Written evidence submitted anonymously (WCC0080)
Introduction and executive summary
Terminology
“CNBC” – the Civil National Business Centre
“MCOL” - the County Court Money Claims Online service
I am a solicitor of more than 40 years standing. I spent most of my career as a partner in a major law firm. Following my retirement from the partnership in 2017, I have been providing legal services to consumers on a pro bono basis. However, most consumers who interact with the County Court are litigants in person.
In the course of representing consumers (as claimants and defendants) in the County Court, I have gained first-hand experience of the shortcomings of the Court systems and procedures as they affect consumers, particularly in relation to small claims. I have identified the following problems:
- overuse and abuse of the County Court by bulk litigators, to the detriment of all other users;
- prohibitive charges and unnecessarily complex and daunting procedures for setting aside default judgments;
- unacceptable delays in answering and dealing with telephone inquiries;
- unacceptable delays and errors in processing documents and responding to correspondence; and
- lack of flexibility in MCOL which is not available in a case where there are more than two claimants or more than one defendant.
The single biggest cause of problems is the conduct of private parking companies and their solicitors in both overusing and abusing the County Court’s procedures. The long-term solution is to remove these cases from the County Court to a specialist independent tribunal, much as statutory parking cases were removed from the magistrates’ courts to specialist tribunals.
In the meantime, the following immediate remedial actions are required:
(a) the Solicitors Regulation Authority (“SRA”) must investigate professional misconduct by bulk litigation firms and take the required enforcement actions;
(b) the Ministry of Justice should invite the Attorney General to use her power to apply to the High Court for vexatious litigant orders against firms who are serial abusers of MCOL; and
(c) improved procedures must be implemented for dealing with default judgments.
Curbing the excesses of bulk litigators will go a great way towards alleviating many of the other problems I have identified.
In addition to problems facing consumer defendants, consumer claimants are frequently denied the use of MCOL to bring claims because of the system’s inflexibility. It would greatly improve the Court’s user experience and ease its correspondence backlog if MCOL could accommodate cases with more than two claimants or more than one defendant.
Detailed evidence
- Private parking bulk litigation
In 2012, Parliament granted parking companies the right to pursue the registered keepers of vehicles through the County Court for private parking charges. The result has been an exponential increase in the County Court’s workload. From a standing start in 2012, it is now estimated that bulk litigators representing private parking companies use MCOL to issue 400,00-500,000 County Court claims annually[1] representing 29-36% of all County Court money claims.[2] This puts a huge strain on the Court’s resources.
The sheer numbers argue for reform of the system so that the resolution of disputed private parking charges is taken out of the County Court entirely and dealt with by independent adjudicators in a statutory tribunal, much as statutory parking cases were removed from the magistrates’ courts to specialist tribunals.
However, the problem is not merely one of numbers. Private parking bulk litigators systematically abuse the County Court process, causing widespread injustice and misery in addition to clogging up the system to the detriment of other users.
Abusive conveyor belt claims
Private parking bulk litigators issue claims on an industrial scale (usually with the addition of unlawful administration charges) for alleged infractions such as remaining too long in a hospital car park or parking with part of a tyre outside the white lines of a small bay. A few of the bigger parking companies issue their own claims,[3] but most are issued by half a dozen solicitor firms that specialise in bulk litigation.[4]
Abuse of the Court’s process starts with issuing claims to the wrong address. A claim can be initiated up to 6 years after the debt was allegedly incurred. The parking company obtains the keeper’s address from DVLA within a few weeks of the alleged contravention. However, proceedings are issued much later, often after several years. It is obvious that people move home from time to time and the Civil Procedure Rules oblige a claimant to take reasonable steps to ascertain the defendant’s current address where a claimant has reason to believe that the defendant has moved.[5]
A “soft trace” to find a defendant’s current address costs about £1. The bulk litigators or their debt collection agencies do perform soft traces. But they do so for enforcement purposes after obtaining judgment rather than before issuing the claim. The result is an avalanche of default judgments against defendants who have moved home.
Claims are issued online via MCOL on a “conveyor belt” basis. Each claim typically uses a boilerplate form of “particulars of claim” that is not tailored to the facts of the case and which, if challenged by a lawyer or a savvy litigant in person, is likely to be struck out by a judge as an abuse of the process of the court.[6] However, most consumers are not equipped to defend themselves and are either unable to afford legal representation or find that the cost of legal representation is disproportionate to the size of the claim.
