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  • FIRST POST
    • mckln335
    • By mckln335 26th Jun 17, 1:40 PM
    • 9Posts
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    mckln335
    Unknown default CCJ from VCS/BW Legal
    • #1
    • 26th Jun 17, 1:40 PM
    Unknown default CCJ from VCS/BW Legal 26th Jun 17 at 1:40 PM
    Hello!

    I'll try to keep this brief! A family member parked in a private car park in a retail park in April 2014 and went over the specified time limit. We subsequently received a parking charge notice from Vehicle Control Services through the post with photographs of the vehicle from the ANPR system. I can't remember the exact amount of the fine, but after looking for advice on the internet, we didn't pay it and chose to ignore/bin any further correspondence from Vehicle Control Services. We sold the car in September 2014 and moved house in July 2015 so didn't think about the issue again, until now!

    Fast forward to the present day and after applying for a loan, we were rejected. I checked both of our credit reports and noticed a CCJ from Vehicle Control Services dated 21/09/2016 on the wife's report. We obviously knew nothing about this as we had moved house and therefore a default judgment was made. I have done a little research about getting the CCJ set aside etc so we can try and get it removed, but there is such a plethora of information it's all a bit confusing. I know we have to issue a N244 form to the court but I don't want to waste too much time coming up with a massive long winded witness statement when we really need to get the ball rolling.

    Any help anyone can give would be greatly appreciated!

    Cheers,

    Mark
Page 1
    • Umkomaas
    • By Umkomaas 26th Jun 17, 4:32 PM
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    Umkomaas
    • #2
    • 26th Jun 17, 4:32 PM
    • #2
    • 26th Jun 17, 4:32 PM
    The NEWBIES FAQ sticky, post #2 will help get you started. Plus the following links.

    https://www.google.co.uk/search?q=CCJ+set+aside&cad=h

    http://www.aboutsmallclaims.co.uk/

    http://www.aboutsmallclaims.co.uk/county-court-judgement-against-you.html

    http://www.aboutsmallclaims.co.uk/set-aside-default-court-judgment.html
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • mckln335
    • By mckln335 10th Jul 17, 6:10 PM
    • 9 Posts
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    mckln335
    • #3
    • 10th Jul 17, 6:10 PM
    • #3
    • 10th Jul 17, 6:10 PM
    Apologies for the lack of updates, me and the wife were too busy s######g bricks about whether the mortgage was going to go through due to the CCJ on her credit report! Thankfully we have now completed, so can concentrate on getting this CCJ set aside. I have started filling in the N244 form, which i think is now pretty much complete. The only part i am struggling with is the Witness Statement. I have literally been on the computer all day today and have been everywhere from Pepipoo to ParkingPranksters all the way back to the MSE Forums but cannot find anything specific to VCS/BW Legal and our particular situation. From reading through other people's situations I do however feel more confident that we can get this set aside. Today I have:

    - Contacted our Local MP to make him aware of the situation and asked what is being done to prevent people from receiving default CCJs that could potentially ruin people's lives.

    - Contacted the DVLA to ask who requested Registered Keeper information between 26/02/2014 and 26/06/2014 to establish whether Vehicle Control Services got our details legally. The date of the 'offence' was 26/04/2014.

    If anybody could give me a hand with the Witness Statement/Defence I would be so, so grateful. We discovered the CCJ on 23/06/2017 so I don't want to leave this too much longer as the Judge could see it as an unwarranted delay.

    Cheers,

    Mark
    • Coupon-mad
    • By Coupon-mad 10th Jul 17, 6:31 PM
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    Coupon-mad
    • #4
    • 10th Jul 17, 6:31 PM
    • #4
    • 10th Jul 17, 6:31 PM
    You (or your wife, in fact) needs to show a Judge that:

    (1) the defendant didn't receive the claim form, through no fault of hers, and

    (2) that she acted quickly to get this set aside once she knew about the CCJ, and

    (3) that she has good prospects of successfully defending the claim at a hearing.

    So, have a look at this example:

    http://forums.moneysavingexpert.com/showthread.php?t=5676997

    And make sure you include the fact that she is/was the registered keeper but (as long as no appeal was ever made?) there is no evidence re who was driving, and in 2014 this Claimant chose not to use POFA wording/deadlines for service of a Notice to Keeper, so even if such a document is adduced in evidence by the Claimant, it's incapable of holding her liable in law.

    State that the claim is vexatious and it was wholly unreasonable of the claimant to serve a court claim on an old address for an archive matter, with no due diligence to check the current address of the person they were pursuing, and no due diligence to even provide any evidence of her liability (a keeper cannot be lawfully just assumed to be the driver, especially in a family where more than one adult could drive that car).

