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Set Aside CCJ - Advice on Defence Statement please
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The £255 can be ordered by a Judge to be refunded at a set aside hearing.
But we've only seen that happen once on here. Worth asking though and showing unreasonable conduct and 'incoherent cause of action/no evidence/ no due diligence in ensuring the claim went to the right address. Maybe throwing in the Government's statement to stamp out such bad practice and they singled out parking companies:
http://parking-prankster.blogspot.co.uk/2016/12/government-announce-ccj-review-due-to.html
Other than that, yes it gets added to the costs schedule in the defendant's paperwork once a claim proceeds.if sadstones do not restart , have you had your money back
Most Orders I've seen expect payment in 14 days I think, unless stated otherwise.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks. Just not sure what to expect in the hearing itself having never done anything like this before.
Is it as simple as reiterating what I send in to the court to ask for the set-aside, to the judge verbally? or will the judge just ask me questions?
xx0 -
It is good if the Judge asks questions about your defence (and yes, the Judge should do). You can use what we've shown you, to argue that this entire claim is without merit and that CEL should pick up the cost of the set aside. Try it, this is your money. The Judge should agree to the set aside but the icing on the cake would be if CEL are ordered to pay you back!
That's why I wrote the stuff above in post #10, why not print it out to use it as a crib sheet? DO NOT say who was driving, also take along the Parking Prankster's Blog I linked for you and the Govt's announcement he linked in his Blog, too:
https://www.gov.uk/government/news/new-measures-to-protect-consumers-from-debt-claims
And a printed copy of the POFA Schedule 4 and highlight paragraph 8 and 9 and point out that CEL do not use compliant 'Notice to Keepers' (their choice because they can't meet the 14 days strict timeline for service of that document). But that choice of CEL's means they MUST instead have evidence of who was driving. They do not, so why should you be out of pocket because they haven't bothered with the one law that they have to follow to pursue a registered keeper?
You should use this opportunity (and please see it as an opportunity) to argue how unreasonable this entire claim was and as such, you politely request an Order for the Claimant to pay your costs for attending (travel, parking, missed wages or loss of leave AND the £255 Court fee in bringing this set aside case, despite not being shown to be liable for any parking charge at all). Say that this would bring you back to the position you would have been in, had the Claimant not sneakily tried to get a CCJ without your knowledge, with not only no due diligence but also no cause of action against you.
Basically once set aside, CEL can then proceed by following any Order set by the court for exchange of evidence, but as keeper you can continue to defend on various points, including 'no POFA = no keeper liability'.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hello!
I just wanted to update you on the outcome of the set aside hearing today – it went very well and I’ve summarised the points the judge made. I hope they all make sense and if any of it doesn’t, do point it out! All made possible by the help of you lovely, knowledgeable and helpful people - I'm extremely grateful.
The judge started by asking me about the DVLA issue which I explained honesty as being a poor level of admin by me when I was going through a very difficult time. I did mention that I didn’t believe the claimant has gone to much effort to find where I was living in the 15 months the process took, and also added that the DVLA record is only useful in any case if they can prove I was the driver (as claimant doesn’t comply with POFA Section 4 and Claimant can’t pursue me as the keeper).
Judge then quickly moved onto the following: -
1) The judge ordered a strike out of the claim due to CPR Part 3.4
(a) that the statement of case disclosed no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; and
(c) that there has been a failure to comply with a rule, practice direction or court order.
2) The judge then said the claimant can file and serve an amended claim providing it complies with CPR Part 16; if it does submit a new claim then I need to send my defence to the court and the claimant to arrive 3 weeks after the particulars (I think this means 3 weeks from the date he writes out to us following today – is this correct?) [he mentioned 'para 3' here – in CPR Part 16 this refers to the statement of value – would this be right or is he referring to something else?]
3) if the claimant fails to submit a compliant claim, then they will be in default and the claim will stand dismissed without further order.
4) the set-aside has been granted and the claimant ordered to pay my application costs of £255 in 14 days ( is that from today and can the claimant appeal this?). [I was so taken a back I didn't have the bottle to ask for any more!]
