CCJ at wrong address

[R0b]

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)

In either case under 13.2 or 13.3 the claim resets back to the defence stage which you would need to file to either dispute or admit the claim. In theory, as there is no longer a CCJ you can ask the court for them to repay that sum of money back to you. However, you need to decide whether you want to file a defence or if you want to ask the court to dismiss the claim on the basis the sum of money has already been paid so there is now no longer anything to adjudicate on.

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?

I don't suggest you have a weak case simply because you paid up and in fact it is common for many people with little legal knowledge to do that. Paying up does not defeat any set aside under 13.3 because you can argue there are defence points that could be argued at a hearing or as I said if you became aware of the claim, you would have paid in the first place. Most judges are sympathetic with litigants in person in these kinds of situations so its possible it could be set aside on that basis.

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.

Perhaps, but it may be that other residents are in a different situation to you such as having updated their notice address on the land registry. Not really a problem for you to think about.

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

Possibly, costs are the discretion of the court and the usual rule for this kind of application is that the successful party pays the other sides costs provided they are reasonable and proportionate. You can make submissions as to why costs should not be paid or ought to be reduced and the court will then decide. That's the risk of making this kind of application but it's also a risk on Compton Group as well because if they lose, you're entitled to costs at a rate of £19 per hour for the time spent on the application.

I haven't read your draft letter yet and I will try look at it later tonight but likely going to be tomorrow. There's no need to rush that as the main thing is you have your application submitted, there's plenty of time to respond whilst you wait for a date for the hearing which is likely to be a few months in the future.

[dab1]

Here is something that I can’t explain:
in this link

https://www.casemine.com/judgement/u...d03e7f57ea8f63

in para 33, I thought is something that I could use, but the last 2 concluding paragraphs are confusing, on the one hand the judge says the proceedings were validly served, yet the judgment is set aside?


37 It follows that I adhere to the view expressed on 28th March 2011 that the proceedings were validly served even though James Button had no knowledge of them until September 2011.
7 Conclusion
38 The judgment against James Button will be set aside. It follows that the two charging orders will also be set aside.

[R0b]

Not sure why you would want to use this case because para 33 refers to Collier v Williams which is one of the conjoined cases were referred to earlier which included Marshall v Rankine. You should always try to cite the case directly rather than through a secondary court case.

This case was based on CPR 6.2 which was to decide what was meant by "last known address" and the gist of it is if there is no reason to believe that the person does not live at the address after carrying out reasonable enquiries, the claim form will be validly served even if the person does not receive it. As far as I can understand is not of any relevance here because Compton have already admitted that they had reasons to suspect you were no longer living at the address, so the your hearing should focus on CPR 6.3 instead.

[R0b]

I've attached an example response that I would consider sending but up to you as to how much detail you want to put. Also note the point about Exhibit AN9, it's a bit wishy washy but there is some element of argument based on case law though I am not so sure it will stick but might be enough for them to back down.

If you intend to exclude that from your witness statement then you need to make an application to the court to file and amended version at a cost of £255. You can try to contact the court and re-file a new witness statement without Exhibit AN9 but I suspect they will tell you to make an application to amend. The risk is down to you as to whether you decide to pay that fee or amend your response and tell them you are no going to but I can't say for certain that they won't make their own application to strike out the exhibit, though I would be surprised if they had a hearing set before yours, so it may be a case of the application being made/heard on the day of the set aside hearing.

If that's the case, I am not sure what harm/impact it has since as I mentioned in the example response, it's a set aside application and not a trial hearing where the judge is going to decide the claim. It is possible costs could be awarded against you if you lose that strike out application, should they make it.

[dab1]

I sent the email as per the Dab1 - Response.docx, except I left out the last section relating to Exhibit AN9. I also did not confirm the facts, because amongst the facts, the only fact I was not sure of was:

"On or around 7 September 2016, your address for service registered at HM Land Registry was updated to "Flat Address" (see entries 1 and 5 of the Proprietorship Register of HM land Registry title number MAN98xxx)."

I do not recall having instigating this change. It may have been done while remortgaging. When comparing the new title register with the original copy I have, the address was updated from my Old Address to the Flat Address. Not sure why this happened, because in 2016 I was still living in the Old Address.

