Set aside CCJ sent to old address for own space parking

KeithP

Your draft order is fine.

dan0116

I think I now need to pull together a draft defence skeleton. My understanding though is that this doesn't need to be submitted anywhere and I simply bring this along with me on the day? Is that correct or are there certain things I must submit beforehand?

I think it might be easier for me to just pull together a full defence with referenced evidence exhibits etc which so far are:
1. lease and title deed showing my landlord owned the property, including the spaces, and showing no requirement to display a permit
2. letter from estate agent confirming I lived there plus a short form tenancy agreement i signed, again with no parking permit mention
3. council tax bill showing i lived at the new address 9 months before the CCJ was issued
4. copy of SAR from DVLA showing that UKPC requested my keeper details 4 times and that every time it came up with my parents' address
5. POFA 2012 - Schedule 4
6. a. Link Parking vs Parkinson - Claim no C7GF50J7
6. b. Pace Recovery vs Mr N - Claim no C6GF14F0
6. c. ParkingEye v Beavis

Is there anything else I should be including in my evidence bundle?

dan0116

My draft order is below.


IN THE COUNTY COURT BUSINESS CENTRE

Claim No. [xxxxxxxx]

BETWEEN:
UK Parking Control Ltd
Claimant
– and –
[xxxxxxxxx]
Defendant

_

________________________________
DRAFT ORDER
_________________________________

It is ordered that:
1. The judgment dated [abc] 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.

dan0116

And witness statement:

IN THE COUNTY COURT BUSINESS CENTRE

Claim No. [xxxxxxxx]

BETWEEN:

UK Parking Control Ltd

Claimant

– and –
[xxxxxxxx]
Defendant
_________________________________
WITNESS STATEMENT OF [xxxxxxxx]
_________________________________

1. I am [xxxxxxxx] of [xxxxxxxxxxxx] and I am the defendant in this matter. This is my supporting statement to my application dated [xx/xx/xxxx] requesting to:

a. Set aside the default judgment dated [xx/xx/xxxx] as it was defectively served using an old address.

b. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

c. Order for the original claim to be dismissed.


2. DEFAULT JUDGEMENT

2.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on [xx/xx/xxxx]. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement [xxxxxxxx] until I did a routine check on my credit file on [xx/xx/xxxx].

I understand that this Claim was served at an OLD ADDRESS [xxxxxxxx] on [xx/xx/xxxx]. However, I moved to a NEW ADDRESS [xxxxxxxx] on [xx/xx/xxxx]. In support of this I can provide confirmation from [xxxxxxxx] Council showing my updated details for the purposes of paying Council tax (attached at Exhibit A).

2.2. I have never received any previous legal documentation from the Claimant in relation to Default Judgement [xxxxxxxx] and I thus was never able to properly challenge the Claimant’s claim.

2.3. On [xx/xx/xxxx] I called Northampton County Court Business Centre 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.

2.4. On [xx/xx/xxxx] I contacted the Claimant’s Solictor using information given to me by Northampton County Court Business Centre. I was informed by the Claimant’s Solicitor that the Default Judgement relates to four unpaid parking charge 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 key fob which is distributed only to residents.

2.5. 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.

2.6. 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.

2.7. 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.


3. ORDER DISMISSING THE CLAIM

3.1. 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.

3.2. 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.

3.3. 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.

3.4. 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.

3.5. 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 [xxxxxxxx], 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.

3.6. 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:

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

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

3.7. The claimant, or their legal representatives, has added additional sums to the original four parking charges to reach a total of [£700+], 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 Judgment for Claimant is awarded.

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

3.8.1. 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.

3.8.2. 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.

3.8.3. 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 UK Parking Control Ltd.

3.9. 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.

3.10. 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, [xxxxxxxx] , the Defendant, believe the facts stated within this Witness Statement to be true.


Signed: ________________________________
Dated: ________________________________

dan0116

Apologies, I started this new one as it’s a more concise summary of the facts without all of the speculation on my part. I’ll try to have the others closed.

Coupon-mad

It doesn't work like that and would mean you'd get less views & less advice!

You need to have them merged (please) as getting them closed makes like far harder for us. We prefer to see the build up posts, to give it context.

Le_Kirk

dan0116 wrote: »

I’ll try to have the others closed.

Coupon-mad wrote: »

You need to have them merged (please) as getting them closed makes like far harder for us. We prefer to see the build up posts, to give it context.

Just send a PM to a board guide, Crabman, Savvy or Soolin and ask for them to be merged.

soolin

OK, sorry if it looks messy but the merge of various posts has been done as requested.

Coupon-mad

Read henrik777's really useful posts showing exactly how to word a set aside. Yours looks good at first glance BUT you are taking weeks over this and you can't do that!

You must act promptly, it's one of the considerations the Judge will look at.

dan0116

Coupon-mad wrote: »

Read henrik777's really useful posts showing exactly how to word a set aside. Yours looks good at first glance BUT you are taking weeks over this and you can't do that!

You must act promptly, it's one of the considerations the Judge will look at.

Thanks Coupon-mad. I have already sent my draft order and witness statement and been given a court date in January for the set aside hearing.

I think I now need to pull together a draft defence skeleton, although the court hasn’t requested anything yet.

My understanding though is that this doesn't need to be submitted anywhere and I simply bring this along with me on the day? Is that correct or are there certain things I must submit beforehand?

I think it might be easier for me to just pull together a full defence with referenced evidence exhibits etc which so far are:
1. lease and title deed showing my landlord owned the property, including the spaces, and showing no requirement to display a permit
2. letter from estate agent confirming I lived there plus a short form tenancy agreement i signed, again with no parking permit mention
3. council tax bill showing i lived at the new address 9 months before the CCJ was issued
4. copy of SAR from DVLA showing that UKPC requested my keeper details 4 times and that every time it came up with my parents' address
5. POFA 2012 - Schedule 4
6. a. Link Parking vs Parkinson - Claim no C7GF50J7
6. b. Pace Recovery vs Mr N - Claim no C6GF14F0
6. c. ParkingEye v Beavis

Is there anything else I should be including in my evidence bundle?