Advice applying for a set aside

nicolanicola

Thanks everyone for all your help. I'm 5 weeks pregnant today (yipee) and going through some bad symptoms at the moment. Yesterday sickness, migraine and severe eye pain that sent me to A&e! So I'm am trying to remain calm over all this and not get panicky.

So, after reading all the threads in the newbie section, my worry is showing I have a chance of defending the original charge.

I appealed against the parking change at the time explaining that their paybyphone app wasn't working. When I got to work I tried again. I then rang paybyphone about it and they couldn't find the car park in their database. I assured them it was them, I used this car park daily. They didn't really know what to do so I got off the phone and hoped it'd be ok. I got back to my car and had the PCN.

So I have admitted I was the driver by way of the above appeal. I therefore don't see how I can have a defence against the PCN. From the posts I've read everyone has used the fact the Co can't prove the registered keeper was the driver.

DoaM

Part of your set aside (and your defence going forward - assuming the SA is granted) will be Frustration of contract. You tried to comply with the T&Cs of parking but were unable to.

Coupon-mad

nicolanicola wrote: »

So I have admitted I was the driver by way of the above appeal. I therefore don't see how I can have a defence against the PCN. From the posts I've read everyone has used the fact the Co can't prove the registered keeper was the driver.

Off the top of my head, maybe 20% of defences on here are from drivers like you, all with a good case. Mostly registered keepers because that's how we play it from the start, but like you, lots and lots of people appeal before researching and give that away.

It doesn't mean you have no defence and doesn't mean a Judge would not find in your favour if you understand the defence 'argument'.

Try searching this forum for 'defence phone app', or 'defence RINGO' or 'defence frustration'.

nicolanicola

I've found a couple of posts, thanks. I've contacted my house insurance company as I think I may be entitled to free legal cover. I'm waiting to hear back from them.

It all seems a minefield to me, so I'm hoping I can find a solicitor to deal with it all. I don't want to make a stupid mistake that costs me.

Coupon-mad

If you have free legal cover, great! I used mine to sue Monarch once and got my compensation for flight delay in 2010 that they'd been dragging their heels on.

As long as the legal cover people know about parking cases/defences, and are not blinded by the Beavis case.

nicolanicola

Thanks all for the pointers. This is my claim so far:

I am XXXX XXXX and I am the Defendant in this matter. This my supporting Statement in support of my application dated XX XXXX 2017 to:

1. Set aside the Default Judgement dated XX December 2016 as it was not properly served at my current address and order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;

2. Order for the original claim to be heard at a re-hearing.

1. Default Judgement

1.1. The Claimant obtained a Default Judgement against the Defendant on XX June XXXX. The Defendant is aware that the Claimant is XXXX Ltd, represented by Gladstones Solicitors and that the claim is in respect of an unpaid Parking Charge Notice from the XX XXXX 2016 at XXX XXX, XXXX. The Defendant further contests this charge for the reasons outlined in Part 2 of this defence.

1.2. The claim form was not served at the Defendant’s current address and The Defendant thus was not aware of the Default Judgement until XX July 2017.

1.3. The Defendant understands that this Claim was served at, XXXXX. However, The Defendant moved to a new address at, XXXX on the XXXX. In support of this The Defendant can provide a scanned copy of the vehicle’s V5C log book which shows the details of the registered keeper, a solicitor’s completion statement showing the date of completion and confirmation from Kirklees Council showing The Defendant’s updated details for the purposes of paying Council tax. All are attached at Exhibit X.

1.4. The Defendant believes the Claimant has behaved unreasonably in pursuing a claim without ensuring they held the Defendant’s correct contact details at the time of the claim. The Claimant used information that was at the time ten months out of date.

1.5. Furthermore, the Claimant did not attempt to contact The Defendant by any other means, despite them having The Defendant’s email address. The Defendant appealed against the PCN via an online form in which they included their email address. The Claimant did not attempt to contact the Defendant via this method of communication when they did not get any response via the postal service

1.6. According to publicly available information The Defendant’s 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.

1.7. The Defendant notes that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” The Minister added 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.”.

1.8. The fact that the Claimant had The Defendant’s email address is evidence that they have digital means to contact the The Defendant.

1.9. On the basis provided above The Defendant would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim. Nor did they fulfil their duty in this digital age by using The Defendant’s email address to notify them of the Claim.

