CCJ at wrong address

[dab1]

The application has come back saying that it needs my wife's signature in section 1, 10 and 11. I will add that and re-submit tomorrow and take this opportunity to go over the application one more time. Does the Judge need pointing to specific paragraph numbers instead of just quoting Collier v Williams?

[R0b]

At this stage no. You can produce the relevant judgment and walk the judge through the paragraphs on the day of the hearing. In this case a skeleton argument might be useful to submit to the court 48 hours in advance of the hearing so the judge knows what you're going to say - probably a one or two page here and then you can attach the judgments to that skeleton outline.

Once you have your date and hearing, I'll explain in more detail next steps.

Also, if you are adding your wife as a defendant, then she should in theory have a witness statement but since you are doing a WS on behalf of both of you, you will need to update the heading section so where it has your name as the Defendant it should read something like

[Your Name] First Defendant

and

[Wife Name] Second Defendant


-----------------------------------------

Witness Statement of [Your Name] and [Wife Name]

----------------------------------------

You will need to add a second execution section to the bottom of the WS for your wife and she should also sign too for completeness. As long as you amended the beginning to say I [Your Name] of XXXX make this statement in support of myself and on behalf of wife .... etc. you should be ok.

[dab1]

I have had an email reply from the solicitors. It gives arguments agains the points I have raised in the witness statement, and is asking me to withdraw my application. I have copied the email in a word document and re-dacted my personal information in red.

[R0b]

I think the first question is, what are your thoughts? There is some factual information in that document that I can't speak for and which you need to confirm is true or false or if you disagree.

Also as a point of note, any communications that are headed without prejudice and are a genuine attempt to settle an existing dispute cannot be used in legal proceedings without both parties consent. I don't know what you included but they are suggesting that you have included certain correspondence that shouldn't be in there. If there is any discussion around settlement then it should have been excluded - You may have to make an application to amend your witness statement to remove the offending exhibit or contact the court to delete the document from the court file but they may ask you to file an application as that is what you should do formally. It will cost you £255 or you can do nothing and see if they will apply to strike out that document which will mean you may pay additional costs.

In the meantime I will have a look at those legal arguments.

[dab1]

Where they say the below about active companies, is it true?

"The case of Mersey Docks Property Holdings and others v Kilgour [2004] EWHC 1638 (TCC) {18(a)} (Kilgour) does not assist on the question of imputed knowledge. In that case the assignment between Spade Lane Cool Store Limited and Sheerness Cool Stores Limited took place on 3 December 2001. Spade Lane Cook Store Limited then appointed a liquidator on 31 December 2001. The assignment took place between two active companies. In our case, the Claimant bought the reversion to A4 from the Liquidators, and not from McInerney Homes Limited directly"

In point 7 he says "When an asset is sold out of the estate of a company in liquidation, the information provided is usually limited " - if they know this, does this not place greater responsibility on them to ascertain the residential address - especially when they received no replies from the flat or the old address?

They are asking me to withdraw the case to save the court's time but have rejected my reasonable offer of a consent order which saves everybody's time!!!

So, how best to reply? I would like to offer the consent order deal again - with me offering to pay the court fees, and the time barred ground rent, but not their legal fees.

[R0b]

I havent had time to digest what they are saying, but if I were you I would acknowledge receipt of their email and tell them you will respond in due course.

What is the exhibit you included in your witness statement that they claim should not be disclosed. Are you able to share the correspondence word for word? It may be that they have inadvertently waived any privileges communications.

[dab1]

It is the chain of emails between me and the solicitors from 28th Oct to 17 Nov, and I added this to show that I was actively seeking a solution. I will see if I can upload it here after redacting any personal information

[dab1]

In fact they are specifically asking to remove Exhibit AN9 which is the first letter they sent in which they agree to a consent order subject to their fees. Enclosed is AN9 with my personal details redacted

[dab1]

Reading again, I think you are right - the words:

"Nevertheless, I am of the view that in order to do justice to you that this may be a case for my client to agree to an application for setting aside the judgment by Consent Order- which if successful will mean that the judgment will be expunged from the Court record as though it never existed."

But the letter is written without prejudice.

[R0b]

Just so I am clear and to remind myself, you have already paid the outstanding rent demand under the claim or is it still outstanding? Did you at any point during that initial phone call admit liability for the rent demand?

