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Default CCJ - 9 'PCNs' - Homeguard/14 Services - Help!?
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S3JOJ
Posts: 10 Forumite
Hi Everyone,
I've posted about the same thing on another popular parking forum, so apologies if you're a member there too! I will try to condense it here since I'm a little further along.
A few weeks ago, I discovered as the result of a credit check that a default CCJ was registered against me for 9 'PCNs' issued by Homeguard t/a 14 Services at an address I left 18 months ago. I have since taken actions to gather all of the information I can and intend to pursue a set-aside on the grounds that I did not receive the paperwork, and would have stood a good chance of defending the claim.
Below is my first draft defence, to be included with the set-aside application. Any feedback would be greatly appreciated. I expect there are elements that are irrelevant or that could be presented far better. Thanks!
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My name is XXX, the defendant in this claim.
It is admitted that the defendant was the registered keeper of the vehicle noted at the times of the alleged offences.
However, the claimant has no cause of action against the defendant on the following grounds:-
1. Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.
2. The claimant alleges that the car was parked “in breach of terms and conditions” with conflicting specifics “Not Parked in an authorised Parking bay” and “Failure to display a valid permit” in the same location - as thus no valid offence has been established.
3. The proper claimant is the landholder. Strict proof is required that there is a proper chain of contracts leading from the landholder to Homeguard Ltd.
4. Homeguard Ltd are not the lawful occupier of the land. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
5. The signage around the site was small, unclear and not prominent and did not meet the standards of the Independent Parking Committee (IPC) code of practice. The claimant was a member of the IPC at the time and committed to this code of practice. Therefore, no contract has been formed with the driver(s) to pay £100 or any other fees.
6. No contract, terms and conditions or sum payable was ever accepted by any driver.
7. The tenancy agreement held by the defendant for the length of tenancy, with no amendments in that period, in no way forbids parking in any part of the site, nor does it make any mention of the claimants authority to operate a parking scheme. In February 2017, a letter outlining amendments to the tenancy agreement in regards to parking changes was sent to current tenants, thus confirming that these changes were not properly communicated and agreed to previously.
8. Any such information regarding access or parking, that may, or may not, have been included in the lease of the property, were never communicated in any way to the defendant.
9. In both Pace v Mr N [2016] C6GF14F0 and Link Parking v Ms P [2016] C7GF50J7 it was found that the parking company could not override the tenant’s right to park by requiring a permit to park.
10. In Jopson vs Homeguard [2016] B9GF0A9E it was established by Senior Circuit Judge Charles Harris QC in regards to a lease held in the same site as in this claim during the same time period, that the claimant could not impose it’s terms in conflict with the existing lease. This argument can be logically extended to the tenancy agreement held by the defendant.
11. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement or even any licence to park without a permit, the Beavis case does not assist the claimant and in fact, supports my defence. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant. As the Supreme Court in the Beavis case held, ParkingEye would not have been able to recover any sum without agreement on the charge and any issue of trespass would be limited to the landowner themselves claiming for a nominal sum.
12. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
I've posted about the same thing on another popular parking forum, so apologies if you're a member there too! I will try to condense it here since I'm a little further along.
A few weeks ago, I discovered as the result of a credit check that a default CCJ was registered against me for 9 'PCNs' issued by Homeguard t/a 14 Services at an address I left 18 months ago. I have since taken actions to gather all of the information I can and intend to pursue a set-aside on the grounds that I did not receive the paperwork, and would have stood a good chance of defending the claim.
Below is my first draft defence, to be included with the set-aside application. Any feedback would be greatly appreciated. I expect there are elements that are irrelevant or that could be presented far better. Thanks!
--
My name is XXX, the defendant in this claim.
It is admitted that the defendant was the registered keeper of the vehicle noted at the times of the alleged offences.
However, the claimant has no cause of action against the defendant on the following grounds:-
1. Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.
2. The claimant alleges that the car was parked “in breach of terms and conditions” with conflicting specifics “Not Parked in an authorised Parking bay” and “Failure to display a valid permit” in the same location - as thus no valid offence has been established.
3. The proper claimant is the landholder. Strict proof is required that there is a proper chain of contracts leading from the landholder to Homeguard Ltd.
4. Homeguard Ltd are not the lawful occupier of the land. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
5. The signage around the site was small, unclear and not prominent and did not meet the standards of the Independent Parking Committee (IPC) code of practice. The claimant was a member of the IPC at the time and committed to this code of practice. Therefore, no contract has been formed with the driver(s) to pay £100 or any other fees.
6. No contract, terms and conditions or sum payable was ever accepted by any driver.
7. The tenancy agreement held by the defendant for the length of tenancy, with no amendments in that period, in no way forbids parking in any part of the site, nor does it make any mention of the claimants authority to operate a parking scheme. In February 2017, a letter outlining amendments to the tenancy agreement in regards to parking changes was sent to current tenants, thus confirming that these changes were not properly communicated and agreed to previously.
8. Any such information regarding access or parking, that may, or may not, have been included in the lease of the property, were never communicated in any way to the defendant.
9. In both Pace v Mr N [2016] C6GF14F0 and Link Parking v Ms P [2016] C7GF50J7 it was found that the parking company could not override the tenant’s right to park by requiring a permit to park.
10. In Jopson vs Homeguard [2016] B9GF0A9E it was established by Senior Circuit Judge Charles Harris QC in regards to a lease held in the same site as in this claim during the same time period, that the claimant could not impose it’s terms in conflict with the existing lease. This argument can be logically extended to the tenancy agreement held by the defendant.
11. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement or even any licence to park without a permit, the Beavis case does not assist the claimant and in fact, supports my defence. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant. As the Supreme Court in the Beavis case held, ParkingEye would not have been able to recover any sum without agreement on the charge and any issue of trespass would be limited to the landowner themselves claiming for a nominal sum.
12. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
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Comments
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I'm no expert on the court stuff, but it looks OK to me.
Did you appeal the original PCN, and did you inform the DVLA that you had changed address?
I ask this because you may be able to show the parking scammers did not do enough to contact the keeper which could be considered unreasonable. People move home all the time so it would be reasonable to assume no response means they were not diligent in finding if the keeper was still resident there.
Can you find out if the current residents sent the paperwork back to the scammers marked, no longer at this address? If so you can show they knew, or should have known you had moved so should have made more effort to find you.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Why are you mentioning VCS in point 4? (Proof read until your eyes bleed before including with the set-aside).
On that subject ... do you need to include a defence with a set-aside request? I thought you needed to include why the set-aside should be made? (i.e. no paperwork ever received from the claimant).0 -
I'm no expert on the court stuff, but it looks OK to me.
Did you appeal the original PCN, and did you inform the DVLA that you had changed address?
I ask this because you may be able to show the parking scammers did not do enough to contact the keeper which could be considered unreasonable. People move home all the time so it would be reasonable to assume no response means they were not diligent in finding if the keeper was still resident there.
Can you find out if the current residents sent the paperwork back to the scammers marked, no longer at this address? If so you can show they knew, or should have known you had moved so should have made more effort to find you.
I appealed 1 of the 9 from an online template and didn't take it any further once it had been rejected.
The DVLA were informed but perhaps not immediately and given the 'PCNs' were from long before we moved, I'm guessing they would have been within their rights to use the DVLA data from the time. I guess I should just allude to the fact that they could have tried harder, given no response to the court papers? Or will the court not care?
New tenants won't confirm what they did or didn't do with any mail.Why are you mentioning VCS in point 4? (Proof read until your eyes bleed before including with the set-aside).
On that subject ... do you need to include a defence with a set-aside request? I thought you needed to include why the set-aside should be made? (i.e. no paperwork ever received from the claimant).
Jeez, thanks - that was a silly copy/paste error. I hope I would've spotted it before submitting but I'm glad you did in case not!
My understanding is that "I didn't receive the paperwork" is not enough and I need to prove I had a defence. Attaching a defence seems to be the most sensible / recommended way to do this. There's also the hope that 14S will see the defence, and agree to the set aside without argument and drop the case given they've already lost 2 cases in the same location in the last 12 months (however very unlikely!)0 -
I agree - I did that with one case and the Judge agreed to set it aside without an interim set aside hearing (unfortunately it still cost the fee - but that gets added for you to reclaim). The Judge went straight to ordering the Claimant to send their WS and evidence to the correct address and the defendant then had time to defend (an easy step because he'd already written it, like you have).My understanding is that "I didn't receive the paperwork" is not enough and I need to prove I had a defence. Attaching a defence seems to be the most sensible / recommended way to do this.
Had you thought about a counter-claim, as you said it's the same location as the June 2016 'Jopson' Appeal court case so why they think that a county court is going to go against that decision, and why they then processed your data as far as a claim, is obviously in the hope of a sneaky CCJ which is exactly what has happened. Not justified, no reasonable cause to process your data (a counter claim has most weight if they obtained your data from the DVLA - did they, or did you give it to them in an appeal of all 9 PCNs every time?).
Or, you could deal with this claim, win this, THEN sue...you have 6 years!
BTW alongside this, send an email to the DVLA asking how many times and when, did this firm get your data?
You can then use that in your defence and/or counterclaim, especially if they didn't get the data each and every time, at £2.50 a pop, because they can't use the same data for more than one PCN.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Do what Coupon-mad said, especially finding out from DVSA when and for which PCNs Homeguard / 14 Services obtained your personal information. You may also be able to sue Homeguard / 14 Services for misusing your personal data. Please see posts #1 and #13 in this thread for information about the Data Protection Act:
https://forums.moneysavingexpert.com/discussion/55853880 -
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Do what Coupon-mad said, especially finding out from DVSA when and for which PCNs Homeguard / 14 Services obtained your personal information. You may also be able to sue Homeguard / 14 Services for misusing your personal data. Please see posts #1 and #13 in this thread for information about the Data Protection Act:
https://forums.moneysavingexpert.com/discussion/5585388
Who contracted Homeguard / 14 services? it may be worth joining them to the claim as wellFrom the Plain Language Commission:
"The BPA has surely become one of the most socially dangerous organisations in the UK"0 -
Thanks for all the replies!
If they did process my data each time legally - are they in the clear in terms of using it for the claim a year later? Or can I suggest that they should've done more due diligence before issuing the claim either beforehand or after not receiving a reply to the letter before claim?
Another quick question; my first defence point deals with PofA in that the NtKs didn't say anything about liability passing to the keeper if a driver wasn't named. Do I need to state this only applies to the first 3 (the rest have the correct wording)? Or should I leave it broad? Or is there a wider PofA implication that I can rely on?
Thanks!0 -
Or can I suggest that they should've done more due diligence before issuing the claim either beforehand or after not receiving a reply to the letter before claim?
NO because under UK law , last known address is the norm0 -
twhitehousescat wrote: »Or can I suggest that they should've done more due diligence before issuing the claim either beforehand or after not receiving a reply to the letter before claim?
NO because under UK law , last known address is the norm
Thank you - as I thought.0
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