    She could take to the set aside hearing, a copy of her statement (of course) and a copy of:

    - the car insurance from 2014, showing more than one driver (thereby smashing to smithereens the assumption she was the driver, on the balance of probabilities)

    - a copy of the transcripts in Excel v Lamoureux and VCS v Quayle, as hosted by the Parking Prankster on his 'case law/more case law' webpages.

    - a copy of Henry Greenslade's wording in the Annual POPLA Report 2015 about 'understanding keeper liability'.
    Last edited by Coupon-mad; 16-07-2017 at 6:30 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mckln335
    • By mckln335 10th Jul 17, 7:42 PM
    • 9 Posts
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    mckln335
    • #5
    • 10th Jul 17, 7:42 PM
    • #5
    • 10th Jul 17, 7:42 PM
    Thanks Coupon Mad, some very useful information there. I shall post up a draft of the witness statement once completed for the forum members perusal if that's ok?

    Cheers,

    Mark
    • mckln335
    • By mckln335 16th Jul 17, 12:48 PM
    • 9 Posts
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    mckln335
    • #6
    • 16th Jul 17, 12:48 PM
    • #6
    • 16th Jul 17, 12:48 PM
    Hello all,

    Thanks for all of your help so far with this. Yesterday I contacted BW Legal to try and negotiate a set-aside with consent as this seems to be the most straightforward option which will get the CCJ removed more quickly. I have offered to pay them the sum of £100 if they agree to the set-aside. In the event that they do not accept this then we will go for a full set-aside application without consent. To this end I have given the Witness Statement that we intend to submit below:


    I am <Name> of <New Address> and I am the Defendant in this matter.


    This Witness Statement is in support of my application dated XXX to:

    • Set aside the Default Judgement dated 21/09/2016 as it was not properly served at my current address and order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
    • Order for the original claim to be dismissed.

    1. Default Judgement


    1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 21/09/2016. I am aware that the claimant is Vehicle Control Services Limited, represented by BW Legal Services Limited. The claim is in respect of an unpaid Parking Charge Notice from 26/04/2014 at <Car Park Name & Address>. I further contest this charge for the reasons outlined in part 2 of this defence.


    1.2. The claim form was not served at my current address and thus I was not aware of the Default Judgement until 23/06/2017. I understand that this Claim was served at <Old Address>. However, this was not my address as I moved to a different address on 09/07/2015. In support of this I am attaching my final Council Tax Notice dated 24/07/2015 showing my new and old addresses. As can be seen, the last date payable at <Old Address> is 08/07/2015 as we were liable to pay Council Tax at our new address at <New Address> from 09/07/2015. I am also attaching evidence from Royal Mail that we redirected our mail for 3 months from 10/07/2015 to 09/10/2015 for myself, my now husband and my father. Both are attached in Exhibit 1.


    1.3. The vehicle in question, Vehicle Registration Mark <VRM> was sold and ownership transferred on 23/09/2014, thereby updating DVLA records.


    1.4. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim. They have used information that was at the time 1 year and 2 months out of date.


    1.5. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system across the country. This is a topical issue: I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” The Minister added that “In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.” I have attached a copy of this in Exhibit 2


    1.6. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.


    1.7. Considering the above I was unable to defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.


    2. Order dismissing the Claim


    2.1 It is admitted that the Defendant was the authorised Registered Keeper of the vehicle in question at the time of the alleged incidents.


    2.2 I believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are because of an alleged breach of contract for parking by a motorist.


    2.3 I believe that the amount claimed in the Judgment of £268.08 is unsupported, including obvious attempts at double recovery such as the ‘legal fees’ that I have good faith to believe VCS will claim BW Legal have charged. Even if VCS had complied with or chosen to use POFA wording at the time of the alleged offence, POFA strictly and without exception limits the amount that can be claimed from the keeper to that listed on the Notice To Keeper. There is no liability for any other charges.


    2.4 I was the Registered Keeper of a vehicle whose registration mark the Claimant obtained through Automated Number Plate Recognition (ANPR) technology, however I do not know the wording of the contract; I do not know the means by which the contract was alleged to come into force.


    2.5 The signage at the site in question was incapable of offering a contract, nor was the core price term (the parking charge) sufficiently prominent.


    2.6 I thus dispute the claim in its entirety since I, as the Registered Keeper of the vehicle, am unable to understand what the Claimant is claiming for.


    2.7 Although the Defendant admits to being the Registered Keeper, there is no evidence as to who was driving and in April 2014 this Claimant chose not to use POFA wording/deadlines for service of a Notice to Keeper. Therefore, even if such a document is adduced in evidence by the Claimant, it's incapable of holding the Defendant liable in law.


