Excel PCN NTK - Now a Default CCJ

abedegno

Below is my draft witness statement for the setaside - unsure if I should include point 1.8, or perhaps reword it - it calls into question issues with Excel accordance with pre-action protocol and Royal Mail (Covid related?)

WITNESS STATEMENT OF XXX

I am X and I am the defendant in this matter. This is my supporting statement to my application dated X August 2020 requesting to:

a. Set aside the default judgment dated XX July 2020 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

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

DEFAULT JUDGMENT

1.1. I was the registered keeper of the vehicle at the time of the alleged offence.

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on XX July 2020. I am aware that the Claimant is Excel Parking Services Ltd, and that the assumed claim is in respect of unpaid Parking Charge Notices from the X March 2017, at the XXXX Car Park. I contest this charge for the reasons outlined in the attached draft defence.

1.3. The claim form was not served at my current address and I thus was not aware of the Default Judgement until 4 August 2020 following a notification from an automated credit report update; as found in Schedule (X)

The address on the claim is XXXX. I moved to my current address at XXXX on the 6th August 2019. In support of this, I can provide a scanned copy of my mortgage agreement, alongside a council tax and utility bill; Schedule (X).

1.4. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.4.1 I discovered a CCJ was lodged onto my credit file on the 4 August 2020.

1.4.2 On 5th and 7th August I contacted the County Court Business Centre to obtain relevant information relating to this default judgement; Schedule (X).

1.4.3 On 14th August 2020 I have wilfully submitted my case in order to set-aside this judgement and fairly present my case.

1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

1.6. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence despite no communication being received from the defendant for 3 years. This has led to the claim being incorrectly served to an old address and an irregular judgement.

1.7  In additional to the above, the last correspondence with the claimant was a letter from myself to them on the XX July 2017.  This letter denied the alleged debt and outlining the reasons why  The defendant failed to respond to this letter leading me to believe the matter was closed as no subsequent correspondence was received; Schedule (X)

1.8 Current mail forwarding is in place for the address XXXX and no forwarded correspondence was received by myself from the claimant including any pre-action protocol or court papers.  A letter from the Claimant notifying myself of the judgement and threatening bailiff action was successfully forwarded from the old address; Schedule (X)    

1.9. According to publicly available information, my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so-called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses."

The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.” Furtherance to points raised in 1.3 above.

1.10. Considering the above I was unable to defend this claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

KeithP

Para 1.7 - should be "The claimant failed to respond...".

henrik777

You still have mail forwarding after 3 years ?

abedegno

henrik777 said:

You still have mail forwarding after 3 years ?

No - it was 3 years from last correspondence from the parking company, less than 2 since I changed address.

abedegno

First cut of a draft defence using the defence templates and Coupon-Mads post above.  My main points are:

- Failure of the Ringo cashless parking service

- The car park was disallowed from being brought into use as required measures (lighting + screening) were not in place

- Missing/inadequate signage - as the car park was a building site and in the process of being relocated required signage was not in place, or adequately lit (as would be needed at 5:00am in March).

- Confusion over who the creditor is, there is a mixture of signage identifying VCS and Excel as the entity that controls/manages the property.

Trimmed for length, but I assume I should include all the boilerplate from the forum post abuse of process draft defence?

DRAFT DEFENCE

1. It is admitted that the Defendant was the registered keeper of the vehicle stated in the Particulars of claim, at the material time. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all, for the reasons stated below.

2. The Particulars of Claim provide insufficient detail for the Defendant to ascertain the nature of the case nor even the sum of money. Although the cause of action appears to be breach of contract and this is a Money Claim, the Particulars:

a) fail to state in what capacity the Claimants are entitled to recover any sum. The Claimants have not stated whether they own or manage the site, or otherwise.

b) fail to state the sum of the parking charge or ‘outstanding liability’ or provide any breakdown whatsoever of the alleged ‘contractual costs’ and interest.

All are denied but it is impossible to make an informed decision based upon such sparse particulars.

3. The figure claimed is vague but clearly includes double recovery of costs and thus the claim is tainted by an unrecoverable penalty element.  Whatever the ‘contractual charge’ may be is unclear but according to ParkingEye Ltd v Beavis [2015] UKSC 67 (ref paras 98, 193 and 198) all such costs must be wholly within the rationale of the parking charge itself (which cannot exceed the £100 ceiling set by the Claimant’s Trade Body).    ParkingEye had stopped adding unrecoverable 'admin/recovery' costs by the time of the Beavis case, following the earlier persuasive authority from the High Court (endorsed by the Court of Appeal who upheld the decision), in ParkingEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338, [ref para 419 -  https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html ] which says:

''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

4. Claims pleaded on this exaggerated basis have routinely been struck out ab initio in multiple County Court hearing centres and the direction of travel regarding the courts’ view of parking claims which include double recovery of ‘costs’ is established. Examples of such Judicial rulings are appended to this defence, from courts including (but not limited to) Southampton, Warwick, Skipton, Luton, Caernarfon, the Isle of Wight, Bradford, Willesden, Worthing, Bromley and Northampton.

See Appendix    (strike outs including the most recent, in Summer 2020).