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

2. Order for the original claim to be heard at a re-hearing

The Defendant is aware that the claim is for an unpaid Parking Charge Notice (PCN). The Defendant contends that they are not liable for the parking charge and the grounds for this are laid out below in further detail, and in summary are:
• Unclear, ambiguous, inadequate and lack of International Parking Community (IPC) compliant signage
• No contractual agreement with the driver
• Confusing contravention of “No ticket displayed.” when paybyphone method does not issue tickets
• Faulty payment method


Summary of Events

2.1. The Defendant was, at the relevant date, the registered keeper of the vehicle in question registration number XXXXXX. Below is a summary of The Defendant’s version of the events.

2.1.1. The Defendant had parked at this car park previously and always paid via the PayByPhone iPhone app. See exhibit X. The Defendant parks in the town centre several times a week and finds it convenient not having to carry spare change. The Defendant therefore always pays via the PayByPhone app. See exhibit X.

2.1.2. On day the PCN was issued The Defendant attempted to pay via the app as usual whilst walking out the car park. The app would not recognise the location number for identifying the car park. The Defendant looked at the PayByPhone sign to check the car park location number was correct, which it was. The Defendant tried several times further and was unsuccessful. The Defendant was now late for work and proceeded to walk to work whilst continuing attempting to pay via the app.

2.1.3. When the Defendant got to work, the app still was not working. The Defendant then called the PayByPhone Helpline. Records of which are in exhibit X. The call centre were also struggling to find the Car Park and stated they were having problems with their system. The Defendant was unable to leave work on that day until 2pm.

2.1.4. On the Defendant arriving back at their car, they discovered that had a PCN notice.

2.1.5. That evening, the Defendant proceeded to follow the instructions on the PCN to appeal. The Defendant appealed via the online form on their website, supplying her email address and reasons for appeal

2.1.6. The Defendant checked their email regularly including their spam folder waiting for a response back from SIP Parking.

2.1.7. The Defendant did not receive any email back. The Defendant thus assumed they’d been successful in their appeal.

2.1.8. The Defendant notes that SIP state they emailed the Defendant back with the result of The Defendant’s appeal. The Defendant, however, did not receive this email.

2.1.9. Had the Defendant received the result of this appeal, the Defendant would have then have been in a position to submit a further appeal to the Independent Appeals Service (IAS)

2.1.10. The failure of the PayByPhone app to work and indeed, the failure of the software the PayByPhone’s telephone representative was using is not the Defendant's responsibility. It is not reasonable in these circumstances for the Defendant to assume any more obligations for making the payment. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

nicolanicola

Do I need to get a copy of the Court documents so I can see what their claim says so I can dispute their claims? If so, who do I write to? Is it their Solicitors? I have looked through the Newbies thread for some clues but nothing jumping out at me.

nicolanicola

Context: I foolishly appealed against a PCN and as a result cannot use the fact they don't know who the driver was. Th CCJ was registered last month but all correspondence had been sent to old address. My defence is frustration of contract, I tried to pay by PayByPhone as I do every day when parking, on this occasion it didn't work.

---

WITNESS STATEMENT

---

I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience.

In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

This my supporting Statement in support of my application dated XXXXXXX to:

1. Set aside the Default Judgement dated XX December 2016 as it was not properly served at The Defendant’s current address and order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;

2. Order dismissing the Claim

1. Default Judgement

1.1. The Claimant obtained a Default Judgement against the Defendant on XX June 2017. The Defendant is aware that the Claimant is SIP Parking Ltd, represented by Gladstones Solicitors and that the claim is in respect of an unpaid Parking Charge Notice from the XX November 2016 at XXXXX. The Defendant further contests this charge for the reasons outlined in Part 2 of this defence.

1.2. The claim form was not served at the Defendant’s current address and The Defendant thus was not aware of the Default Judgement until checking their credit file in XX July 2017.

1.3. The Defendant understands that this Claim was served at, XXX. However, The Defendant moved to a new address at, XXX on the XXXX 2016. In support of this The Defendant can provide a scanned copy of the vehicle’s V5C log book which shows the details of the registered keeper, a solicitor’s completion statement showing the date of completion and confirmation from Kirklees Council showing The Defendant’s updated details for the purposes of paying Council tax.

1.4. The Defendant believes the Claimant has behaved unreasonably in pursuing a claim without ensuring they held the Defendant’s correct contact details at the time of the claim. The Claimant used information that was at the time ten months out of date.

