Advice applying for a set aside

Coupon-mad

I would remove 2.3.2 because after the 2015 Beavis case, ''no loss' has no legs.

I would replace it by saying:

The Claimant may try to rely on the factually dissimilar case of ParkingEye Ltd v Beavis [2015] UKSC 67 but this has no application and indeed at the Court of Appeal it was identified that an ordinary transaction (i.e. payment of a quantified small parking tariff) was 'completely different' and could be judged against the usual penalty rule, which was certainly 'engaged' in parking charge cases. In my case there was no 'agreement on the charge' of £100, only agreement on the tariff, which the Claimant's own system made impossible to pay. In fact I did not even see mention of £100 tariff or charge, which I submit must have been buried in small print.

And these two points seem to conflict about the date of the CCJ?

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.

nicolanicola

Thanks Coupon mad for your feedback.

Apologies if this is answered elsewhere, I have trawled the newbies thread for setting aside a default judgement. Is the process: The judge considers my set aside application and my witness statement and decides whether my case has legs. If it does then s/he sets a court date for it to be heard. I then have to supply further evidence.

So based on my understanding, this witness statement is just to get me past the first hurdle, i.e. that my case can be heard in court?

Is this ok for a witness statement do you think? This is my amended version:

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STATEMENT

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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 31 July 2017 to:

1. Set aside the Default Judgement dated XXXXX as it was not properly served at The Defendant’s current address

2. Order for the original claim to be dismissed

1. Default Judgement

1.1. The Claimant obtained a Default Judgement against the Defendant on XXXXX. 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 XXXXX 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 on 8th July 2017. Since the 8th July, the Defendant had been trying to obtain details of the Claimant, which took over week, and writing their Witness Statement.

1.3. The Defendant understands that this Claim was served at, XXXXX. However, The Defendant moved to a new address at, XXXXX on the XXXXX 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 an address that was at the time eleven 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.

1.11. 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 Solicitor’s 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 1. The Defendant parks in the town centre several times a week and always pays via the digital means. See exhibit 2.

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 Defendant relies on the app in this digital age. 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. 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. Records of the above call are being sought from the Mobile Phone company. The Defendant is in contact with the Mobile Phone company to obtain itemised calls They have advised it can take up to 40 days, so the Defendant didn’t want to delay matters in submitting their claim.

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

2.1.6. 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

2.1.7. 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. As The Defendant was unaware of the claim, it would be in the interests of justice to allow The Defendant the opportunity to defend it, which is in line with the overriding objective (CPR 1.1).

Frustration of Contract
2.2.1. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.

2.2.2 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.

2.2.3. 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.

2.2.4. 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
2.3.1. The Defendant further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.3.2. The PCN stated the contravention as “No ticket displayed.” This cannot be a contravention when a driver uses the Pay by Phone option, as the Defendant did.

2.3.3. It is denied that any contravention of ''no ticket displayed'' occurred or can have occurred when using the Pay by Phone option, the failure of which was not within The Defendant’s control. Even if a contract was potentially formed it was frustrated by the unexpected and uncommunicated failure of the Claimant's app, and it is trite law that no party can be held liable for breach to another under such circumstances of frustration of contract.

Lack of Standing by Claimant
2.3.4. 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.

2.3.5. The Claimant may try to rely on the factually dissimilar case of ParkingEye Ltd v Beavis [2015] UKSC 67 but this has no application and indeed at the Court of Appeal it was identified that an ordinary transaction (i.e. payment of a quantified small parking tariff) was 'completely different' and could be judged against the usual penalty rule, which was certainly 'engaged' in parking charge cases. In the Defendant’s case there was no 'agreement on the charge' of £100, only agreement on the tariff, which the Claimant's own system made impossible to pay. In fact the Defendant did not even see mention of £100 tariff or charge, which the Defendant submits must have been buried in small print.

2.3.7. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

2.3.8. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

Unenforceable Penalty
2.4.1. The Defendant submits 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.

2.4.2. The added 'legal' cost presumed to be the extra £162 on top of the £100 charge 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.

2.4.3.The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

Conclusion
2.5.1. On the above basis The Defendant believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

2.5.2. The Defendant asks the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

2.5.3. In order to make informed decisions and statements in The Defendant’s defence as keeper of the a vehicle, The Defendant will require copies of all paperwork and pictures of all signs from the Claimant.

I believe that the facts stated in this Witness Statement are true.

Full name:

Dated 31 July 2017

Signed: __________________________________

nicolanicola

I'm planning on posting this tomorrow. I'd be really grateful if anyone could have a look through and see if it seems ok.