 5. Whilst one single strike-out decision was recently appealed (Britannia v Semark-Julien) this bears all the hallmarks of a cherry-picked case where insufficient detail was known to the Judge, due to the unusual lack of defence and facts before the court, and that case is now proceeding to trial.  It is noteworthy that the appeal Judge made no finding about the matter of adding false ‘admin costs’ even though that was likely to have been what the appeal was seeking. Therefore, that judgment has no persuasive application to cases where sufficient facts are considered. Also, the application heard at the same time at Southampton Court (Britannia v Crosby 11.11.19) where full facts were available to strike out the claim and substantial defence and submissions were made, was not appealed. District Judge Grand’s decision in Crosby stands unopposed and his detailed rationale appears in the attached document, to assist the court.

6. This claim is wholly without merit. Accordingly, the Court is respectfully invited to strike out this claim pursuant to rule 3.4 (2)(a) and (b) of the Civil Procedure Rules 1998 and Practice Direction 3A, on the basis that:

i) the Particulars of Claim are incoherent, lack any cause of action or sum of money and make no sense (Practice Direction 3A, 1.4 (2) and CPR 16.5.

ii) the sum claimed in the tabular presentation of the claim is unduly inflated, thereby rendering the claim an abuse of the court process. This Claimant has seen the costs disallowed at most court hearing centres in 2019/20 and the Caernarfon strike-out Order (see Appendix) is testament to the fact that this Claimant is ‘forum-shopping’ and undoubtedly knows after repeated warnings that the substantial inflated ‘costs’ sum is unrecoverable.

7. Notwithstanding the above, the Defendant sets out her defence below as best she can in the circumstances. Save as admitted in this defence, she denies every allegation set out in the sparse Particulars of Claim and the Claimant is put to strict proof.

6.  The Defendant is not the only driver of this vehicle and the Particulars of Claim offer little to

shed light on the alleged breach, which relates to an unremarkable date some time ago. It is

not established thus far, whether there was a single parking event, or whether the vehicle was

caught by predatory ticketing and/or by using unsynchronised timings and camera evidence to

suggest a contravention. A compliant Notice to Keeper (‘NTK’) was not properly served in

strict accordance with section 8 or 9 (as the case may be) of the POFA.

7. The car park in question was undergoing material change as building works and the relocation of the car park was underway.  The claimant’s signage was missing, sparse and had not been replaced.  Signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was agreed by the driver.

8. In addition to the above, following later investigation, the signage at the entrance of the car park identifies Vehicle Control Services Ltd as the entity that “manage and control, this private property”.  This same signage is repeated throughout the site.  This is materially different from the claimant who identifies themselves at Excel Parking Services Ltd and therefore has no legal standing to bring this claim.

9. At the material time, the car park was being relocated and had only conditional approval with conditions which had not yet been discharged or met:

  a. Planning permission for the carpark was approved on 20 June 2011 for 3 years only and has expired without renewal (document: CHE_11_00144_FUL – Decision)

  b. Planning approval for the carpark to be relocated to the North of the land was only conditionally approved (document: CHE_16_00188_FUL- DECISION_NOTICE), and numerous conditions unmet at the material time:

  i. Planning condition 9 – “The temporary car park shall not be brought into use until a detailed lighting strategy and details of the proposed knee rail have been submitted to and approved in writing by the LPA. Such approved measures shall be implemented in full.”, has not been approved or the measures fully implemented (document: Planning Ref CHE/17/00028/DOC - Discharge of Condition 9)

  ii. Planning Condition 13 – “Prior to the use of the temporary car park, details shall be submitted to the Local Planning Authority for written approval indicating a screening barrier between the site and the A61 to shield vehicles and other lighting within the application site from the adjacent A61 dual carriageway. Details will also be required indicating the proposed layout of the car park and its access with particular regards to pedestrian provision”, has not been submitted, approved or implemented (image: Brewery Street Car Park Screening)

8. Signage indicates a 24-hour car park and cashless payment is available, yet the claimants listing on the RingGo cashless payment website advises opening from 6:00 to 21:00. 

a. As a result of this discrepancy attempts to make payment via RingGo to fail.

b. This discrepancy in opening times is misleading and lures drivers into using a carpark where cashless payment is not possible as the RingGo mobile application or telephone service will not permit payment to be made outside of the configured opening hours. As a result, drivers unwittingly incur incurring parking charges.

c. The inability to make payment creates an inordinate delay in the performance of the contract rendering contractual obligations impossible.

...

henrik777

abedegno said:

henrik777 said:

You still have mail forwarding after 3 years ?

No - it was 3 years from last correspondence from the parking company, less than 2 since I changed address.

1.8 Current mail forwarding is in place for the address XXXX and no forwarded correspondence was received by myself from the claimant including any pre-action protocol or court papers.  A letter from the Claimant notifying myself of the judgement and threatening bailiff action was successfully forwarded from the old address; Schedule (X)



I would suggest that needs clarified because, as a casual reader, i have no idea when mail forwarding was in place but you say it is current.

nosferatu1001

Just state mail forwarding was in place from X to Y date. Much much much simpler. 

1505grandad

DEFAULT JUDGMENT

Other numerous references to the highlighted word incorrectly contain a middle "e"

abedegno

- Fixed the spelling of Judgment
- Reworded the point on mail forwarding
- Changed defendant to claimant in witness statement
The defence references a number of appendix items (Strike outs) - where do If find these to include.
I will submit witness statement, draft defence, and the 6 point draft order - anything else I'm missing?
Thanks
Abe

Le_Kirk

Attached to this reply is the appendix to which you refer (I think).