Unknown CCJ with some complexities- please help

wdm1985

Hi Guys,

Firstly- you guys are a credit to society for providing so much advice to people on this site. It really has been an amazing resource. So far I have had a good read of Coupon-Mads advice, post 2 on the newbies thread as well as reading all of the Saggi1975 threads on a successful appeal. Our case is a little more complex so please do read on and I would be grateful for some advice.

I am writing to try and help my pregnant wife out (our first bambino is on the way!!!). We had applied for a new credit card to buy stuff for the upcoming arrival and to our surprise it was rejected. We are both doctors and there would be no reason to have bad credit- until we realised she had a CCJ in November which we knew nothing about. This has made her incredibly upset as not only are we trying to get stuff for the baby, we are also due to re-mortgage our first home.
Essentially my wife had received four tickets at our tower block over the period of 2015. 3 of these were for overstaying the allotted time in a visitors spot and one for not displaying a permit. We had been wrongly advised by other residents these were frivolous and unenforceable and the paperwork was kept for about six months before being destroyed.
This is where it gets complex. We received a redirected letter in Oct- I tried to post a pic but I am not allowed. Essentially it is for 4 tickets:
3 for staying over time in a visitors bay
1 for parking without a permit ( we did have one- it probably fell from the dash)
This was a letter before action

Given the amount of money involved my wife spoke to her friend who was a solicitor. She instructed him to negotiate on our behalf and he did so in October. After multiple back and forth we did not hear anything else from SCS or indeed our friend. As far as we are aware the last email/conversation went something like;
“If I do not here further on this matter I shall consider it resolved”
Fast forward to today and we have the CCJ. We received no court papers and no outcome of the verdict. To complicate things our family friend has moved to Brazil and I have not been able to contact him. My concern is that I have no record of the conversations between him and the Law firm- so I do not know if he admitted that my wife was the driver or just the registered keeper- which makes it hard to decide exact defence.

I have contacted the court and we have confirmed that the CCJ was issued by SCS on behalf of UKPC. I do not have any documentation pertaining to the case. I can prove that we had moved address in March 2016 and we had a full mail redirect in place for 12 months so there was no court papers delivered. If this had been the case we would have either paid or defended. (I know the right answer is to defend- my wife might have paid).
My issues before applying for a set aside:
1. We did enter into discussions with SCS through an intermediary but do not know how far this progressed. Is this an admission of guilt?
2. We have no email trail to see exactly what was said- I am desperately trying to get hold of our friend in the outback of Brazil.
3. Are we still in a position to be able to apply for a set aside? Personally I still believe we have a case. On the basis that one ticket was issued for not having a permit- we did and I still have it. It may have fallen off the dash which commonly happened.
Also the overstaying time at this block has previously been upheld by POPLA. I found this thread from last year
forums.moneysavingexpert. com /showthread.php?t=5434719
(there is a space in this to allow i to be accessed)

This relates to the apartment block that we actually lived in. POPLA agreed with the claimant and I have reached out to the person who won the case to see if they reply.
4. Can we ask for any further hearings to be held in a local court? My wife is now 17 weeks pregnant and has been quite unwell. This has been very stressful and upsetting for her and I don’t want her to have to travel anywhere far for this.


Ultimately- We just want to have the CCJ removed. I know to do get a set aside this we complete an N244 (The court has provided this to me already). My only concerns are what I have raised are above but I don’t think we have any other option. Would you guys be able to look at our defence statements etc if we go ahead?

This has come at such a bad time for us and its pretty stressful so help and support is very much appreciated.

Many thanks,

WDM

wdm1985

So we got an email from the guy who was acting on our behalf.

this is the last email he received from UKPC

Dear XXXX,

As you have reviewed the correspondence you will be aware that on one occasion there was no permit displayed, and that on the other occasions Ms XXXX was parked in a visitors bay in excess of the 18 hour maximum stay which is clearly indicated on site signage.

I am confident that if this goes to court the judge will rule in our favour. However, in the interest of saving further time and expense, we would be willing to settle the matter for £540 provided payment was made by 4pm on Friday 18th November.

Kind regards
XXXXXXX
Legal Advisor

Unit 29, 1-2 Denham Parade,
Oxford Road, Uxbridge,
Middlesex UB9 4DZ

So.... the court judgement was 12 days after the supposed deadline that UKPC had given us, which would suggest that they had filed the court papers even when mediation was taking place? Surely this is against code of practice.

wdm1985

I have enclosed below the draft for our motion to set aside the judgement.