This is their response: -

Please would you address the points I made to you, namely:

1. to confirm that the facts set out in paragraph 1 of my email of 1 December 2022 are agreed;

2. to supply clearer copies of Exhibits AN1 and AN2;

3. to arrange to remove the without prejudice correspondence from your application.

Imputed knowledge

I note that you reserve your position on this issue but you have made an application for setting aside on mandatory and discretionary grounds in the alternative. To date, I cannot see that you have adduced any evidence that you have a defence to the claim. You have merely asserted your belief that the ground rent demands were not properly served (based on Kilgour) but both Mr McCarry and I have pointed you to the case of Obi-Ezekpaz. Please would you now explain the basis of your assertion that you have a real prospect of defending the claim and supply the draft defence that you referred to as being attached to your application.

Rent demands

Contrary to what you say, your application is based (in part) on you having a defence to the original claim, so please can you explain the basis of your defence.

Service of the claim form

Your application will (in my view) come down to the judge's decision as to whether the Claimant took reasonable steps to ascertain your current residential address.

You suggest that those reasonable steps should include instructing a debt collection agency or tracing agent. This is an odd position, as the thrust of the CPR is towards the reduction of costs, not adding to the costs of debt recovery.

The electoral roll is not a complete list of residential addresses: any voter can opt out of the roll and their address will not appear on it.

To be clear, I use Tanna as an the example of how the Court should determine what "reasonable steps" means.

You are suggesting that a claimant-landlord should make exhaustive and expensive enquiries as to its leaseholder's whereabouts to obtain categorical confirmation of the tenant's place of residence. This would fly in the face of HHJ Luba QC's comments in Golding, to which Mr McCarry referred previously: it is not for a landlord to chase its leaseholders around the country if they fail to make adequate arrangements for the forwarding of post. The landlord was required to take reasonable steps before the claim form was served. My client's position is that it took those steps: it checked the HM Land Registry register, it wrote to any occupier of the property and it sent further rent demands to the property and the other address which might have been your residential address. My client fulfilled the test in Truewood: it did not rely solely on the HM Land Registry record; it also sent correspondence (as per [27] of Truewood) which went unanswered by your tenants.

At the relevant time the Claimant had two addresses for you. It had received no response from you to correspondence sent to either of those addresses. What tipped the Claimant towards the A4 address was the record of that address as a service address at HM Land Registry.

Mr McCarry has already distinguished Marshall Rankine v Maggs: see his email of 17 November 2022.

Yours sincerely,

[R0b]

You are going round in circles with the arguments so you might just want to call it a day and tell them that your position hasn't changed and you are confident you will be successful on one or more grounds. If you want to go back and forth that is up to you.

Any reason why you decided not to address points 1-3? You may be coming across as difficult and unreasonable.

[dab1]

Yes I also felt they were beating around the bush - but was not sure until you confirmed it!

I have no problems addressing their points 1-3 and will reply back to them accordingly. Only issue I have is paying another £250 just to remove their "without prejudice" evidence in point 3. Is this additional cost of £250 recoverable if my case is successful? And can I leave it to the last moment to apply to remove this evidence?

[dab1]

A hearing date is now set on 26th April and 30 minutes has been allowed for the hearing. I wonder what kind of questions the Judge is likely to ask and what kind of tactics the claimant will make to throw me off balance.

Going over this thread, I need to be aware that service of notices is different to service of the claim form - something which took me a while to understand! I guess the Claimants may well resort to this tactic again.

Also, I guess I have to concentrate on Collier v Williams [2006] EWCA Civ 20, and also Marshall v Maggs as the leading authority on the point related to service under CPR 6.9 where the individual has never lived at an address as it is for me.

I will read up these cases and try to understand and so be prepared. Any other help in how to prepare will be most appreciated.

[R0b]

Difficult to actually predict what might happen but you should have a coherent set of arguments. In terms of what the claimant might say, I think you can expect the same lines of arguments that they have already given in their email exchanges. I doubt there would be anything substantially different.

It may help if you prepare and submit a short skeleton argument for the judge to read with reference to the case law. It's not necessary if the court orders but instances like these where both parties intend to rely on case law as primary arguments, you really want to utilise every opportunity to get in front of the judge and on your side.

