if that draft copy is the standard version that was issued to you, then that might be enough to give you an idea but I wouldn't be relying on it.

With the N244 application you also need to produce a witness statement. I will try to dig an example out that was for a parking ticket to show you how it should be laid out and the contents to consider including.

[dab1]

In my witness statement, do I need to state that I paid up when relating the time line? That will weaken my case as paying up is admitting liability.

[R0b]

In my witness statement, do I need to state that I paid up when relating the time line? That will weaken my case as paying up is admitting liability.

Maye, maybe not.

Setting aside on mandatory grounds means the case will go back to the start where you file a defence. In your defence, you argue that having already paid the sums owed, there is no case to answer and so the claim should be discontinued or dismissed of the court's own volition. The question of payment would only come into play where you are seeking to set aside under the court's discretion, but again your argument would be that you never received any letter before action or claim form and had you done so, you would have paid up immediately which is what you did when you became aware of the CCJ.

I will upload those example documents around lunch time.

[R0b]

Here's an example N244 Form which covers everything including a draft order and reference to a defence.

Thinking about it, it would make sense to file some defence as you want to keep your options open if you fail under the mandatory grounds. I think the fact that you have evidence that the original landowner had knowledge of your correspondence address and the draft lease suggests that your correspondence address is not the flat, you can argue that the demand for ground rent was invalid anyway so they were not entitled to the rent until such time valid notice was given.

You may be able to use the draft lease as a starting point as part of your defence but if the claim did proceed to a hearing you really want a copy of that executed lease. The court may not add weight a draft lease because it's not an executed version and is simply a draft that could have been amended along the way.

Your choice how you want to do things, but will follow up with the witness statement, though you will need to modify to reflect your current position.

[dab1]

Where it says:

(b) the Claimant was imputed with knowledge of an address where the Defendant currently resides, which was not the address used by the Claimant on the claim form;

should I change to:

(b) the Claimant was imputed with knowledge of an address of the Defendant's previous residence, which was not the address used by the Claimant on the claim form;

[dab1]

I find it strange that the letter before claim was sent to my previous residential address on 16/06/2022 while the statutory demands are sent to the flat address on 01/02/2022 and the claim form appears to have been posted by the courts to my flat address on 25/07/2022. None of these I would have received, but just odd that they send letter before claim to a different address.

[MIKE770]

abuse of due process?

[dab1]

I just received this email from the solicitors: -

Thank you for your message which I received yesterday on my return to the office.

I have read your litigation file and find that the Claim Form was properly and regularly served at the flat address which no doubt is an investment property for which you receive an income.

The cases to which you refer are distinguished and are irrelevant to the facts of your case.

Your ground rent account showed that the only address entered was the flat address there not being recorded any other correspondence address; email address or telephone number.

The office copy obtained from H.M. Land registry showed your address as the flat address it not having ever been updated by yourself with your current correspondence address.

Further, the address you had given to HM Land Registry for service is the flat/property address. See Oldham Metropolitan Borough Council v Tanna [2017] EWCA Civ 50 at paragraph 28 for authority that when a person is required to make enquiries as to another person’s address, they discharge their duty by checking the MH Land Registry title for the property owned by the relevant person (see https://www.casemine.com/judgement/u...d03e7f57eb0a73).



In the lease you covenant to pay the lessor ground rent and this implies a duty to inform the lessor of any change of correspondence address which you failed to do.

My client the Claimant had not received any indication or suspicion that you were not residing at the flat address and residing at another address and therefore it relied on the address as the last known or usual place of residence in accordance with the Civil Procedure Rules rule 6.9 and was not obliged to make any further enquiries.

It is not for a landlord to have to locate a leaseholder.

In the recent case of Golding v Martin [2022] EW Misc 2 (CC) (see https://www.bailii.org/ew/cases/Misc/2022/2.html) His Honour Judge Luba QC said: ” …a non-resident and absentee leaseholder who provides no correspondence address other than that of the property itself must either (a) make proper arrangements for forwarding or diverting the mail addressed to the premises or (b) entrust the take of ‘keeping an eye’ on their property to person who are actually committed to the task”.



In the case of Obi-Ezekpazu v Avon Ground Rents Limited and another [2022] UKUT 121 (LC) (see https://www.bailii.org/uk/cases/UKUT/LC/2022/121.html and particularly paragraphs 39, 40 and 43) it was made abundantly clear that the correct address for the service of a rent demand is the flat address, unless the leaseholder has notified the current landlord of an alternative address for service of demands and documents.

I have written to you without prejudice on the subject of setting aside for consideration by my client- the Claimant.

This email will be produced to the Court on any application you may wish to make with regard to a claim for costs.

How to respond before I submit my N244

[dab1]

I could respond to the email with something like this: -

I note that a Letter before claim was sent on 1/06/2022 to my previous residential address, while the statutory demands were sent to the flat address on 01/02/2022 and the claim form was posted by the courts to the flat address on 25/07/2022. This highly irregular and is seen as abuse of due process by the courts. The very fact that my residential address was used, strongly suggests this address was obtained from H.M. Land registry and therefore it is incorrect to say that the title deeds only shows the flat's address.

It is also not correct to say that my ground rent account only shows the flat's address, as McInerny Homes have always communicated with me using my residential address. So therefore, I re-iterate the case in Mersey Docks Property Holdings and others v Kilgour [2004] EWHC 1638 where it was held that in the case of an assignment, the assignee is imputed with knowledge of the address and other information known by the assignor as at the date of the assignment.

We moved from our previous residential address in 2018, and I have evidence that I setup a Royal Mail redirect service up until 04/04/2020. From 2018 to 2020 I received no re-directed mail correspondence from McInerny Homes either for ground rent demand or to indicate that they are to be liquidated. As such I had no knowledge that Compton Group had taken over the ground rents and therefore it becomes impossible for me to update Compton Group of my details.

I ask that you re-consider your position and agree to consent to set aside the CCJ on the terms I have already stated earlier.

[dab1]

In the case of Obi-Ezekpazu v (1) Avon Ground Rents Ltd (2) Gypsy Corner Management (2022)which was ruled upon by the Upper Tribunal in May 2022, the issue on which dispute had arisen was whether demands for rent served at the property address were validly served in the specific circumstances of the case.

I got the above from another thread - looks like the claimant is refering to this case which, rather then ruling for the freeholder, actually ruled against the freeholder!! In my case, McInerny Homes had my service address, albeit my previous residential address. And so, when Compton bought the ground rents they should have served the court papers to my residential address and not the flat.

Am I missing something, surely Compton's legal team cannot make such a big mistake!!

[dab1]

Just wondering if my response in #28 is ok to send or if it can be improved.