Most of my own cases have involved claims brought by solicitors DCB Legal. A typical DCB Legal claim for a single £100 parking ticket will rise to £250-300 by the addition of a spurious £70 administration charge, solicitor’s costs, a £35 court fee and interest.
Bulk litigators rely on the ease and cheapness with which MCOL allows them to issue thousands of claims without any quality control by the Court. In DCB Legal’s case there is overwhelming evidence that the firm has no intention of allowing claims to be decided on their merits by a judge. If they are unable to obtain a default judgment, they will badger the hapless consumer (by telephone and in writing) into paying up. If that fails because the consumer puts up a robust defence, gathers evidence, prepares a detailed witness statement etc, DCB Legal invariably abandons the claim before the hearing, having wasted the time of the Court and the consumer, and having caused the consumer enormous distress.
DCB Legal’s propensity to discontinue claims rather than expose them to judicial scrutiny is so notorious that in August 2022 one consumer forum set up a weblink dedicated solely to this phenomenon.[7] A consumer recently reported their experience of dealing with DCB Legal in relation to a discontinued claim in the following terms:
The judge .. awarded costs for travel, parking, loss of earnings and filing my defence statement amounting to £238. He contended that DCBL’s decision to discontinue was not a commercial decision rather that they knew they would lose in a hearing of the facts of the case which they should never have brought in the first place.![8]
Systematic abuse is not limited to suing defendants at the wrong address and issuing bogus claims with no intention of submitting them to judicial scrutiny. I have personally experienced bulk litigation firms committing the following abuses:
(a) issuing claims for alleged debts that have already been settled;
(b) communicating directly with my clients in order to intimidate them into paying, in defiance of their professional obligation as solicitors not to do so;.
(c) issuing proceedings to my clients’ home addresses after being notified of my address as the address for service, in defiance not only of their professional obligations but in breach of the Civil Procedure Rules.[9]
In one case, I reported the misconduct to the Solicitors Regulation Authority (“SRA”) who refused to take action. As a result I now seek redress for my clients by successfully claiming damages in the County Court, thereby contributing to the Court’s overload. While I can achieve redress for my own clients in this way, systemic reform is needed to curb systemic abuse.
The long-term solution is to remove these cases from the County Court to a specialist independent tribunal, much as statutory parking cases were removed from the magistrates’ courts to specialist tribunals.
In the meantime, the SRA must investigate professional misconduct by bulk litigation firms and take enforcement action where appropriate. Also, the Ministry of Justice should invite the Attorney General to apply to the High Court for civil proceedings orders against bulk litigation firms who are serial abusers under Section 42 (Restriction of vexatious legal proceedings) of the Senior Courts Act 1981.
- Setting aside wrongly entered judgments
The ideal outcome for a bulk litigator is a default judgment against a motorist who does not defend themselves. As noted above this is often the result of issuing the claim to an old address without bothering to run an up to date “soft trace”, with that effort deferred until the Court has rubber stamped the application for a default judgment.
But that is not the only cause of default judgments being issued without the defendant having received the claim. Claim forms are delayed or go missing in the post or are delivered to multi-household premises and are not received by the intended recipient. Claims may also be sent to the correct address while the defendant is on an extended trip away from home. I am also aware of cases where claim forms posted by the Court during the 2022 Royal Mail strike (which coincided with the annual Christmas postal delays) arrived after the default judgments that were issued for not responding to them, if they arrived at all.
The common feature of all these cases is that the defendant only learns that they have been sued when they receive a judgment telling them they have already lost the case.
Default judgments are issued, free of charge, on an automated basis without any quality control by the Court, simply on the claimant’s demand and “statement of truth”. The claimant is able, for as little as an initial £35 Court fee, to get a clear run from claim to default judgment just by clicking buttons.
A consumer (who will normally be a litigant in person) on the wrong end of a default judgment is impaled on the horns of an expensive dilemma. If they don’t pay the judgment within a month or persuade a judge to set it aside, the judgment metastasises into a registered CCJ, with catastrophic financial consequences.
But while the issuing of the claim and default judgment are conducted easily and, at the point of judgment, free of charge at the automated whim of the claimant, the process of getting the judgment set aside is difficult and expensive, requiring the payment of an eye-watering £275 Court fee, the drafting of bespoke documentation and a nerve-racking hearing before a judge.
It is manifestly unjust that a bulk litigation firm can issue a claim and obtain automatic judgment on the basis of their own unquestioned “statement of truth” for an all-inclusive price of £35, while a consumer hit with a default judgment cannot have it set aside except by paying £275 for the privilege of trying to persuade a judge in open court that they should be allowed to defend the claim.
