Unknown CCJ with some complexities- please help

wdm1985

Johnersh wrote: »

Jesus. It's only a parking ticket. Killing people seems a bit heavy handed....:D

:rotfl::rotfl::rotfl::rotfl::rotfl:

that has brightened up my day. I have the biggest exams of my professional career and I could used the three hours tonight to study. I can see what Lawyers bill by the hr. I put costs in but didnt include much as I didn't want to go crazy on the set aside (Have submitted costs of around £400).

If asked about the case Law- like Beavis not being relevant to residential parking etc- how much do you need to know about the intricacies of the case? I have read around them but don't know it in intimate detail. I don't have the time atm and I wasn't sure it was needed in loads of detail for set aside as you just had to show you have the basis for a case (which I am more than Happy to answer.

[Deleted User]

Main thing is of course to get your application fee back.

You'll be fine. Obviously focus on the FRCS/FRCP...

Beavis basically deals with whether penalty clauses can be enforceable. It is not a panacea. You need to distinguish the cases if needed, that is all. The commercial need to "keep the churn" of store customers is quite different to this - which is to control non residents abusing your parking facilities.

Since this is no commercial car park, it is also possible that the court could accept that the penalty is unconscionably high too, not least since the parking scheme offered no benefits to which you weren't already entitled.

wdm1985

Hi guys,
we are all set to go tomorrow morning. I have printed out everything into well organised files for us to reference and I have printed out a copy of the rights of audience to bring as I know they are bringing an advocate. I am hoping to represent my wife tomorrow as she is now 32 weeks pregnant, was noted to be hypertensive today and is now very stressed. Issue is- I am her witness.... am I able to do this?

also- quick Q about POFA- is there a specific segment that the arguement regarding inflating the charges is related to? I am still at work so I wont be able to have a look at it until the early hours and I want to be able to put my finger on it tomorrow (not that it should be discussed in much detail as its only the set aside).

thanks as always

ps nervous as hell

Umkomaas

I am hoping to represent my wife tomorrow as she is now 32 weeks pregnant, was noted to be hypertensive today and is now very stressed. Issue is- I am her witness.... am I able to do this?

As her Lay Representative, but she must attend with you.

Check out LR on Google to read about the scope and limitations, also take the relevant ‘authority’ from your search, because some judges are either ignorant of the capacity for you to do this, or just stubborn/grumpy.

You must get the judge’s agreement to proceed as your wife’s LR as the very first action at the start of proceedings. It’s not something to complacently take for granted.

Just so you know, there is another form of representation possible in court - a McKenzie Friend. So I suggest you Google that too so you know the difference between MF and LR, just in case your judge isn’t on top of it.

also- quick Q about POFA- is there a specific segment that the arguement regarding inflating the charges is related to?

PoFA, Schedule 4, para 4 (5) & (6).

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

Good luck tomorrow. Please do update us on result, whatever the outcome.

[Deleted User]

Rights of audience - how to check

Barristers much have completed a second six of pupillage to have rights of audience. Graduation is not enough to have a right of audience. At that point most will be a tenant (ie a member) of a legal chambers.

All fully qualified solicitors will have rights of audience. They will not appear unless fully qualified.

Employed legal staff under supervision will be permitted to act as advocate. Generalisations are a bad idea, but some advocates from both agencies LPC and Elms have been found to lack the necessary qualifications.

Bar Council (barristers) http://www.barstandardsboard.org.uk/regulatory-requirements/the-barristers'-register/

Law Society (Solicitors)
http://solicitors.lawsociety.org.uk/?Pro=True
NB make sure you click professional not firm.

CILEX (legal executives)
http://www.cilex.org.uk/about_cilex/about-cilex-lawyers/cilex-practitioners-directory

[Deleted User]

The risk I see for the o/p is that the claimant may argue that proceedings were correctly served on your solicitor friend if he was the nominated party to whom they should have been corresponding.

