Set aside CCJ sent to old address for own space parking

Coupon-mad

I would crack on with the SAR as it can take 30 days to come back anyway and you want to see their evidence photos and all the letters/appeal. It will help you formulate a more meaningful defence once you get the CCJ set aside.

Most important though, is to do the N244 set aside application with Witness Statement, evidence of wrong address for service, and draft Order asking for your costs to be reserved etc.

You are expected to act very quickly when you discover a CCJ, if you want a set aside, and I mean within weeks, ideally, not months. A Judge might not agree if you dither or wait for the SAR or further info.

dan0116

Coupon-mad wrote: »

I would crack on with the SAR as it can take 30 days to come back anyway and you want to see their evidence photos and all the letters/appeal. It will help you formulate a more meaningful defence once you get the CCJ set aside.

Most important though, is to do the N244 set aside application with Witness Statement, evidence of wrong address for service, and draft Order asking for your costs to be reserved etc.

You are expected to act very quickly when you discover a CCJ, if you want a set aside, and I mean within weeks, ideally, not months. A Judge might not agree if you dither or wait for the SAR or further info.

OK so no need to include the skeleton defence with the N244 but potentially bring it to the set aside hearing once I have some more facts from the SAR?

Coupon-mad

Yes that works and is acceptable.

dufflers

That's what i did, just sent the WS and draft order and then took my time with the defence.

Judge didn't even really look at the defence in my case, just a glance and said it wouldn't be needed until the claim hearing later on
Take it with you and get to know the main points in case they want you to prove you can defend it

dan0116

Thanks again for everyone's help so far and apologies in advance for the long post. Below is my draft Witness statement and i'd be grateful if people could cast their eyes over it to check all bases are covered. I'm conscious that I may be repeating myself in places so I may need to refine it to avoid that.

It occurred to me when I scrolled back in my phone log that it was actually the claimant's solicitors who told me where the offences took place and so I added this in too. I hope this doesn't prejudice it in any way.


I've highlighted in red the bits that I'm less sure on including.

IN THE XXXXXXXXXXXXXXXXX COUNTY COURT
Claim No. XXXXXXXX
BETWEEN:
CLAIMANT’S NAME

Claimant
– and –
Defendant
YOUR NAME

_________________________________
WITNESS STATEMENT OF YOUR NAME
_________________________________

I , YOUR NAME of YOUR ADDRESS , being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of the application for an order that the judgment in this case (Claim No. XXXXXXXXXXX Judgment dated XX/XX/2018) be set aside.

2: CPR 13.3 states (1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgement should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.

3. DEFAULT JUDGEMENT

3.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in [DATE]. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXXXX until I did a routine check on my credit file on XXXXXX. I understand that this Claim was served at an OLD ADDRESS XXXXXXX. However, I moved to a NEW ADDRESS XXXXXXX in XXXXXXXX. In support of this I can provide confirmation from XXXXXXX County Council showing my updated details for the purposes of paying Council tax.

3.2. 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.

Note: I have received PCNs and debt collection letters I suspect are related to this issue so maybe I should strike this paragraph out? Or just leave it in on the grounds that I'm speculating and don't have enough detail to know.

3.3. On XXXXXX I contacted XXXXXX County Court to find out details of the Default Judgement. The court papers contain no details of the alleged incident and I did not know what the Default Judgement related to.

3.5. On XXXXXXXX I contacted the Claimant’s Solictor using information given to me by XXXXXXX County Court. I was informed by the Claimant’s Solicitor that the Default Judgement relates to four unpaid parking notices issued as a result of the defendant's breach of terms and conditions of parking at a site managed by the claimant, namely the underground secured car park at my OLD ADDRESS XXXXXXXX which can only be accessed using a fob handed to residents.

3.6. 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.

3.7. 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.

3.8. 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.


4. ORDER DISMISSING THE CLAIM

4.1. 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.

4.2. 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.

4.3. 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.

4.4. A requirement of the Protection of Freedoms Act 2012 is that 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.

4.5. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of XXXXXX, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

4.6. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

Accordingly, it is denied that:

4.6.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant

4.6.2. there was any obligation (at all) to display a permit; and

4.6.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

4.7. The claimant, or their legal representatives, has added additional sums to the original four parking charges to reach a total of [£xx], for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgement for Claimant is awarded.

Note: I haven't got copies of the PCNs but I would suspect they started at £100 each (£400 total) and the total now is much higher than this. Should I note the £100 max or leave my paragprah as it is?

4.8. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

4.8.1. 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.

4.8.2. 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.

Note: I've read contradictory posts on whether this is still a useful argument to use. Should I remove?

4.8.3. 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.

4.8.4. 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 [name of claimant].

4.9. 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.

4.10. 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, YOUR NAME, the Defendant, believe the facts stated within this Witness Statement to be true.
Signed: ________________________________
Dated: ________________________________

dan0116

I think the Draft Order is quite straightforward but for completeness please see below. if anyone has any comments i'd very much appreciate it.


IN THE XXXXXXXXXXXXXXXXX COUNTY COURT
Claim No. XXXXXXXX
BETWEEN:
CLAIMANT’S NAME
Claimant
– and –
Defendant
YOUR NAME
_________________________________
DRAFT ORDER
_________________________________

Upon reading the defendant’s application dated ……………….
It is ordered that:
1. The judgment dated [insert date of judgment] be set aside.

2. The Defendant shall file and serve its Defence by 4pm following 14 days after the date on which the judgement is set aside

3. The Claimant do pay the Defendant’s costs of this application to the sum of £255

4. The Claimant has permission to file and serve a reply if so required.

KeithP

I think your Draft Order needs more thought.

Have a look at the six point Draft Order in this post and see how it differs from yours:

forums.moneysavingexpert.com/showpost.php?p=76279621&postcount=41

dan0116

KeithP wrote: »

I think your Draft Order needs more thought.

Have a look at the six point Draft Order in this post and see how it differs from yours:

forums.moneysavingexpert.com/showpost.php?p=76279621&postcount=41

Thanks Keith. If I amend my draft order to the below do I leave the dates blank for the court to fill in with the exception obviously of the date of the judgement itself?

It is ordered that:

1. The default judgment dated XX.03.2019 be set aside.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the claim form on the Defendant by 4pm on XX/XX/XX paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on XX/XX/XX.

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 plus the Defendant's costs for attending the hearing.

6. All enforcement be put on hold pending the outcome of the application.

Coupon-mad

All OK but remove this entirely:

4.8.2. 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.

Note: I've read contradictory posts on whether this is still a useful argument to use. Should I remove?

Le_Kirk

The draft order should be six-point, see here or here or search the forum with six point draft order as your keyword(s)