Arguments should be starting with your strongest and then the weaker alternatives. Just to be clear, the judgment contains decisions related to 3 separate cases on similar issues so Collier v Williams and Marshall v Maggs are separate cases and decision under the same judgment document in the same citation reference. The actual judgment you should focus on is Marshall v Maggs which the judgment is dealt with at paragraphs 50-105. That is the decision that talks about the fact that the words last known or usual address could not for the purposes of serving a claim form be the address for service if the individual never lived there before. Of course you need some evidence to prove that you haven't as I previously mentioned otherwise the court won't just take your word for it - council tax letters, tenancy agreements, electoral roll details registered elsewhere etc. are all compelling evidence of you not living at the property.

The alternative argument you might want to focus on is the fact they accept that there was suspicion that you did not live at that address after sending several letters without response, then they obtained information from the land registry to confirm your correspondence address was at the flat and despite knowing that previous letters were not responded to, oddly they decided to send more letters to the same flat. Instead, they should have looked at alternative options like actually attending the address when they knew letters went without a response. The case I referred to in earlier posts would support your point and the impression I am getting is that the claimant couldn't be bothered to investigate but used the re-sending of a further letter as a cop out to say they complied with CPR 6.9 knowing it was likely not going to get a reply - that's why they failed to comply.

[dab1]

In looking at arguments for the claimants not taking reasonable enough steps to obtain my address, could the claimant have written to the mortgage company and obtained my current address? Or is the lender obliged not to give out my address? The claimants did write to my lender, but only after issuing the court claim.

Recently my son moved house, and did not update his DVLA address. He got a private parking ticket which came to his new address with a letter saying that when they realised he no longer lives at his old address, they obtained his correct address using credit reference agencies. If a parking company can do this, why could the claimant not do this also?

Knowing that the claimants had never before been in touch with me, and they knew I did not live at the flat or the old address, could I tell the judge that it was very naive of the claimant that they felt that looking up the land registry was enough to serve a county court notice? I mean, this is even without the support of Marshal vs Maggs.

[dab1]

I am attempting to prepare my skeleton argument and will reference case law as per Maggs vs Marshall:-

para 68: We do not see how the phrase "last known residence" can be extended to an address at which the individual to be served has never resided.

para 70: It follows in our judgment that the judge was right to hold that service was not effected on the defendant's last known residence for the simple reason that he had never resided at 47 Hays Mews.

para 71: As we have said, there is an important distinction between belief and knowledge. ... In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, ie knowledge which he could have acquired exercising reasonable diligence. ...It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments.

para 72: For the reasons that we have given, however, the claimant failed to effect good service by sending the claim form to 47 Hays Mews on 24 May 2004. (which is an address that the defendant never live in and so could never be their last known address)

para 89: These included: asking the defendant for his address and in the event of not obtaining an answer seeking an order (CPR 6.5(2)); attempting to serve the defendant personally (enquiries at 47 Hays Mews would almost certainly have revealed his actual address);

What is "seeking an order (CPR 6.5(2))" and does it apply to me? In my case, had they attended my flat address, they would have talked to the tenants, who would have given them the letting agent's contact and through whom they would have been able to get my current address.

Also, para 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. (and here, Compton definitely failed to comply as they knew that I did not live at the flat and they still served at the flat address).

I can use Para 101 to say that the claimant had 'knowledge' that I neither lived at the flat address or the old address, and they still served the claim form at the flat address. In doing so they failed to take reasonable steps.

One thing that occured to me, the claimant already has a copy of my defence, will I get enough time to see what the claimant's reply would be?

[dab1]

I have now received the claimaint's response - only 2 days before the hearing. It starts by saying: -

1. The Claimant's offices are based in Swansea. The Claimant does not consider that it would be proportionate for its solicitor to undertake a 336-mile round trip to attend a hearing of an application to set aside judgment, listed for 30 minutes, where the judgment debt has now been paid.

2. The Claimant respectfully asks that the Court takes these Submissions into account when ruling on the Defendant's application notice dated 22 November 2022.

3. The second sentence of paragraph 10 of the First Defendant's Witness Statement 22 November 2022 and Exhibit AN9 attracts without prejudice privilege and should not have been included in the First Defendant's Witness Statement. The Claimant requests that the Court disregards the content of and any reference to privileged correspondence.

[dab1]

This is the rest of it: -

CPR 13.2 - Application notice paragraph 1

4. The Defendants ask for the setting aside of the judgment dated 24 August 2022 under CPR 13.2 due to irregular service of the claim form for one or more of three reasons:
(a) the Defendants had never lived at the address to which the Court sent the claim form; or (b) the Claimant was imputed with knowledge of an address where the Defendants currently reside; or (c) that the Claimant failed to follow the relevant requirements of the CPR.