If that was not the case (and Solicitors are generally very careful on this point to check the address for Service of proceedings) then sending papers to an incorrect address should be fatal to them - insofar as default judgment must be set aside. This article may be helpful from the "don" of legal blogging on procedure, Gordon Exall http://www.civillitigationbrief.com/2014/05/16/service-of-the-claim-form-the-time-for-service-and-the-address-for-service-essential-points-before-the-essential-checklist/

Finally, do make sure you read the court rules to help guide your arguments. Applications to set aside are pretty formulaic. https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13#13.3

[Deleted User]

wdm1985 wrote: »

Hi guys,
we are all set to go tomorrow morning. I have printed out everything into well organised files for us to reference and I have printed out a copy of the rights of audience to bring as I know they are bringing an advocate. I am hoping to represent my wife tomorrow

Fingers crossed on this...

wdm1985

Good evening ladies and gentlemen- I just wanted to update you on today's proceedings.

THE SET ASIDE WAS GRANTED!

I will give a little bit of backdrop of the day.

We arrived at the court early as we wanted to make sure we knew the scope of the land. The case was scheduled to be heard at 11:30 and the proceedings were on time. Interestingly the case listed before us was another parking case. I was too nervous to consider listening in,

On signing in at the court I explained to the people that I wanted to represent Mrs WDM as a lay representative. They said that I could not do this and I could only represent as a McKenzie friend.Mrs WDM is now 8 months pregnant and has not been very well last few days so this was very upsetting for her. It was me who had prepared the bundle on her behalf. She was very visibly upset to the court staff who did seem to feel sorry for her but advised there was nothing they could do.

We were then approached by a Mr Hall (claimants rep) who invited us into one of the small rooms off from the court to discuss the case. He explained that I could not represent my wife as the set aside was essentially an appeal of the initial case.

He felt we were likely to lose as we had not submitted evidence to back up some of the claims we had made in our defence. I explained that we had never received any documentation of the initial case and it would be up to the judge to make a decision not for him to say.

At this point I asked him about who he was. His professional qualification was as a solicitors agent from LPC-Law. At this point he named council as Pete Blackmore and that he was allowed to represent on his behalf. He reamed off a lot of legal jargon at this point and I assumed he was trying to shut down my rights to audience question. He tried to bring up a few other points which I sharply declined (was very on edge at this point as my wife was very visibly upset). One of these was that they had a contract regarding issuing tickets- but bizarrely mentioned that this had not been entered into evidence.

On a personal note I feel there is no doubt they do everything they can do to try and intimidate people like us. He had a huge pile of papers and was carrying around a suitcase with him. During the actual case he maybe looked at about 2 pieces of paper and never took anything from his suitcase. Maybe he is just going round the court doing this all day. I can understand why people get so frightened of facing even solicitors agents.

We were called in front of DJ Hayes at 11;30 promptly. He was very polite and friendly. He did not seem to mind that anything Mrs WDM said had been directly whispered by me. I found the whole thing very interesting so I will try and lay out what happened.

The judge was at the forefront of the proceedings and dictated how he wanted the case to go from the outset. He noted our extensive defence and asked if the claimant wished to proceed.

Their argument focused on the fact that we had received a letter before action indicating that the mail redirect was in place. The judge pointed out that both myself and wife (both doctors) had gone on record to sign statements that we had not received the paperwork. They discussed the paperwork 13.1 something or other- I think its just reasons for set aside. This was confusing as we weren't quite sure what it meant. THEN the bombshell....
whilst the claimant rep was stating having evidence of paperwork i like the set aside etc the judge stated that the LPC/SCS team must not have all the evidence as there is a record of someone calling the court in January 2017 to tell them they had recieved court papers that were not theirs and they believed that they were for the former tenant!! They had noted they had no forwarding address. They opposing council looked dumbfounded and my wife and I could hardly believe our ears. The claimant then decided to argue that the papers issued in January were possibly not related to the CCJ and the judge pointed out that it was 6 weeks from the court date which was highly likely. The claimants rep then stated that we had a redirect in situ and we may have received our other court paperwork. I don't think the DJ was very happy at this because he stated that this was not the first time that things had slipped through the net with Royal mail in Manchester and he had heard similar stories in his courtroom. At this point in time the judge said he was satisfied that we had not received any notification. My wife and I were smiling at this point as I felt confident that that we were on our way to achieving the set aside.