Some judges will set the judgment aside but refuse to order the claimant to reimburse the defendant for the £275 court fee. Here is a recent example from a litigant in person:
My case was somewhat complicated because I had already received a default judgement when I didn’t receive DCBL’s original claim from the court. I had the default judgement set aside at a hearing in May 2023.
When DCBL served their discontinuance for the hearing proper in December 2023, I wrote to the court requesting that their discontinuance be set aside as I wanted to claim my costs including the £275 filing fee for setting aside the default judgement in May.
The judge would not allow me to claim that fee today[10]
The following urgent reforms are required:
(a) Except where an address for service has been specified by the defendant, a bulk litigator must be required to conduct a soft trace immediately before issuing a claim and to certify (with a statement of truth) that the claim is addressed to the defendant at the address for service specified by the defendant or at the defendant’s current residence or place of business as revealed by reasonable steps taken immediately before issue of the claim;
(b) any defendant who is subject to a default judgment should have the automatic right to apply to the court (online, by email or by post) within 14 days of learning of the judgment to request a copy of the particulars of claim and for the judgment to be set aside so that the claim can be decided on its merits. To achieve parity with claimants, a defendant’s certification (with a statement of truth) as to the date on which they learned of the default judgment should be sufficient and no court fee should be required. Following receipt of the request, the court should set aside the judgment and send the particulars of claim to the defendant, after which the normal timetable for acknowledgment of service, defence etc is restarted.
- Unacceptable delays in answering and dealing with telephone inquiries
Consumers often need to speak to the Court about their case. For example, under present rules, a consumer who has received a default judgment without having received the claim form will need to ask CNBC for the date of the original claim, the address to which it was sent and an email setting out the particulars of claim in order to prepare a set-aside application. They cannot write to the Court seeking the information because an application to set a judgment aside is urgent and the Court takes seven weeks to respond to correspondence, if it responds at all (see 4 below).
So the hapless consumer must telephone CNBC. I have waited more than an hour for the CNBC to answer a call and on more than one occasion the wait has ended without the call being answered.
I am sometimes engaged to represent a party part way through a case. This necessitates my emailing a form to CNBC notifying them of my appointment. CNBC will not speak to me until the form has been uploaded or the client has telephoned CNMC to authorise them to talk to me. However, CNBC is seven weeks behind in processing correspondence. So in an urgent case, the client must telephone CNBC and wait in the interminable queue in order to authorise CNBC to speak to me. Then I must make my own call and wait in another interminable queue in order to have the urgent conversation.
If it is necessary to speak to the local County Court, rather than CNBC, my experience has been mixed. The County Court at Sheffield answers its calls promptly. The County Court at Barnet does not answer its calls at all. The County Court at Romford no longer has a telephone number. One must instead call a central inquiry line whose call handlers are unable to answer queries but can pass messages to the Romford Court, which might or might not deal with them.
- Unacceptable delays and errors in processing documents and responding to correspondence
CNBC is seven weeks behind in processing documents. That means that consumers must wait nearly two months before they can hope to receive a reply to urgent correspondence, if a reply is sent at all. There is no point in telephoning CNBC to chase a reply to urgent correspondence; the call handlers cannot see the urgent correspondence before it has completed its seven-week journey to be scanned onto the system.
An experience of mine this week illustrates the chaos. On 3 January 2024 I emailed a defence to the correct email address and received an automated response. On 14 January 2024 (after the expiry of the deadline for filing the defence) I received the following perplexing email from CNBC (at the time of writing I am still trying to work out the consequences):
In another case, a failure of communication between CNBC and the Edmonton County Court resulted in my client receiving an alarming order from a judge striking out his defence long after the Court had been notified that I was acting and, more importantly, long after DCB Legal had notified the Court that the claim had been discontinued.
- lack of flexibility in the MCOL online service.
MCOL is not available in a case where there are more than two claimants (e.g. a group who booked tickets on the same flight). It is also not available in a case where there is more than one defendant (e.g. a seller of goods and the bank that issued the credit card used to pay for them, where the bank is jointly and severally with the seller under Section 75 of the Consumer Credit Act 1974). Such claims must be initiated by postal application which mires them in CNBC’s seven-week correspondence backlog.
It would greatly improve the County Court’s user experience and ease its correspondence backlog if MCOL could be improved to accommodate cases with more than two claimants or more than one defendant.
January 2024
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