5. CPR13.2 states:

"13.2 The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because-
(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

(c) the whole of the claim was satisfied before judgment was entered. "

The Defendant's case is that CPR13.2(a) is engaged because the condition in CPR 12.3(1) was not satisfied: as service of the claim form was irregular, the time limit for the service of an Acknowledgment of Service has not expired.
Ground (a): Defendants never lived at service address

6. (a) The First Defendant's evidence is that he has never lived at Flat address.

(b) The First Defendant relies on Collier v Williams [2006] EWCA Civ 201 as authority that a defendant must have lived at an address at some time for the address to be a valid address for service of a claim form. The relevant parts of Dyson LJ's judgment in that case are as follows.
At paragraph [3]:

" Marshall and Rankine v Maggs (paras 50-105 below) is an appeal from Gray J. The three points of principle arising are (i) the meaning of "solicitor is acting for the party to be served" in CPR 6.5(5) and (6): if a solicitor is acting but does not confirm that he is authorised to accept service, are the methods of service contemplated by CPR 6.5(6) available to the claimant? (ii) the meaning of "last known residence" in the table of places for service in CPR 6.5(6): in particular is the honest and reasonable belief that a defendant resided at an address sufficient if the defendant has in fact never resided at that address? ..."
At paragraphs [68-70]:

"68. No authority has been cited to us in which the court has had to decide whether an address can be a person's last known residence if it was never his residence at all.

70. It follows in our judgment that the judge was right to hold that service was not effected on the defendant's last known residence for the simple reason that he had never resided at 47 Hays Mews."

(c) The facts on which Collier v Williams were decided (on appeal from Maggs) were complicated but in summary:

(i) it was a dispute between stockbrokers and their client;

(ii) the case involved the assignment of a right of action against the defendantfrom the claimants’ company to the claimants themselves;

(iii) solicitors were instructed on both sides and, indeed, the defendant dis-instructed one firm and instructed another.

(d) The Claimant avers that the facts of Collier v Williams are easily distinguished from the facts of this case. This case concerns a landlord (the Claimant) and its tenants (the Defendants). Collier v Williams was a case concerning business debts, and it would inappropriate to apply the authority to a dispute that relates to real property and a contract between a landlord and a tenant.

(e) Rule 198 of the Land Registration Rules 2003 states that the registered proprietor of aproperty must give HM Land Registry an address for service.

(f) In Oldham Metropolitan Borough Council v Tanna [2017] EWCA Civ 502, the Court of Appeal (per Lewison LJ) stated:

"7 would hold that as a general rule, unless there is a statutory requirement to the contrary, in a case in which

i) a person (in this case the local planning authority rather than the council taken as a whole) wishes to serve notice relating to a particular property on the owner of that property, and

ii) title to that property is registered at HM Land Registry,that person's obligation to make reasonable inquiries goes no further than to search the proprietorship register to ascertain the address of the registered proprietor. It is the responsibility of the registered proprietor to keep his address up to date. If the person serving the notice has actually been given a more recent address than that shown in the proprietorship register as the address or place of abode of the intended recipient of the notice, then notice should be served at that address also.”

(g) In Obi-Ezekpazu v Avon Ground Rents Limited ([2022] UKUT 121 (LC))3, concerning the service of demands from landlord to tenant, Martin Rogers QC (as he was) held (relying on Tanndy. "In the absence of any evidence that the Landlord or its agent were aware that the Appellant home address in 2013 was Hernans Street Mr Granby [Respondent's Counsel] is therefore entitled to rely both on the registered title ...as justification for treating Newquay House as her last known place of abode."

(h) Further, in the recent case of Golding v Martin [2002] EW Misc 2, HHJ Luba QC (ashe was) said:
"The endnote ... in this cautionary tale must be that 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 address to the premises or (b) entrust the task of keeping an eye on their property to persons who are actually committed to that task."

(i) It seems tolerably clear from that in the context of a landlord and tenant relationship, a landlord may rely on the address for service given to HM Land Registry by the tenant as an address at which service may be effected.

