Unknown CCJ with some complexities- please help

Umkomaas

Understand that J.

Presume there's no impediment in others pointing out your credentials?

I truly appreciate your involvement here. :T:

hoohoo

Might be also worth mentioning this is a well-known problem with the parking industry and the MOJ has issued a consultation

https://www.gov.uk/government/news/new-measures-to-protect-consumers-from-debt-claims

wdm1985

ok guys I will have another look at it and come back with a redraft.

I have had it reviewed by my brothers friends who does this kind of law. He only had a skim through it but he believes that the argument that I have laid out above is certainly enough for a set aside which is the first starting point. :j

wdm1985

also meant to ask... should I mention that UKPC have been guilty of altering pictures in the past. Thr only reason I ask is I am quite sure they cannot prove we came back and forth from the parking bay at the flat.

Turn_to_Grey

Post #3, line 1.3.1. 17th Oct 2017 ?

wdm1985

hi folks...
sorry for the delay. With professional obligations and the pregnancy its been a rough month and I am a bit behind. I want to get this set aside submitted asap as I am aware how important it is to act quickly and it is a month since we found out (I don't think a month is unreasonable.
I have a new draft that I will attach. We have encountered a couple of problems

1. PRIMACY OF CONTRACT- I rented off my aunt and uncle in cash. Never seen a contract and they don't have their original paperwork it accidentally got destroyed. Given that I had no contract with them does that help me any?
2. I reached out to the MSE member who won a popla appeal which forms part of my argument. However they are in the breeze and I only have the MSE thread. Do you think that would be admissible in court if required?
3. I do not have any of the paperwork from the original tickets- I have assumed from multiple threads that they are not up to POFA standards... am I ok to do this.
4. I had wanted to mention that they have been found guilty of forging pictures in the year these tickets were issued. I am not sure how contentious this is.

The evidence we have to submit as part of the set aside includes:
1. The witness statement of registered keeper combined with order of dismissal
2. My witness statement to say that the docs from court never arrived
3. letter from royal mail confirming that the redirect was in place
4. a copy of the parking permit

I will now attach the set aside draft and if a few people could please look at it today/this evening I would be very grateful as I would like to send this off tomorrow as it has already been a month.

thank you to the kind folk here in advance!

wdm1985

I am xxxxxxxxxx and I am the Defendant in this matter.

This my supporting Statement in support of my application dated 25/08/2017 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. At this point I had been declined for a credit card despite having been in no arrears apart from my mortgage.. At this point I performed a check on my credit file which highlighted I had an outstanding County court Judgement of £792. This was deeply distressing as I am pregnant and wanted the credit card to finance some purchases before the birth of my child.

1.2. The defendant 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 the defendant can provide confirmation from xxxxx County Council showing her 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. This can be corroborated by the witness statement of xxxxxxxx xxxxxxxxxx.

1.3. On the next working day- 25th July 2017 the defendant contacted Northampton County Court to find out details of the Default Judgement. They were able to advise that the judgement was awarded to SCS Law on behalf of UKPC and advised how to complete an N244. The paperwork was completed in a timely manner with a period of one month to allow the defendant to complete their argument for set aside and dismissal.

1.3.1 The defendant 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 from UKPC at this point. Given that weeks, indeed months went by without further communication it was assumed that the matter had been discontinued.

1.3.2 Given that the court judgement was granted on the 30TH November 2016 this would suggest that County Court papers had been filed prior to discussions with UKPC. Despite engaging in what had been constructive- pre action negotiations with UKPC, at no point did the company indicate that they had proceeded with court action.

1.4.1 The defendant believes the Claimant has behaved unreasonably in pursuing a claim against the defendant without ensuring they held the Defendant’s correct contact details. According to publicly available information her 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 the defendant would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.6. In December 2016 the Right Honorable Sir Oliver Heald QC MP announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. He said “This consultation will make sure the right balance is struck in allowing companies to pursue debts, but while guaranteeing the appropriate level of protection to those who unwittingly owe money.” One of the specific points of the consultation was to assess the role of parking companies and examine how drivers are informed of fines.

1.7. Considering the above all the above the defendant was unable to defend this claim. She sbelieve that the Default Judgement against her was issued incorrectly and thus should be set aside.


2. Order dismissing the Claim:

As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons:

2.1. The defendant believes that the original Claim by the Claimant has no merit and should thus be dismissed. 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. UKPC are not the lawful occupier of the land. She has reasonable belief that they do not have the authority to issue charges on this land in their own name and that they had no rights to bring this case.

2.1.2 The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question. 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. The defendant submits 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 she is the Registered Keeper. She further submits that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.

2.1.3Further to this in Jopson v Homeguard [2016] B9GF0A9E, it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking. The Supreme Court found that £85 was not a genuine pre-estimate of loss in Beavis as there was no direct loss to the parking company.

2.1.4 The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even administration) costs' were incurred. The Claimant had at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £60 to £160. This appears to be an added cost with no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

2.2. The claimant alleges that on one occasion no valid permit was on display. As the registered keeper the defendant can produce the permit which does not stipulate which bay number the car had to be parked in. This permit was supplied by the Estates manager for XXXXXX apartments. In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

2.3. The claimant alleges on three occasions the registered keeper’s vehicle was parked for longer than the allowed time. The defendent refers the court to POPLA appeal reference xxxxxxxxxxx. This is precedence for appeal in parking in this area. In this instance the parking charge was dismissed as case was not contested by UKPC. The appeal was won on the basis of the following arguements:
• 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’’, the defendant thus disputes the claim in its entirety as she do not know the wording of the contract nor do she 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. The defendant submits 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.


To Summarise:

Lack of Standing by Claimant: The Claimant is not the landowner. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name.