So pleased with this and that I get a chance to respond to all this properly!
Quick question - In terms of the CCJ, is it the court that gets it removed from my credit file? How does that process work and how long does it take?
xx0 -
Hahahahaha! Now THAT is a major result for a set aside hearing! Love it!! You got the icing on the cake!
Yes the court ensures the CCJ is removed promptly but I am not sure how soon they do so.
We have another new poster with a similar situation today, could you help her with your experience & advice please?!
https://forums.moneysavingexpert.com/discussion/5607816
They are stressed by this but again if they follow what you did and show the Judge the sorts of things you did, they might get a similar outcome. Also, if you would be happy to contact that person and let them have a copy of the Order when you get it (the piece of paper setting out this outcome for you) they can use that to support their own case ''Look Sir/Madam, this is a set aside in similar circumstances, same claimant, same sort of escalated 'parking charge' without liability established, heard by xxxx court only last month, claim struck out, £255 fee ordered to be paid by this same Claimant who cannot hold registered keepers liable''.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
yes - I'll do that now :-)
x0 -
If you could also show your Order here when you get it, and the Claim number and Court and Judge's name, other people can also use it to support their CEL set asides in future. This is a real result you know.
Well done!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
I will do! Thanks so much!
xx0 -
Well done Saggi - a fair and just result!0
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Hello again,
I promised to provide my documents and some details from the experience: -
1) I sent in my set-aside on 18 Jan, a notice of transfer to my local county court was issued 20 Jan; notice of hearing was issued 9 feb; hearing was 23 Feb
2) Draft order text is here: -
IN THE XXXXXXXXXX COUNTY COURT
Claim No. XXXXXXXXXX
BETWEEN:
XXXXXXXXX Claimant
-- and --
XXXXXXXXXXX Defendant
_____________________________________
DRAFT ORDER
______________________________________
IT IS ORDERED THAT:
Upon reading the Defendant's application dated XXXXXXXXXX.
It is ordered that:
1. The judgment dated XXXXXXXX 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.
3) Witness statement text is here: -
IN THE XXXXXXXXXXXXXX COUNTY COURT
Claim No. XXXXXXXXX
BETWEEN:
XXXXXXXXXX Claimant
-- and --
XXXXXXXXXXX Defendant
_____________________________________
WITNESS STATEMENT
______________________________________
I am XXXXXXXXXX and I am the Defendant in this matter.
This my supporting Statement in support of my application dated XXXXXXX to:
· Set aside the Default Judgement dated XXXXX 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 in XXXXXX. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXXXX when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (XXXXXXX). However, I moved to a new address 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.
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 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 do not know what the Default Judgement relates to.
1.4. On XXXXXXXX I attempted to contact the Claimant using information given to me by XXXXXXX County Court. I was not able to get through to a member of the Claimant’s staff to discuss, nor have I received a response to my numerous answer phone messages left on the Claimant’s legal department answer-phone. 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.
1.5. 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.
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 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 [name of 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 a 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: xxxxxxxxxxxxxx
Dated: XXXXXXXXXX
Signed: ________________________________
4) Both the Draft Order and the Witness statement were sent to the court where the CCJ was issued along with an application notice NS244 and the fee. I sent 3 copies of the pack as required.
5) Claimant wrote to me during this time saying they would dispute the set-aside and if the set-aside was successful they would ask judge to restore the claim to a defended claim. Their letter was dated 13 Feb.
6) Hearing took around 10 minutes. District Judge Falvey was sitting. Claimant didn't show. I posted the details of the order in an earlier post.
7) The judge did ask me about in the hearing about the address update not being made to DVLA and I answered honestly about my personal circumstances at the time. BUT he set-aside as the claimant put in such a poor claim it didn't meet the civil procedures regulations. This is less relevant for the witness statement (I didn't have enough info to add it there) but would be a good one to go for in addition, in a defence statement, if the Claimant does file and re-serve.
xxx0
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