I am xxxxxxxxxx and I am the Defendant in this matter.
This my supporting Statement in support of my application dated 25/07/2017 to:
· Set aside the Default Judgement dated November 2016 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 November 2016. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until 24th of July when I was doing a routine check on my credit file. I understand that this Claim was possibly served at an old address (xxxxx). However, I moved to a new address in March 2016. In support of this I can provide confirmation from xxxxx County Council showing my husbands updated details for the purposes of paying Council tax as well as proof from Royal Mail that a redirect was in-situ until the 5th of June 2017.
1.2. On the 25th July 2017 I contacted Northampton County Court to find out details of the Default Judgement. They were able to advise me that this was awarding to SCS Law on behalf of UKPC.
1.3.1 I had previously received a letter from SCS Law on the 14th October 2017 regarding a letter before action regarding four alleged parking charges in 2015. At which point a family friend and solicitor, Mr XXXXX was instructed to deal with Mr XXXX at UKPC. No evidence of the alleged contraventions was provided at any point. The last communication was received by Mr. XXXX on the 14th November 2016 asking for payment before 18th November 2016. No further communication was received.
1.3.2 Given that the court judgement was granted on the 30TH November 2016 this would suggest that UKPC had already instructed SCS Law to proceed with court proceedings despite being in mediation discussions with Mr. XXXX
1.4.1 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s 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.
1.5. 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.
1.6. Considering the above I was unable to defend this claim. 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. The claimant alleges that on one occasion no valid permit was on display. As the registered keeper I can produce the permit which does not stipulate which bay number the car was parked in. Indeed this permit was supplied by the Estates manager for XXXXXX apartments.
2.3. The claimant alleges on three occasions the registered keeper’s vehicle was parked for longer than the allowed time. I refer the court to POPLA appeal reference xxxxxxxxxxx. This is precedence for parking in this parking area. In this instance the case was not contested by UKPC on the following basis:
• Ambiguous, unclear, and misleading signage.
• No 'relevant obligation' nor 'relevant contract' under Schedule 4 of the POFA.
• No Landowner authority/contract - a managing agent is not the landowner.
• The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability
• This case can be distinguished from Parking Eye v Beavis which does not apply.
• Relies on the binding authority in Vine v Waltham Forest which was a Court of Appeal judgment, about a driver not seeing the terms and not deemed bound by them.
2.4. 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.
2.5. 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 must comply with 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.
2.6. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
2.6.1. 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.
2.6.2. 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.
2.6.3. 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.
2.6.4. 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 UKPC Ltd.
2.7. 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.
2.8. In order to make informed decisions and statements in my defence as keeper of the 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.


My only concern that is that Mr X who was involved on our behalf has stated that my wife was the driver

Herzlos

Did the address forwarding run out at some point?

The only way to get rid of the CCJ is to apply for a set-aside, explaining to the judge why you didn't respond (a combination of thinking you were mid mediation and not getting any paperwork - I wouldn't be surprised if SCS were communicating with you at an address that wasn't given to the court), and that you stand a reasonable chance of winning the case (it's almost certain against SCS).

You'll need to fork out about £255 to do so, but should get the money back from SCS when you win. There's unfortunately no other way to get rid of it now even if you pay it.

wdm1985

hi Herzlos- Many thanks for being the first to reply. No I have the paperwork to prove that the forwarding didn't run out. Also my aunt and uncle are the landlords and have passed any paperwork onto me. This is the second time this has happened to us- I myslef had a ccj for the same thing. Only knew about it when I got the verdict in post- again UKPC for our apartment. Not sure why I got the judgement on this occasion. given that their is an apartment 12 and a house 12 that could be a reason.

Do you think my arguement to set aside is ok. I am desperate for as much advice as possible. I have also tried to do as much as possible through reading the boards.

Herzlos

It's very much worth a shot - you were in correspondence with SCS and didn't know any claim had started, and you believe you'd win the defence based on <list of points from the newbies thread, including SCS being a serial litigant without appropriate rights>

wdm1985

Hi thanks- We were actually in discussion with the legal representative from UKPC- they had obviously already instructed SCS to proceed as it clearly between the date of the 18/11/16 and the court judgement of 30/11 would suggest the process was already underway.

Hopefully some of the other friendly folk will review my argument to set aside so we can get on with this

hoohoo

Usually in residential cases primacy of contract applies. Here is an analysis

http://parking-prankster.blogspot.co.uk/2016/11/residential-parking.html

So their bleatings that you must display a permit are not usually relevant; but all will depend on the wording of the lease/tenancy.

You should therefore lead with that point, as it is usually the best, then add the others as follow up.

[Deleted User]

This is really interesting.

To issue court proceedings, the claimant must pursue the defendant at their address. If pursuing as keeper that would be the RK address.

The fact that a lawyer/intermediary was involved does not entitle the claimant to send documents there.

With your application notice, I dont think your short wording cuts it im afraid.

I would lodge a bundle (ring binder) containing witness statements from you, your OH and Ronaldo all confirming that no claim form was received and stating that you are surprised that proceedings were issued given that you had thought you were engaging constructively in pre action negotiations.
Note that there is nothing to stop a claim form being lodged during negotiation- you never had a formal agreement not to. This was not a mediation.

You can state that you had assumed matters had been discontinued (if that was your understanding). Clearly the statement will need to say in detail how you now came to learn of the judgment and to explain how you have acted promptly to get it set aside (don't dally).

Take note that your application to set aside is not a defence - it should be drafted on the basis of procedural irregularity and that you have a defence to present (to be included within your bundle as a draft document). You may get judgment set aside, but don't assume the claimant won't want it relisted for a hearing if the court is unable to make a finding that documents weren't served by them. Once posted, a party is entitled to assume first class mail has arrived.

I have my doubts that you'll get the costs at this stage, but you can but ask...

Umkomaas

@OP. While he doesn't say so, Johnersh is a qualified lawyer, so pay particular attention to his advice.

@Johnersh. There are some posters on various forums who place in their signature 'IANAL' (I Am Not A Lawyer), so maybe your signature should be, as a minimum, 'IAAQL'. Would add considerable weight to your posts (same suggestion to LoC123).

If the acronym is used, perhaps CM could include it in the Newbies sticky's list of acronyms?

[Deleted User]

@umkomaas I would, save that I'm not insured to provide advice here. My area of expertise is far removed from parking law.

Strictly speaking, I provide comment on the same basis anyone else, save with the benefit of perhaps not being intimidated by the court process