Claimed charge is an Unenforceable Penalty: 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.

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.

On this basis I XXXXXXXX believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety. 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.

patman99

wdm1985 wrote: »

I am xxxxxxxxxx and I am the Defendant in this matter.

This my supporting Statement in support of my application dated 25/08/2017 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. At this point I had been declined for a credit card despite having been in no arrears apart from my mortgage.. At this point I performed a check on my credit file which highlighted I had an outstanding County court Judgement of £792. [STRIKE]This was deeply distressing as I am pregnant and wanted the credit card to finance some purchases before the birth of my child.[/STRIKE] Not really relevent.

1.2. The defendant 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 the defendant can provide confirmation from xxxxx County Council showing her 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. This can be corroborated by the witness statement of xxxxxxxx xxxxxxxxxx.

1.3. On the next working day- 25th July 2017 the defendant contacted Northampton County Court to find out details of the Default Judgement. They were able to advise that the judgement was awarded to SCS Law on behalf of UKPC and advised how to complete an N244. The paperwork was completed in a timely manner with a period of one month to allow the defendant to complete their argument for set aside and dismissal.

1.3.1 The defendant 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 from UKPC at this point. Given that weeks, indeed months went by without further communication it was assumed that the matter had been discontinued.

1.3.2 Given that the court judgement was granted on the 30TH November 2016 this would suggest that County Court papers had been filed prior to discussions with UKPC. Despite engaging in what had been constructive- pre action negotiations with UKPC, at no point did the company indicate that they had proceeded with court action.

1.4.1 The defendant believes the Claimant has behaved unreasonably in pursuing a claim against the defendant without ensuring they held the Defendant’s correct contact details. [STRIKE]According to publicly available information her 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. [/STRIKE]

1.5. 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.

1.6. In December 2016 the Right Honorable Sir Oliver Heald QC MP announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. He said “This consultation will make sure the right balance is struck in allowing companies to pursue debts, but while guaranteeing the appropriate level of protection to those who unwittingly owe money.” One of the specific points of the consultation was to assess the role of parking companies and examine how drivers are informed of fines.

1.7. Considering the above all the above the defendant was unable to defend this claim. She sbelieve that the Default Judgement against her was issued incorrectly and thus should be set aside.


2. Order dismissing the Claim:

As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons:

2.1. The defendant believes that the original Claim by the Claimant has no merit and should thus be dismissed. 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. UKPC are not the lawful occupier of the land and, unless proven by a non-redacted contract, neither do they have landowner rights. She has reasonable belief that they do not have the authority to issue charges on this land in their own name and that they had no rights to bring this case.

2.1.2 The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question. 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. The defendant submits 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 she is the Registered Keeper. She further submits that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.

2.1.3Further to this in Jopson v Homeguard [2016] B9GF0A9E, it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking. The Supreme Court found that £85 was not a genuine pre-estimate of loss in Beavis as there was no direct loss to the parking company.

2.1.4 The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even administration) costs' were incurred. The Claimant had at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £60 to £160. This appears to be an added cost with no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

2.2. The claimant alleges that on one occasion no valid permit was on display. As the registered keeper the defendant can produce the permit which does not stipulate which bay number the car had to be parked in. This permit was supplied by the Estates manager for XXXXXX apartments. In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

2.3. The claimant alleges on three occasions the registered keeper’s vehicle was parked for longer than the allowed time. The defendent refers the court to POPLA appeal reference xxxxxxxxxxx. This is precedence for appeal in parking in this area. In this instance the parking charge was dismissed as case was not contested by UKPC. The appeal was won on the basis of the following arguements:
• 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’’, the defendant thus disputes the claim in its entirety as she do not know the wording of the contract nor do she 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. The defendant submits 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.


To Summarise:

Lack of Standing by Claimant: The Claimant is not the landowner. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name.

Claimed charge is an Unenforceable Penalty: 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.

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.

On this basis I XXXXXXXX believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety. 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.

I have made some amendments for you. If you are successful and UKPS make another Court claim, it might then be worth bringing-up the legallity of any signage placed at the site and whether or not the require planning permission was obtained.

wdm1985

supporting witness statement:

I am xxxxxxxxxxx and I am the husband of the defendant in this matter.

This my Statement in support of her application for set aside dated 25/08/2017

I can confirm that we moved from xxxxxx on 31/3/2016. I was responsible for putting a mail redirect in place at the time we moved. I have paper evidence from Royal mail to show that this Royal Mail redirect was in place until June 2017.

I can confirm that at no point did the defendant receive any communications from Northampton County Court- either before or after the date of the County Court Judgement.

I can confirm that on receipt of the letter from SCS Law dated 16/10/16 the defendant instructed xxxxx to enter meaningful pre-action negotiations with UKPC. As far as we were informed negotiations were positive. No further communication was received from UKPC to our home address. No further letters were received from SCS to our home address following the letter dated 16/10/16. The issue was assumed to have been discontinued.

I can confirm that the first idea the defendant had a County Court judgement against her was when she was declined for a credit card on 24/7/17. This prompted an immediate credit check and she was in contact with the court the next working day (25/7/17). Following advice from the court on the procedure of appealing for a set aside she immediately went about constructing a defence statement and obtaining legal advice before submission.

On a personal note I can state that I lived at xxx for 2 years prior to the defendant moving in. It was well known at the time that UKPC would often aggressively ticket the car park and on occasions had ticketed cars that were displaying permits and ticketed cars for being in the 'wrong spot' without formal record of who lived where.


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

wdm1985

Thanks Patman- I really appreciate it and feel relieved that there wasn't too much you could find wrong with it. I will see if others have any comments and get this off tomorrow. We have been tortured by UKPC in the past at our old block.