[dab1]

I have already paid, under panic mode in fear of losing the flat. After the payment, when I tried phoning them again, and got through, I did not admit liability, all I was saying on the call was I never received the rent demand and can the CCJ be removed.

[dab1]

If the judge does not allow under CPR13.2, whats the chances he/she will allow under CPR13.3 seeing that there is now no debt? Do the courts look upon this favourably?

If I withdraw, can I apply fresh?

I am just considering my options - and may also consider a paid service to help me remove the CCJ. At the end of the day, I just want my CCJ removed

[R0b]

Whether the claim is set aside under 13.2 or 13.3 the claim should be dismissed on the basis that the full sum of money have been paid, unless you are going to dispute the validity of the rent demand in which case you file a defence. Granted it will be harder since the automatic assumption is if you pay the debt then you are deemed to have admitted liability so arguing under 13.3 where the court has discretion to set aside becomes difficult but not impossible. I'm pretty sure there was a case that accepted the argument that the person's credit record was unblemished and had the person become aware of the debt they would have paid up immediately - that was found to be some other good reason but I will try and find the reference.

If you are going to struggle doing it yourself, then instructing a legal representative would give you a decent chance but again it is not always successful, certainly more likely your chances increase but you may suffer in the costs incurred as not all may be recovered. It may even prompt Compton Group that you are serious about this but by the same token they could still hold their ground in their beliefs that you are wrong.

I've had a chance to review that response and here's my thoughts (long post sorry):

- Regarding the imputed assignment, that isn't particularly your strongest argument and was merely something as a tag along incase all else failed. You may want to agree with Compton and kick that one out to narrow down the issues and arguments. You have a stronger position relying on the arguments that they failed to take reasonable steps and/or you have never lived at the address. This line of argument may be more relevant to whether the rent demand was validly served so as to enable them to seek the sums claimed.

- I've already mentioned before that they seem to be placing heavy reliance on the Tanna case and there are key differences between that case and your case which is about setting aside a default judgment:

a. This case was decided in relation to a planning law dispute where the relevant legislation allowed the local authority to serve notice at the last known address under the Local Government Act and/or the Town and Country Planning Act.

b. The Court stressed that it was a general rule that the address listed on the Land Registry may be used to serve notices unless there is a statutory requirement to the contrary. As I have repeated, the Civil Procedure Act governs all legal proceedings and in turn, Part 6 of the Civil Procedure Rules details the service of the claim form and other documents. That in of itself is sufficient to displace any argument on the general rule given in Tanna.

c. If para b. above wasn't enough, then there is direct authority which you have already referred them to in your correspondence as to how the court has interpreted how claimant's should serve a valid claim form. Marshall v Rankine (this was one of 3 cases heard at the same time and) is authority on the point that an address which an individual has never lived at, cannot be an address for the purposes of valid service of the claim form under CPR 6.9. That Court of Appeal case was approved in the 2020 High Court case of Ivanchev v Velli.

d. At no point in the judgment of Tanna has the Court of Appeal considered the issue as to whether an address which was never lived at can be deemed an address for valid service of the claim form (or a notice in that case). The CoA in Marshall did consider this in the context of CPR 6.9 and found that it could not be an address for valid service. Therefore, Marshall trumps Tanna end of. I would find it incredible if a judge favoured a decision based on planning law over other decisions that directly speak on the issue of CPR 6.9 and which is still accepted as good law.

- Their response admits that they had doubts as to the the flat being your last known or usual address which prompted them to look at the Land Registry for further information. When that confirmed the address for serving notices was the flat, they had chosen serve the claim form at that address relying on the Tanna principle. This is where they have made a serious error of judgment in my view:

a. CPR 6.9(3) requires them to take reasonable steps to ascertain the current residence (my emphasis). First, the dictionary definition of "ascertain" is to discover a fact or to make certain that something is true. Second, this provision explicitly states the reasonable steps has to be taken to find out the current address, not any address but one which you currently reside. This reaffirms my point about the Tanna case and the general rule being overriden by a statutory requirement.

b. Compton Group didn't take any reasonable steps and again by their own admission, they decided to serve the claim form at the flat relying on the general rule in Tanna for sufficient service of the claim form despite having serious doubts about the flat being your place of residence. There's two cases you can rely on to support your position:

Marshall v Rankine, paras. 101-103.

100. 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.

101. 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.