(j) If the Court follows Collier v Williams then it would be open for any non-resident (i.e.buy-to-let) investor leaseholder to inform HM Land Registry that it wishes for notices to be served on it at the flat address and not to confirm its residential address to its landlord. It should then instruct its tenants or the occupiers of the property not to open or forward any correspondence. That would provide a complete defence against any proceedings to be issued by landlord, as it would be impossible for the landlord to effect service of a claim form on the leaseholder. Even if the landlord were to instruct a tracing agent, the tracing agent would have to deliver unequivocal evidence of the leaseholder residing at a certain address. That would not be possible unless the tracing agent were to track the leaseholder's movements over a period of time. This cannot be what theCivil Procedure Rule Committee intended, and it certainly does not correspond in any way with the learned judge's comments in Golding v Martin.

Ground (b): Claimant was imputed with knowledge of an address where the Defendants currently reside

7. For this ground, the Claimant appears to rely on Mersey Docks Property Holdings and others v Kilgour [2004] EWHC 16384 as authority that the Claimant was imputed with knowledge of the Defendant's address, contact details and email address. Kilgour is a High Court authority in which at [72] HHJ Toulmin QC made obiter remarks concerning the knowledge of an assignee of a cause of action.

8. But Obi-Ezekpazu is authority that the knowledge of one landlord is not imputed to a new owner who buys that landlord's interest, see [31-32] of the decision. The decision of the Upper Tribunal (Lands Chamber) is binding on this Court.

Ground (c): Claimant failed to follow the relevant requirements of the CPR

9. The Defendants refer to CPR 6.9(3), 6.9(4) and 6.9(5).

10. The facts are that the Claimant only knew of one address for the Defendants at the relevant time, the property address, Flat Address. The Claimant had no reason at any time before judgment was granted to suspect that the Defendants did not live at that address.

11. CPR 6.9(3) states: "(3) 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 Claimant never had such a belief, so the rule was never engaged. CPR 6.9(4) and CPR6.9(5) are provisions consequential to CPR 6.9(3) and are equally irrelevant.

CPR 13.2: Summary

12. The Defendants application shows no valid grounds for a mandatory setting aside of the judgment.

CPR 13.3 - Application notice paragraph 2

13. The Defendants alternative case is that the Court should exercise its discretion to set aside the judgment under CPR 13.3, either CPR 13.3(a) or in the alternative CPR 13.3(b).

14. The Defendants pleaded case on CPR 13.3(a) is inchoate. The pleadings refer to a draft defence annexed to the application but no such defence was annexed. The Claimant cannot therefore consider whether the Defendant's defence would have any prospect of success. The Claimant submits that the Defendants can have no reasonable prospect of defence, evidenced by their payment of the judgment sum in full.

15.The Defendant's case on CPR 13.3(b) appears to be the only part of the application that bears some merit.

16. The Claimant would agree that there is a good reason for the judgment to be set aside, the good reason being that the Defendants have paid the judgment debt in full.

Costs

17. If the Court agrees to set aside the judgment under CPR 13.3(b) then the Claimant asks for an Order that the Defendants pay the Claimant's costs of this application, to be agreed or assessed. This has recently been agreed in other proceedings before the County Court.

[R0b]

If they are not attending the hearing then you may have the upper hand and it's yours to lose. I've only had a quick scan of the statement but there's nothing in there that suggests Maggs has been overruled and that's what you need to impress on the judge. If I have time later I will take a proper lead and let you know how I think it should be approached but you are free to approach it anyway you like.

Also it would be helpful if you can split out the paragraphs, it's hard to read the way it is.

[dab1]

Their second last sub para of para 6 - "(i) It seems tolerably clear from that in the context of a landlord and tenant relationship, a landlord may rely on the address for service given to HM Land Registry by the tenant as an address at which service may be effected." - is this valid argument?

How do I answer their last sub para of para 6?

Para 8 on imputed knowledge they say "The decision of the Upper Tribunal (Lands Chamber) is binding on this Court" - therefore also is the last know address cannot be my address if I have never lived there was also Upper Tribunal Court and is binding on this Court.

Their para 10 is incorrect - they wrote a letter before claim to my old address, because they suspected I did not live there

In Para 11 "The Claimant never had such a belief, so the rule was never engaged" is not correct - they had reason to believe I did not live there

How do I answer Para 12 & para 14, other than to say I would have paid had I received the demand?

The hearing is this Wednesday and it looks to me like 50:50
I guess whatever happens, I hope the judgement is set aside, and hopefully minimal costs are ordered for me to pay