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  • FIRST POST
    • theblackfox
    • By theblackfox 18th Oct 17, 5:18 PM
    • 8Posts
    • 1Thanks
    theblackfox
    Gladstones / Euro Car Parks / CCJ / Wrong Address
    • #1
    • 18th Oct 17, 5:18 PM
    Gladstones / Euro Car Parks / CCJ / Wrong Address 18th Oct 17 at 5:18 PM
    Hey all!

    I've spent the past week living in these forums reading post after post and it has provided me with some fantastic information with my query which I will explain shortly, I just require a little bit of guidance to make sure I am heading in the right direction.

    ===============
    SITUATION

    After a recent trip to the mortgage advisers last weekend I have recently discovered there is an open CCJ claim against me for a parking fine from Europarkingservices/Gladstones Solicitors registered in February of this year. This is the first I have heard about it as I received no letters or paperwork regarding this because they have been sending everything to an old address which I moved out of at the end of 2014 which can be proven by banking statements, credit check and electoral roll.

    I did not bother to pay or contact them about the parking ticket as I feel it was unjustified and have photo evidence to prove this waiting for them to contact me, but as they were contacting the wrong address I had no chance to appeal or defend it. I assumed they were not pursuing it due to not hearing from them.

    I cannot confirm or deny if the registered keeper details were correct as the car has been sold.

    ===================

    N224 / WITNESS STATEMENT / DEFENCE

    I followed the Saggi case and have based my N244 and Witness statement almost identical to that but have the following query's :

    1. I'm not sure when/where I should add the photo evidence I have in regards to the perfectly parked car with a valid ticket or if I should even mention this at all?

    2. In Saggi's case it is not Gladstones or Euro Car Parks, does that make any part of the witness statement invalid?

    3. In notes of the N244 document, it says "Please indicate in a covering letter any dates that you are unavailable within the next six weeks. I have dates I can't do, how/where do I write this and what's a covering letter?

    ============

    Any other help and advice would be much appreciated.

    I can send or post any further information if requested.

    Cheers
    Last edited by theblackfox; 18-10-2017 at 5:27 PM. Reason: Removed real name
Page 1
    • KeithP
    • By KeithP 18th Oct 17, 7:45 PM
    • 4,719 Posts
    • 3,043 Thanks
    KeithP
    • #2
    • 18th Oct 17, 7:45 PM
    • #2
    • 18th Oct 17, 7:45 PM
    A covering letter is a letter you send with the form when returning it.

    A letter that says something like:
    Dear Sirs,
    Enclosed is a completed xxx form.
    Please can you note that I will not be available to attend court on the following dates:
    [list the dates you are not available]
    [List anything else you want to say that is not covered by the form]

    Your faithfully,
    .
    • theblackfox
    • By theblackfox 17th Nov 17, 3:45 PM
    • 8 Posts
    • 1 Thanks
    theblackfox
    • #3
    • 17th Nov 17, 3:45 PM
    • #3
    • 17th Nov 17, 3:45 PM
    So I've had my hearing date back which is 3 months away, was hoping to be a little sooner but nevermind.

    What should I do next?

    I know I need to prepare a Defence statement, do I wait to receive paper from Gladstones, in the same breath what if they don't send me anything?

    Any advice to get a headstart and keep on top of it with it being 3 months away would be wonderful.

    Thanks in advance!
    • Umkomaas
    • By Umkomaas 17th Nov 17, 4:37 PM
    • 15,864 Posts
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    Umkomaas
    • #4
    • 17th Nov 17, 4:37 PM
    • #4
    • 17th Nov 17, 4:37 PM
    I know I need to prepare a Defence statement
    If you’ve got a hearing date, it’s too late for a ‘Defence statement’. Do you mean a Witness Statement?

    The NEWBIES FAQ sticky, post #2 takes you through the entire court process from LBC to the court hearing.
    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.
    • theblackfox
    • By theblackfox 17th Nov 17, 11:47 PM
    • 8 Posts
    • 1 Thanks
    theblackfox
    • #5
    • 17th Nov 17, 11:47 PM
    • #5
    • 17th Nov 17, 11:47 PM
    If you’ve got a hearing date, it’s too late for a ‘Defence statement’. Do you mean a Witness Statement?