We then moved on to whether the judge would be satisfied by 13.3- 'the defendant has a real prospect of successfully defending the claim'. Again we didn't really have to say very much as we had provided the judge with a well indexed bundle (thanks so much everyone for this advice). There were several points raised. The claimants side argued that the had a contract that showed they had a right to issue tickets but then mentioned they had not submitted this contract as evidence. I can't remember what the judge said in response to this but I did think it was such a weird thing to say.

Then the claimant moved onto the Beavis arguement, this is something that I had highlighted in my bundle and the judge seemed well versed. He was quite quick to point out that Beavis was for a paid ticket and this was a residential case. The judge pressed the claimants representative regarding proof of loss. The only thing that we had state at this point in time was that we had been issued with a parking pass and we did not pay for parking. At this point in time the the claimant said that we were parked in someone else's space ( I have no idea if this is true or not) the judge pointed out that the parking pass we had was blank. The claimants rep suggested that we were abusing the parking privilege and that the barcode on the pass corresponded to the parking space. (Again I have no idea if this was correct or not- we did not have to defend it as the judge seemed intent on doing so). At this point in time the judge again asked about loss. The claimants rep then asked to draw parallels to the Beavis case and stated that by parking in someone elses space the loss was to the homeowner who had the rights to the space. at which point the judge asked 'Are you representing the residents of x apartments or are you representing UKPC'.

Following on from this we discussed parking in the visitors bay for more than 18 hours. I was slightly worried here as our defence falls down on this, whilst we have referenced POFA 4 in regards notice to keeper we had no paperwork regarding NTKs and no photos of signage etc. Again the judge asked about true loss as this as a residential parking case. The claimant mentioned some code of practice and how much you could charge, He also mentioned the Beavis case again. The judge was well informed (possibly because of our bundle) and pointed out that the charge in Beavis was £85 not £160. The claimant argued against our POFA 4 point saying that the £160 was £100 for the ticket and £60 in 'recovery charges'. At this point the judge seemed to turn in our favour again. He referenced the original claim from the CCJ which stated that it was £160 per ticket on the particulars of claim and they had not given a breakdown of costs which meant it was taken as £160 per ticket. He felt that this was excessive as there was no proof of loss. The DJ then went on to ask why the company could not decide if Mrs WDM was a person or a company- the claimant rep had to admit this was likely because it was submitted from a standard template. The DJ highlighted that this was sloppy and he wasn't very impressed.

The judge then went on to sum up and said that he was satisfied that the papers were issued as a result of a court error. He also felt that we had a strong argument to win a case if it was brought against us- he did highlight that this was not necessarily all of it but certainly part of it ( weakness potentially being the visitor spot parking which we will have to get photos contracts etc of) We had provided evidence from MSE regarding a previous successful POPLA appeal for parking in the same spot but the judge did not think that this was classed as precedence.

He granted the set aside and then went into particulars about filing documents with the court. The judge asked if we wanted our current defence kept on record for this. We explained that we had never received the original particulars of claim- he seemed surprised and commented on quite an extensive defence but suggested we should plan to file a further one on receipt of the new particulars of claim. He said thatthe claimant papers had to be submitted to the court by next friday. The claimant asked for 21 days for something and I wasn't sure what this was for. The judge highlighted that the original particulars were very 'light' and for this set aside they had presented a lot more evidence. He seemed to disapprove of what they submitted for the original case. He stated that they were to provide us with their evidence as it seems they had submitted quite a lot. In view of the pregnancy the judge also said they would keep our current defence on record in the event of my wife being in labour etc. On the 'any other business' I was shocked to see that the claimant continued to ask for his costs despite the hearing going in our favour. The judge then stated 'I assume that you will also be asking for costs'. He stated as it appeared that this was coming back to court he would reserve costs and carry it over to the next case and this would decide it. We thanked him and left. He was very nice and seemed well versed in the current parking law. He had reviewed our bundle extensively it seems and was quite happy to argue the law with the claimants rep rather than us do it.