102. But the present case shows how dangerous it can be to make assumptions. In our judgment, the first claimant did not have a reasonable basis for concluding that 47 Hays Mews was the defendant's last known residence. He did not know that it was his last known residence. He assumed that it was. He had no real basis for believing that it was the defendant's residence. He did not know that the defendant had ceased to reside at Bellmans. He merely knew that the defendant invited him to a business meeting at an address which was described to him by the defendant as his "new address". He is unable to point to anything about the address which appeared to indicate that the defendant was living there as his residence at the time.

As above, Compton never tried to ascertain your current residence or even check if you lived there which wouldn't have taken much cost or time. Sending someone round to knock on the flat would have been sufficient to determine whether you lived there or not.

Re Truewood [2020] EWHC 2360, paras. 27-31

27. Knowledge of the sale of Pollards Hill provided reason for the Liquidator to believe that Mr and Mrs Parekh no longer resided at that address. That being so, in accordance with CPR ule 6.9(3) the Liquidator had to take reasonable steps to ascertain the current residence. A reasonable step was to carry out a Land Registry search to ascertain whether Mr and Mrs Parekh owned another property to which they may have moved and be living as their current residence.

28. The fact that the only property identified by the search was Kingswood Avenue produces the possibility that this was that residence. However, it does not ascertain that as a fact. It only identifies legal ownership of a property and in this case there is the additional feature that it was known to have been owned and tenanted since 2000. That does not mean it might not have become the current residence but it does mean that further inquiries were required if reasonable steps were to be taken: for example, attendance at Kingswood Avenue or written correspondence.

29. In other cases, the failure to take reasonable steps may not have mattered because it can be established by other evidence that the property had become the usual or last known residence at the date of service. However, there is no evidence here to sustain a decision that Mr and Mrs Parekh resided in the settled pattern of his/her life at Kingswood Avenue at the time of purported service on 21 May 2014. The current address was not ascertained.

30. The failure to ascertain residence meant CPR Rule 6.9(4)(b) was engaged. The Liquidator had to consider whether Kingswood Avenue was an alternative place where service might be effected. Plainly, the information from the Land Registry raised that possibility. Taking into consideration the sale of Pollards Hill for a consideration which reasonably appears to be a market value (£536,000), the reasonable assumption that Mr and Mrs Parekh will have moved and the absence of any other address, this was a case where an application for an order for alternative service "must" be made under CPR Rule 6.15. It was not.

31. Even if Kingswood Avenue was not an alternative place where service might be effected, the obligation would have been to serve at Pollards Hill in accordance with CPR Rule 6.9(6). That was not done.

There's probably more I could add but what I have said above pretty much covers most of it. In essence, the gist of your application is that Compton have failed to understand the rules and failed to comply with CPR 6.9. In any event an address that you've never lived at cannot be your current residence or last known address per Marshall v Rankine. I suspect their lawyers know this but may be trying to save face and put you off from pursuing this any further or if they genuinely believe their case is solid, then they are reaching at best.

[dab1]

I do have questions and I am trying to ascertain the claimant's position.

1. What happens if the case is allowed in my favour under 13.2? Are the claimant's solictors fees and court fees and costs that they included in their original claim be awarded back to me? This amounts to £120 solicitor fees plus £70 court fee + £70 legal rep costs. (I have already paid this to the claimant to satisfy the court demand)

2. As I have a weak defence under 13.3 (since I paid up and therefore admitted liability), and anticipating that defence fails, will the CCJ still be set aside because the debt is paid?

3. What other concerns the claimant may have in the possibility of the case going to court and them losing? One I can think of is that since they bought a whole portfolio and there may well be other landlords facing the same situation as me. So for them going to court could be seen as more risk for them.

4. Do I have to pay any costs for the claimant's time in court?

Meanwhile, I will prepare a response to the claimant's email and I hope you can have a look later before I send it.

[dab1]

I will be grateful if this response can be reviewed, reworded, edited etc, before I send it out: -

I have read your email and respond as follows: -

We can leave the imputed knowledge for the court to decide for the time being. I will address the point that the claimant did not serve the court application to the correct address.

By your own admission, letters were sent to both the flat and my old address and having received no reply you had reason to believe that I did not reside in any of these addresses.

Downloading the leasehold title from the Land Registry does not amount to taking reasonable steps to ascertain my last known address. The claimant knew, and you say that they had reason to believe that I did not reside in the flat’s address, and yet they still proceeded to send the Court application to the flat address – knowing full well that I did not reside there.