    The NEWBIES FAQ sticky, post #2 takes you through the entire court process from LBC to the hearing.
    Originally posted by Umkomaas
    I have already written and sent my Witness Statement which resulted in me getting the hearing date.

    From what I have read I thought I had to have a well prepared Defence together for when I appear at my hearing to have a good chance of a set aside?

    Is that not correct?
    Last edited by theblackfox; 17-11-2017 at 11:56 PM. Reason: typo
    • Johnersh
    • By Johnersh 18th Nov 17, 9:01 AM
    • 729 Posts
    • 1,351 Thanks
    Johnersh
    • #6
    • 18th Nov 17, 9:01 AM
    • #6
    • 18th Nov 17, 9:01 AM
    Suggest you post the contents of the WS served with your application so we can see it. Ideally I would've served a WS appending a defence.

    This is your hearing. You need to take the court through why it is the default judgment needs to be set aside. It should contain all the relevant documents and be tabbed and paginated. There's lots on this forum about that.

    You should prepare a bundle containing everything - the application notice, statement, particulars, draft defence, photos, a site plan etc etc.

    The bundle needs to be sent to the defendant and the court no fewer than 7 days prior to the hearing. You also need a statement of costs, the latter to be served not less than 24 hrs before the hearing.
    Last edited by Johnersh; 18-11-2017 at 9:03 AM.
    • theblackfox
    • By theblackfox 18th Nov 17, 6:27 PM
    • 8 Posts
    • 1 Thanks
    theblackfox
    • #7
    • 18th Nov 17, 6:27 PM
    • #7
    • 18th Nov 17, 6:27 PM
    Apologies, In my previous posts I was referring to the Draft Defence for my hearing.

    Below is a copy of my Witness Statement that I sent to the court last month with an extra copy for Gladstones along with a Draft Order.

    Details of situation are in original post, but let me know if you need any other info.

    ===================

    In the County Court Business Centre
    Claim Number XXXXXX


    BETWEEN:
    Euro Parking Services Limited (Claimant)
    v
    XXX XXXX (Defendant)




    ________________________________

    WITNESS STATEMENT

    ________________________________

    I am XXXX and I am the Defendant in this matter.
    This my supporting Statement in support of my application dated 19/10/17 to:
    · Set aside the Default Judgement dated 14/02/17 as it was not properly served at my current address;
    · 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 14/02/17. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until 07/10/17 when I was attending a meeting with a mortgage advisor with my fianc!. I understand that this Claim was served at an OLD ADDRESS (XXX XXXX ). However, I moved to a new address on 09/11/14. In support of this I can provide confirmation of updated banking information and I was registered on the electoral roll.

    1.2. I have also never received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.

    1.3. On the 09/10/17 I contacted County Court Business Centre to find out details of the Default Judgement. The court papers contain no details of the alleged incident and I do not know what the Default Judgement relates to.

    1.4. On 10/10/17 I attempted to contact the Claimant using information given to me by County Court Business Centre. I phoned Gladstones Solicitors who were unable to provide any information and asked me to email them which I am still waiting for a reply.

    1.5 On 18/10/17 I contacted the County Court Business Centre again to ask for a copy of the judgement to be emailed to me after not being contacted by Gladstones Solicitors for 8 days. This means as the Defendant, I still do not have any details of the incident the Claimant alleges has taken place, other than the summary of charges now owed, which is shown on the Court papers.

    1.6. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

    1.7. 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.

    1.8. Considering the above I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.



    2. Order dismissing the Claim

    2.1. I further 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 due as a result of an alleged breach of contract for parking by a motorist.

    2.2. If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

    2.3. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

    2.4. A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

    2.5. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
    2.5.1. 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 sue for any damages or trespass.
    2.5.2. 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 at most a few pounds.
    2.5.3. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.
    2.5.4. No contract with the claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to Claimant.

    2.6. 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.
    2.7. In order to make informed decisions and statements in my defence as keeper of the vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.