Afterwards Mr Hall asked to speak to me and wanted to know if understood the judgement. He stated that this meant that we were in a position to enter discussions regarding a settlement. I explained that this had caused a great deal of distress to my wife and this was not something we really wanted to discuss at this time. He took our current address so there would be no mistake and I thanked him for his time and went on my way.

All in all despite this being a moral victory we did not enjoy it. Seeing my wife so upset when she is due to have our first child was not nice. This is compounded by the fact that I have been trying to study for my surgical exams and it has taken much needed time away from the books. I haven't been able to sleep as I have been under so much pressure and it has not eased much knowing that they will come after us once again.

I would however like to thank all of you for your help so far in preparing our defence for today. My wife and I are both very grateful. We honestly couldn't have done it without you.

We don't know where we will go from here. Honestly my wife would probably settle for a small sum but I feel this would be such a shame and just let the bullies win. She has told me she cannot represent herself again as it was far too stressful for her. We would consider using one of the advocate systems that people have had success with before- I don't know even where to start with this...I need to pass my exams first. I would also have a low threshold for adding on costs for emotional stress at the next stage if we do proceed because with everything this has take quite a lot out of us

thanks

WDM

wdm1985

Johnersh wrote: »

Fingers crossed on this...

See above J for an extensive report. Thank you for all your help to date.

If anyone has any questions I will try to answer them as you have all been so helpful.
They will come for us again, but thankfully for now we can get the CCJ removed from Mrs WDMs credit rating. This has worked out well in terms of timing as we received notification when we go home that our mortgage renewal application is due!

[Deleted User]

CONGRATULATIONS. :beer: a drink for you and a Shloer for Mrs WDM :rotfl:

Nice. On a different day (and without the inevitable concern for a stressed Mrs WDM you might have got the costs of today, without rolling them forward to next time. You still run the risk of having to pay the tickets and this application (which you wouldn't have done, had they checked the address for service prior to issuing the claim form).

In any case, you can still fight it. I regard this as definitely a win - frankly unbelievable that the hearing didn't finish at the point that the notation on the Court file was spotted.

The Defendant was never entitled to default judgment as you were never served with proceedings and, in fact, there was an obligation on the Court to set aside the judgment because of that.

I doubt the Claimant's advocate did have rights of audience, but that doesn't really matter, because you are a winner! It's a technical point and hard to argue persuasively without being totally on top of both the statute and case law.

He also felt that we had a strong argument to win a case if it was brought against us

This is worth using to go on the offensive with. You may wish to consider writing to the Defendant with a "drop hands offer" on the basis that the District Judge has already remarked that your case not only is more than merely arguable (the legal test for a set aside) but that you are likely to succeed. There are loads of examples on the forum.

To avoid the time and costs of a hearing you are making an offer to settle on a drop hands basis. That is to say that at this juncture everyone just walks away, bearing their own costs. It has a value because if you win at a later trial they are on the hook for court costs of the ticket AND the set aside. That will cost them the best part of £500 particularly if you both needed the day off work again. Naturally the opposite is also true.

The only certainty is that if you both agreed to walk away now, you are £255 down, the Claimant has spent £25 on Court fees, say £100 for their advocate today and (being generous) perhaps £80 on letter writing etc - almost a score draw. That should have some appeal, but a purely sensible/commercial analysis of litigation risks is not something the parking companies are known for.