Had the claimant taken reasonable steps, they could easily have found my address. "Reasonable steps" is more then simply downloading the title deeds. The claimant could have arranged someone to visit the flat and knock on the door. The tenant living there would have referred them to the letting agents and from there the claimant would have easily obtained my current residential address. Had the claimant taken this step, I would have paid the ground rent demand well before the need arises to even prepare a Letter Before Claim letter.

You cannot rely on the Tanna case to conclude that you took reasonable steps simply by downloading the leasehold title from the Land Registry. The Tana case is a planning application case and such you are relying on a general rule that the address listed on the Land Registry may be used to serve notices unless there is a statutory requirement to the contrary.

It is the Civil Procedure Act that governs all legal proceedings and in turn, Part 6 of the Civil Procedure Rules details the service of the claim form and other documents.

Further, Marshall v Rankine is authority on the point that an address which an individual has never lived at, cannot be an address for the purposes of valid service of the claim form under CPR 6.9. That Court of Appeal case was approved in the 2020 High Court case of Ivanchev v Velli.

The Tana Court of Appeal did not have reason to consider that an address in which one has never lived in could be deemed as an address of valid service, yet the Marshall Court of Appeal specifically did consider this in the context of CPR 6.9 and found that it could not be an address for valid service. And I repeat, I have never ever lived in the flat, and no letter of demands have ever been sent there prior to the claimant’s.

When the claimant bought the freehold, they were aware of the length of time that had elapsed since McInerny had received ground rents, which was at least 6 years. This a long enough period for people to move home. Despite this knowledge, the claimant did not take reasonable steps to ascertain my address – and I repeat – even after the claimant knew that I did not live at the flat. How then can the flat’s address be deemed valid for service?

Furthermore, please refer to the case of Truewood [2020] EWHC 2360, in particular paragraphs 27-31

27. Knowledge of the sale of Pollards Hill provided reason for the Liquidator to believe that Mr and Mrs Parekh no longer resided at that address. That being so, in accordance with CPR ule 6.9(3) the Liquidator had to take reasonable steps to ascertain the current residence. A reasonable step was to carry out a Land Registry search to ascertain whether Mr and Mrs Parekh owned another property to which they may have moved and be living as their current residence.

28. The fact that the only property identified by the search was Kingswood Avenue produces the possibility that this was that residence. However, it does not ascertain that as a fact. It only identifies legal ownership of a property and in this case there is the additional feature that it was known to have been owned and tenanted since 2000. That does not mean it might not have become the current residence but it does mean that further inquiries were required if reasonable steps were to be taken: for example, attendance at Kingswood Avenue or written correspondence.

29. In other cases, the failure to take reasonable steps may not have mattered because it can be established by other evidence that the property had become the usual or last known residence at the date of service. However, there is no evidence here to sustain a decision that Mr and Mrs Parekh resided in the settled pattern of his/her life at Kingswood Avenue at the time of purported service on 21 May 2014. The current address was not ascertained.

30. The failure to ascertain residence meant CPR Rule 6.9(4)(b) was engaged. The Liquidator had to consider whether Kingswood Avenue was an alternative place where service might be effected. Plainly, the information from the Land Registry raised that possibility. Taking into consideration the sale of Pollards Hill for a consideration which reasonably appears to be a market value (£536,000), the reasonable assumption that Mr and Mrs Parekh will have moved and the absence of any other address, this was a case where an application for an order for alternative service "must" be made under CPR Rule 6.15. It was not.

31. Even if Kingswood Avenue was not an alternative place where service might be effected, the obligation would have been to serve at Pollards Hill in accordance with CPR Rule 6.9(6). That was not done
Based on this, I cannot consider discontinuing my application. I have an excellent credit rating and have maintained this rating over many years. The CCJ will impair this, unless if the judgement is removed.

In order to save time on all sides, I did make you an offer to agree to a consent order to set aside, but not on your terms with your legal costs. You refused. My offer still stands, but on the terms of not including any of your legal costs. I would still be happy to pay the £108 court fee and in addition will pay the time barred ground rent for 2016.

Finally, as for Exhibit AN9, I can agree to not to have the contents of the letter as evidence. Exhibit AN9 can simply remain there for dates purposes to show continuity of correspondence.

This email will be presented to the court as evidence.

Yours sincerely,