CCJ from BE Legal/Excel relating to incident in 2012

[Deleted User]

Not missing anything. I might be inclined to give it a go, but its not my call. I addressed one of the other questions - how to approach an alternative that provided certainty, namely a consent order.

One option I didn't consider was if the claimant doesn't contest the application, which is feasible, if they think they'll lose.

For chapter and verse on service (and the arguments re the failures of the claimant) see the link below.

I think we can all agree that with the passage of time and no correspondence being returned the claimant had reason to believe the o/p had moved. The question then falls as to what steps the claimant took to search for the new address..

http://www.civillitigationbrief.com/2014/05/18/service-of-the-claim-form-service-at-last-known-address-more-dangerbepoints-to-watch/

There is a risk after any successful set aside that the claimant could reissue, but it's perhaps unlikely given we are near limitation and by then they'd have lost ££.

patman99

I would agree with CM on this. As you are already £255 into it, no harm in going for the set a side and then defending the PCN.

You stated that it was pre-POFA, so no way to appeal even if you hade received the PCN at your address at the time.

Also, there appears to be an ambiguity with the site, being that there is a badly-defined road running through the car park.

I seem to remember this site was mentioned on Watchdog back in the day as the ANPR cameras were so badly sited, they were recording details of vehicles using the access road to get to their homes.

TobyZ

Thank you all so much. This is immensely helpful, my stress levels are coming down a bit!!

I am definitely inclining towards putting in the set aside application and going for the hearing now. Will post the draft Witness Statement I've put together based on Saggi1975's recent successful one. Would v much welcome comments/advice on that!

With that, I'm less worried about the "chance of success if contested" element than with how easy the "they should have known I had moved" hurdle is to clear.

On the plus side (for me), the case is five years old, and I moved soon after the incident happened, then moved again. With both moves, I updated all my details with all the usual people - local council, electoral register etc. Shouldn't be difficult to prove that.

On the minus side, I didn't update details with the DVLA very quickly (simply forgot, was a busy and chaotic time). And there is another factor I'd rather not discuss publicly that I'm worried could come up (if anyone would be willing to run through it with me on a private message I'd be really grateful!)

So I guess my questions for you guys, who have seen dozens and dozens of these are: 1. How tough is the "I didn't live there" test? 2. What sort of efforts would the judge be likely to consider "reasonable" for the PCN to have taken to track me down?

If checking the electoral register, council tax records etc counts as "reasonable" then I think I'm totally in the clear. If DVLA records alone constitute "reasonable", I think I *should* be OK as I am pretty sure that the records were updated well before the claim was served, but there's more uncertainty. Maybe I am making a mountain out of a molehill with this, what do you all think? Should it be straightforward to defend the claim I never received the claim form or are there potential bear traps for me on that in the hearing?

TobyZ

Here's my draft witness statement - comments/suggestions please!! I've tried to bring in relevant material from other recent cases involving the exact same parking company, parking site and from similar period (2011-12) that have recently gone to court. Several of these have succeeded which boosts my confidence a bit

I am XXXX and I am the Defendant in this matter.
This is my Witness Statement in support of my application dated XXXX to:
• Set aside the Default Judgement dated XXXX 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 XXXX. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXXXX. when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (XXXXXXX). However, I moved to a new address in July 2012, and then again in July 2013. In support of this I can provide confirmation from XXXXXXX County Council showing my updated details for the purposes of paying Council tax.

1.2. I have also never received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.
1.3 The Claimant's claim relates to an incident in March 2012. I have moved twice since the incident. The Claim was served to an address which is over four years out of date.

1.4. On the XXXX I contacted Northampton County Court to find out details of the Default Judgement. The court papers contain no details of the alleged incident and I do not know what the Default Judgement relates to.

1.5. On XXXX I contacted the Claimant using information given to me by Northampton County Court. I was advised that it relates to a parking charge notice made against a vehicle for which I was the registered keeper, issued in March 2012. I have requested full paperwork relating to this incident but at present I have not received this. I have no written details of the alleged offense, or the evidence used to support the allegation, other than the summary of charges now owed, which is shown on the Court papers.

1.6. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and 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.

1.7. 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.

1.8. Considering the above I was unable to defend this claim properly. I therefore believe that the Default Judgement against me was issued incorrectly and should be set aside.


2. Order dismissing the Claim

2.1. It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the incident. The vehicle was sold in February 2016.

2.2. The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. From the limited information provided by the Particulars of Claim, I note that the date of the alleged contravention is 07/03/2012 which predates the enactment of PoFA 2012. This being the case, the claimant cannot hold the registered keeper liable, only the driver, of which no evidence has been produced.