    Statement of Truth:
    I believe that the facts stated in this Witness Statement are true.
    Full name: XXX XXXXX

    Dated 19/10/17

    Signed: __________________________________
    • Coupon-mad
    • By Coupon-mad 18th Nov 17, 9:57 PM
    • 51,641 Posts
    • 65,300 Thanks
    Coupon-mad
    • #8
    • 18th Nov 17, 9:57 PM
    • #8
    • 18th Nov 17, 9:57 PM
    Looks good, what else do you need to know before your set aside hearing?
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • theblackfox
    • By theblackfox 19th Nov 17, 5:51 PM
    • 8 Posts
    • 1 Thanks
    theblackfox
    • #9
    • 19th Nov 17, 5:51 PM
    • #9
    • 19th Nov 17, 5:51 PM
    Hey Coupon-mad,

    Firstly, am I correct in spending my time before the hearing putting together a draft defense to take with me (or submit to them whichever is right).

    Secondly, how do I write a draft defense when/if I never received any paperwork from Gladstones, or will that come in the post? (Probably the day before the hearing right?)

    Thirdly, any recommendations on how to approach my draft defense based on my first post information and when do I start talking about the photo evidence I have of the correctly parked car.

    Thanks in advance!
    Last edited by theblackfox; 19-11-2017 at 5:56 PM. Reason: typo
    • theblackfox
    • By theblackfox 7th Dec 17, 11:27 AM
    • 8 Posts
    • 1 Thanks
    theblackfox
    Hey CouponMad,

    Any update on this one? Just looking to use some time over Christmas to get things done if needed.

    Cheers
    • nosferatu1001
    • By nosferatu1001 7th Dec 17, 11:48 AM
    • 1,136 Posts
    • 1,161 Thanks
    nosferatu1001
    You need three elements to your set aside
    1) draft order you want them to make at court, i.e. set aside judgment of x date, repay set aside fee of £255 by 14 days of hearing, etc
    2) a reason for the set aside to be granted, for example failure of service as they did not use a good address
    3) a draft defenCe (NOT defense, UK English please!) covering everything starting with the fact the keeper has no liability in this matter (as Gladstones clients dont comply with POFA)
    You dont need to see their documents to write a defence, because as POst 2 of the newbies thread tells you , essentially every defence to a PCN is based in contract law and is easy to deal with.
    • Johnersh
    • By Johnersh 7th Dec 17, 1:32 PM
    • 729 Posts
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    Johnersh
    Civil Procedure Rules (CPR) 6.9(3) are your friend. These state:

    (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) [i.e. referring to the Defendant's usual or last known address] 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’).

    (4) Where, having taken the reasonable steps required by paragraph (3), the claimant –
    (a) ascertains the defendant’s current address, the claim form must be served at that address; or
    (b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is
    (i) an alternative place where; or
    (ii) an alternative method by which, service may be effected.


    The point is that in 2017, can the Claimant reasonably assume that the Defendant still lives where they did in 2014? In my view that should be NO (but if, for example, they obtained your details only recently from a V5C that you hadn't updated, the converse would be true).

    There are few authorities on the point, but Marshall Rankinve v Maggs is helpful (at para 71)
    What is the position where the address is one at which the individual to be served has resided at some time? The point does not arise for decision in the present case. But in view of the uncertainty that exists as to the meaning of "last known residence", we think that it may be helpful if we express our view in particular on the interesting suggestion made by Mr Zuckerman. What state of mind in the server is connoted by the words "last known"? In our judgment, Mr Zuckerman's interpretation goes too far. As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word "known". 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. We arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. 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.

    The above has my emphasis in bold. So, given the passage of time, with even the most basic of checks would they have been able to rely on the address they did for service?
    Probably not.
    Was there a need to serve urgently because of the risk of the time limits expiring
    Probably not, given that there is a 6 year limitation

    So what you have is a default judgment because the claimant (i) took no due diligence to check that the details that they had on their systems were up to date (ii) had no recent correspondence from you to allow them to assume the address was still current; and (iii) despite having no affirmation that the address was current and ample time to check, they issued proceedings anyway.