    2.8 I therefore believe that the claim is vexatious and it was wholly unreasonable of the claimant to serve a court claim on an old address for an archive matter, with no due diligence to check the current address of the person they were pursuing, and no due diligence to even provide any evidence of liability with regards to the Defendant. A keeper cannot be lawfully just assumed to be the driver, especially in a situation such as this where more than one adult could qualify to drive the vehicle in question.


    2.9 It is the Defendant’s belief that the Claimant will likely attempt to use the discredited cases of Elliot vs Loake and CPH vs AJH Films to try to get around their failure to prove their claim against the vehicle’s keeper. In the former they will claim that there is a ‘reasonable assumption’ that the keeper was the driver, based on a criminal case where actual forensic evidence and the Defendant’s testimony was used to conclusively prove that the keeper was the driver. If the Claimant cannot provide equivalent forensic evidence, which they cannot, then their ‘reasonable presumption’ is shown to be false. I would also like to draw attention to the fact that BW Legal would also fail their first duty to the court as they would likely not make the court aware that their attempts to use this case have failed in every defended claim that the Defendant is aware of. In the case of the latter, the AJH films case relied upon an employee/employer relationship in a company vehicle and used the law of agency to determine the employer had liability. There is absolutely no parallel to this case which is a private vehicle and a private individual as the driver, who is going about private business not under the direction of the keeper.


    2.10 I also believe that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons.


    2.11 Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car park in question, and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able to sue for any damages or trespass.


    2.12 No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be zero or negligible.


    2.13 No contract with the Claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from VCS to the motorist; the gift of parking is the landowner’s, not VCS’s. The car park in question is understood to be free. Therefore, there is no consideration from motorist to VCS.


    2.14 On this basis, I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.


    Does this sound OK? If anybody has any opinions as to whether anything should be added/removed/changed I would be very grateful.

    Cheers,

    Mark
    • Coupon-mad
    • By Coupon-mad 16th Jul 17, 6:37 PM
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    Coupon-mad
    • #7
    • 16th Jul 17, 6:37 PM
    • #7
    • 16th Jul 17, 6:37 PM
    Remove 2.12 - that argument about loss has no legs since the Beavis case.

    I would edit this a bit:
    As far as I can ascertain as the keeper of this vehicle at the material time, but not the driver*, the claim is in respect of an unpaid unfair and unwarranted Parking Charge Notice from 26/04/2014 at <Car Park Name & Address>.

    *only if true
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mckln335
    • By mckln335 16th Jul 17, 6:47 PM
    • 9 Posts
    • 1 Thanks
    mckln335
    • #8
    • 16th Jul 17, 6:47 PM
    • #8
    • 16th Jul 17, 6:47 PM
    Hi CM, thanks for your quick reply, I will be sure to remove 2.12. Regarding who was actually driving, as it was such a long time ago we simply can't remember, it could have just as easily been me as opposed to my wife. Should I edit as you have shown but leave out the starred part regarding the driver?

    Cheers,

    Mark
    • Coupon-mad
    • By Coupon-mad 16th Jul 17, 7:31 PM
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    Coupon-mad
    • #9
    • 16th Jul 17, 7:31 PM
    • #9
    • 16th Jul 17, 7:31 PM
    Edit and say this:

    As it was such a long time ago we simply can't remember who was driving and the Claimant has shown no evidence, and they must - it remains their burden to prove on the balance of probabilities, that the person they are pursuing was driving. It could have been me or my wife, therefore the balance of probability is not tipped one way or the other, since at the material time, there were two drivers named on that car's insurance (which will be brought to court as evidence, along with Schedule 4 of the Protection of Freedoms Act 2012 regarding 'keeper liability' requirements not met by this Claimant).
    Last edited by Coupon-mad; 16-07-2017 at 8:39 PM.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mckln335
    • By mckln335 16th Jul 17, 7:34 PM
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    • 1 Thanks
    mckln335
    Brilliant, thank you. We have today revisited the car park in question and it looks like it has now been taken over by a different PPC called Smart Parking, therefore we could not get pictures of the signage that would have been up at the time. Is this likely to hinder us should it go to a hearing?

    Also, this is what I sent to BW Legal yesterday, I'm doubting they will come back though but we will see:

    Hello,

    I am writing with reference to a Default CCJ given against my previous name at my previous address on the 21/09/2016 (Claim No. <Claim Number>) by your client Vehicle Control Services (VCS) Limited. After speaking to the County Court Business Centre, this relates to an alleged parking offence by VRM <VRM> at <Car Park Address>. I only became aware of the CCJ on 23/06/2017 after applying for a loan and being refused credit. Upon checking my credit report I then discovered the CCJ. The vehicle with which this alleged offence relates to was sold and ownership transferred on the 23/09/2014. Myself and my husband moved home on the 09/07/2015, at which point we redirected our mail. At no point have I received any communication from yourselves in relation to imminent court proceedings and have therefore not had a fair chance to defend myself. This in itself is sufficient for the court to grant a set-aside hearing.