1.5. Furthermore, the Claimant did not attempt to contact The Defendant by any other means, despite them having The Defendant’s email address. The Defendant appealed against the PCN via an online form in which they included their email address. The Claimant did not attempt to contact the Defendant via this method of communication when they did not get any response via the postal service

1.4. According to publicly available information The Defendant’s 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.

1.5. The Defendant notes that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” The Minister added 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.”.

1.6. The fact that the Claimant had The Defendant’s email address is evidence that they have digital means to contact the The Defendant.

1.7. On the basis provided above The Defendant would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim. Nor did they fulfil their duty in this digital age by using The Defendant’s email address to notify them of the Claim.

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

1.9. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.


2. Order dismissing the Claim
Summary of Events
2.1. The Defendant was, at the relevant date, the registered keeper of the vehicle in question registration number XXXXXX. Below is a summary of The Defendant’s version of the events.

2.1.1. The Defendant had parked at this car park previously and always paid via the PayByPhone iPhone app. See exhibit X. The Defendant parks in the town centre several times a week and always pays via the PayByPhone app. See exhibit X.

2.1.2. On day the PCN was issued The Defendant attempted to pay via the app as usual whilst walking out the car park. The app would not recognise the location number for identifying the car park. The Defendant looked at the PayByPhone sign to check the car park location number was correct, which it was. The Defendant tried several times further and was unsuccessful. The Defendant was now late for work and proceeded to walk to work whilst continuing attempting to pay via the app.

2.1.3. When the Defendant got to work, the app still was not working. The Defendant then called the PayByPhone Helpline. Records of which are in exhibit X. The call centre were also struggling to find the Car Park and stated they were having problems with their system. The Defendant was unable to leave work on that day until 2pm.

2.1.4. On the Defendant arriving back at their car, they discovered that had a PCN notice.

2.1.5. That evening, the Defendant proceeded to follow the instructions on the PCN to appeal. The Defendant appealed via the online form on their website, supplying their email address and reasons for appeal

2.1.6. The Defendant checked their email regularly including their spam folder waiting for a response back from SIP Parking.

2.1.7. The Defendant did not receive any email back. The Defendant thus assumed they’d been successful in their appeal.

2.1.8. The Defendant notes that SIP state they emailed the Defendant back with the result of The Defendant’s appeal. The Defendant, however, did not receive this email.

2.1.9. Had the Defendant received the result of this appeal, the Defendant would have then have been in a position to submit a further appeal to the Independent Appeals Service (IAS)

Frustration of Contract

2.1. The failure of the PayByPhone app to work and indeed, the failure of the software the PayByPhone’s telephone representative was using is not the Defendant's responsibility. It is not reasonable in these circumstances for the Defendant to assume any more obligations for making the payment.

2.2. The fact that The Defendant made reasonable endeavours and cannot be penalised under UK contract law is also a circumstance supported by trite law. Authority for this is the case of Jolley v Carmel Ltd [2000] 2 EGLR 154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

2.2.3 Even if the Court believes a contract potentially existed, the Law Reform (Frustrated Contracts) Act 1943 applies. It states at 1.(1) ''money due but not paid before frustration ceases to be payable'' and ”a contract may be discharged on the ground of frustration. The unforeseeable frustration brings a contract to an end forthwith and automatically”.

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

2.3.1. 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.

2.3.2. 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.

2.4. In addition to the original ‘parking charge’, believed to be £100, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported ‘Solicitor’s Costs’ of £162 which The Defendant submits have not actually been incurred by the Claimant.

Unenforceable Penalty
2.4.1. The added 'legal' cost is an artificially invented figure (carefully avoided in the Beavis case where only £85 was pursued, presumably to avoid just such scrutiny). This is a cynical attempt to circumvent the Small Claims costs rules using double recovery.

2.4.2. 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.

2.5. 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.

2.6. 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.

Coupon-mad

If you defend the claim yourself, in most home policies, you can't then use your legal cover IIRC. So you should call your insurer in the morning to be sure whether or not they can assist and do it for you.

nicolanicola

Coupon-mad wrote: »

If you defend the claim yourself, in most home policies, you can't then use your legal cover IIRC. So you should call your insurer in the morning to be sure whether or not they can assist and do it for you.

Turns out I'm not covered under my home insurance policy 😞.

Can anyone please therefore give me feedback on my above witness statement?