    That then leads you to CPR 13.2
    13.2 The court must set aside(GL) 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;

    MUST is imperative. In effect, the judgment should not have been granted because service was not correctly affected. See for example, Tanir v Tanir where the Court had failed to serve the proceedings.
    http://www.bailii.org/ew/cases/EWHC/QB/2015/3363.html
    • Johnersh
    • By Johnersh 7th Dec 17, 1:37 PM
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    • 1,351 Thanks
    Johnersh
    i'd agree with much of what nosferatu1001 says above, save that I would not say that there is no need to see the Particulars to prepare a defence. It is correct that it will probably take a standard form and a template is likely good enough, but assumptions lead to errors...

    In most cases the PoC are endorsed on the claim form. It is a 2 minute enquiry to make of the Court and you should have it available before the hearing to avoid any surprises.
    • theblackfox
    • By theblackfox 8th Dec 17, 12:48 PM
    • 8 Posts
    • 1 Thanks
    theblackfox
    Thank you nosferatu1001 and Johnersh,

    @nosferatu1001
    1. I have already done my draft order and sent it along with my witness statement when applying for set aside
    2. Agreed. That's the approach I went with in my witness statement, that I have not been served correctly and that the default judgment contains no details of the alleged incident.
    3. I understand I need to write a draft defence and can use templated information for most of it, but looking for advice on the defense elements of my individual case based on what I have created in my witness statement.

    @Johnersh
    Thank you for the CPR information, I take it I list this as a reference point of evidence in my draft defense?

    I obtained a copy of the judgment from the court (which I included a copy of with my witness statement) which contains no PoC, just the obscure amount requested to pay.

    Just to recap in my previous posts I've based my approach on the Saggi case as it felt very similar to my situation, so when submitting the N244 I included only the Witness Statement, Draft Order and Copy of Judgement which was sent to the court, gladstones and kept a copy for myself.
    Last edited by theblackfox; 08-12-2017 at 1:03 PM.
    • nosferatu1001
    • By nosferatu1001 8th Dec 17, 1:11 PM
    • 1,136 Posts
    • 1,161 Thanks
    nosferatu1001
    That isnt a defence point, but a reason why the set aside must be granted

    Defence - why youre not liable for the charge
    Set aside - that the jdugment should not have been entered and so should be set to one side, as if it never happened.
    • Johnersh
    • By Johnersh 8th Dec 17, 6:22 PM
    • 729 Posts
    • 1,351 Thanks
    Johnersh
    In my view you should be entitled to a set aside without even needing to consider whether there is a valid defence, for the sole reason that the claimant was never entitled to default judgment to begin with.

    If the court doesn't accept that argument, they then consider whether you acted promptly and whether you have a decent defence. Two, slightly different, tests to think on....
    • theblackfox
    • By theblackfox 8th Dec 17, 9:28 PM
    • 8 Posts
    • 1 Thanks
    theblackfox
    Thanks Joshnersh.

    So to prepare for my set aside hearing would my next plan of action be:

    - Prepare draft defence document covering everything starting with the fact the keeper has no liability in this matter (as Gladstones clients don't comply with POFA) like nosferatu1001 suggested

    - Prepare a bundle including the application notice, statement, particulars, draft defence, photos (Would these be my parked car photos I have?), a site plan etc and send to the defendant and the court no fewer than 7 days prior to the set aside hearing as you suggested in a previous post.

    - Submit the above bundle to the defendant and the court no fewer than 7 days prior to the set aside hearing as you suggested in a previous post.

    Again, all the above would be based on templated information as I have no particulars from Gladstones yet.

    Would it also be ok to post my draft defence in this thread for review before I submit it?
    • Redx
    • By Redx 8th Dec 17, 10:10 PM
    • 16,867 Posts
    • 20,946 Thanks
    Redx
    yes , post it in this thread , one thread , one topic is the rule

    keep it all together

    and CM wont be replying because unfortunately she has been PPR`d by mse staff
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Umkomaas
    • By Umkomaas 8th Dec 17, 10:56 PM
    • 15,864 Posts
    • 24,586 Thanks
    Umkomaas
    and CM wont be replying because unfortunately she has been PPR`d by mse staff
    Any idea for how long? Usually it’s about 2 weeks, but it seems a little longer than that at the moment.

    It always happens when a certain individual pops up under yet another guise, then disappears once a seeming objective is achieved.
    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.
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