    In this case, in order to bring a swift resolution to this situation and spare wasting a Judge's valuable time on a hearing in court, I am willing to pay the value of £100 if you agree to set-aside by consent. Please indicate if this is acceptable for your client and I will arrange the necessary documentation to be sent to you for signature.

    If this is not acceptable or I have not had a reply to this mail within 5 working days (21/07/2017), I will have no alternative but to apply for a full set-aside with hearing and look to regain my costs of £255 plus expenses from yourselves. You can be assured that I will have a strong defence based on the following points:

    - VCS did not use Protection Of Freedoms Act (POFA) wording in their Notice To Keepers (NTKs) back in April 2014. This means that they have no legal excuse to pursue, or get a CCJ against a registered keeper where the driver has never been established.

    - The claim is vexatious and it is wholly unreasonable of the claimant to serve a court claim on an old address for an archive matter, with no due diligence to check the current address of the person they were pursuing and no due diligence to even provide any evidence of liability. (A keeper cannot be lawfully just assumed to be the driver, especially when I have evidence from archive documents that more than one person was insured to drive the vehicle in question at that time).

    - The claimant lacks authority to offer parking charges or bring claims in their own name.

    - Having revisited the site, the signage in question was incapable of offering a contract, nor was the core price term sufficiently prominent.

    Previous address with which this matter relates to is:

    <Old Address>

    Regards,

    <Name>


    Also, I have edited what you said slightly to:

    However, as the alleged incident was such a long time ago I simply can't remember who was driving and the claimant has shown no evidence, and they must - it remains their burden to prove on the balance of probabilities, that the person they are pursuing was driving. It could have been myself, my husband, or any other family member insured to drive other vehicles. Therefore, the balance of probability is not tipped one way or the other, since at the material time, there were two drivers named on that car's insurance policy.


    Is the part in bold OK? The reason for this is that if the ANPR photograph shows the driver, then it will be fairly easy to distinguish between me and my wife! Remember we don't have any early documentation from VCS relating to this incident, it was either disposed of or misplaced when we moved home.

    Cheers,

    Mark
    Last edited by mckln335; 16-07-2017 at 8:05 PM.
    • Coupon-mad
    • By Coupon-mad 16th Jul 17, 8:41 PM
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    Coupon-mad
    We have today revisited the car park in question and it looks like it has now been taken over by a different PPC called Smart Parking, therefore we could not get pictures of the signage that would have been up at the time. Is this likely to hinder us should it go to a hearing?
    No, not at all.

    And it is perfectly OK to edit that wording as shown, very reasonable. VCS' distant ANPR pics won't show the driver.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • mckln335
    • By mckln335 17th Jul 17, 4:50 PM
    • 9 Posts
    • 1 Thanks
    mckln335
    After asking the DVLA to give us information regarding who accessed their records around the time of the 'offence', they have replied with this:




    Thank you for your enquiry received on 10/7/2017.
    Your case reference number is 00202350.

    So we may help with your enquiry, you will need to submit your request on form V888 which is available to download for free. The completed V888 should be sent to:

    Vehicle Record Enquiries
    DVLA
    Swansea
    SA99 1AJ

    A copy of a utility bill or bank/building society statement, which shows your current address, issued within the last three months, must accompany a V888 request. Please fully read the guidance notes on the V888 before sending your application.

    There is a fee for this service. Please make cheques or postal orders payable to DVLA Swansea.

    You will receive a reply within 4 weeks.

    If you're unable to download and complete the V888 and require the form to be posted to you, please call our Vehicle Customer Services team on 0300 790 6802. Our opening hours are 8am to 7pm Monday to Friday and 8am to 2pm on Saturday.

    Do not reply to this email. If you wish to contact us again about this response then please use our reply form link.

    Best Regards
    H Rees





    Is this right, I thought this was supposed to be information that they were under obligation to disclose for free?


    Cheers,


    Mark
    • Umkomaas
    • By Umkomaas 17th Jul 17, 4:53 PM
    • 13,573 Posts
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    Umkomaas
    I thought this was supposed to be information that they were under obligation to disclose for free?
    You are quite correct.

    http://parking-prankster.blogspot.co.uk/2015/06/dvla-reverse-position-on-charging-to.html
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Coupon-mad
    • By Coupon-mad 17th Jul 17, 7:42 PM
    • 48,025 Posts
    • 61,480 Thanks
    Coupon-mad
    Didn't you search the forum and use the version posted loads of times before (everything has already been done several thousand times over, on this forum):

    http://forums.moneysavingexpert.com/showthread.php?p=71879174#post71879174
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

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