2.3 This distinguishes the case from Elliot vs Loake, in which there was irrefutable evidence of the driver’s identity. Far from creating a presumption as to the driver’s identity, as I believe the Claimant will misleadingly state, it in fact showed there is no such presumption available in law. As such, the claimant is put to strict proof as to the identity of the driver. The claimant has tried on multiple occasions to use these cases to get around their inability to identify the driver. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).

2.4 The recent judgement of Excel v Ian Lamoureux, C3DP56Q5 at Skipton 17/11/2016 provides an example of the Claimant's vexatious and misleading practices in this regard. The Judge was critical of the claimant’s attempts to hold the keeper liable. The judge agreed that the only way Mr Lamoureux could be held liable was if he was the driver and Excel could prove he was, which they could not. The judge stated “I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012”.

2.5. 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.

2.6 I thus dispute the claim in its entirety since I, as the Registered Keeper of the vehicle, am unable to understand what the Claimant is claiming for.

2.7. 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.

2.8 While I have not received any documentation regarding this case from the Claimant, I have reason to believe based on the location of the incident that I was the Registered Keeper of a vehicle whose registration mark the Claimant obtained through Automated Number Plate Recognition (ANPR) technology. However I do not know the wording of the contract thus alleged to have been entered into, nor I do not know the means by which the contract was alleged to come into force.

2.9 The signage at the site in question was incapable of offering a contract, nor was the core price term (the parking charge) sufficiently prominent.

2.10. Inadequate Illuminated signs incapable of binding the driver – this distinguishes this case from the Beavis case:

2.10.1 This case can be easily distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage (see Appendix F IPC Code of Practice) forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice was paramount, and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case. Additionally, of the Beavis case, the Judges held it was 'entirely different' from most ordinary economic contract disputes, and Excel Parking have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

2.10.2 The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a large penalty. Here are a few of the references to signage from the judgment:

Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”

Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”

Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

2.11 Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.

2.12 The signage at The Square at the time of the incident was sporadic and illegible (charge not prominent nor large lettering). Therefore, no contract is formed to pay any clearly stated sum.

2.13 The car park in question has featured in several high profile controversies due to poorly placed ANPR technology resulting in tickets being incorrectly issued to drivers who passed through the car park without stopping, and with no intention to park, on an unobstructed path between two roads.

2.14 Drivers passing through the site without stopping and with no intention to park had no opportunity to read the sporadic and illegible signing and hence no opportunity to make an informed decision. The placement of ANPR technology along an unobstructed former public highway is inconsistent with the requirement of good faith through fair and open dealing.

2.15. This Claimant is known for incoherent and sparse signage, incapable of forming a contract. In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, DDJ Lateef dismissed the claim by Excel and ordered the company to pay Mr Cutts' costs. The Judge personally visited the site to view the signs in situ and found that Excel Parking Services Ltd had not taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park. In an article for The Plain Language Commission, 23 April 2012, Martin Cutts cites DDJ Lateef speaking to the Manchester Evening News after her visit:

“The notices that I have seen have reference to failure to comply in an area of lettering that is about four times larger than the lettering that confirms that it is a pay and display car park. To my mind, that suggests that perhaps the claimant’s real interest lies in a failure to comply, [rather] than actually seeking to bring to a driver’s attention the fact that they are about to enter a pay and display car park.”

This material case occurred shortly after the Cutts case and as Excel are known to use signs in their pay and display car parks which are all of generally the same style, layout and design, the Defendant asserts that DDJ Lateef's comments and assessment of Excel's signs in the Cutts case also applies to the signs in this material case. As does her conclusion that they do not make the driver aware of the terms and conditions.

2.16. In 2012, Excel Parking Services Ltd was banned by the DVLA for for a period of three months from access to keeper data for:

''stating or implying on their documentation/signage that the vehicle owner/keeper is liable for the payment of charges imposed in respect of parking contraventions, or that the vehicle owner/keeper had a legal responsibility to provide information as to who the driver was’’.

This underscores the inadequacy of the Claimant's signage and documentation practices around the time of the incident, which was deemed a 'serious breach' of the relevant BPA Code of Practice. I submit that the Claimant knows that the documentation and signage their assertions are based upon, those in operation in 2012, is unsupported by any applicable rule of law, statute or even their own Trade Body's code. The DVLA's ban demonstrates both this inadequacy and the Claimant's awareness of it.

2.17 The Claimant is abusing the court process and in view of their 2012 DVLA sanction/ban, is behaving in a wholly unreasonable and vexatious manner by bringing pre-POFA cases in 2017.

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

2.18.1. 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.

2.18.2. 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.

2.18.3. 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 the Claimant.

2.19 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.

2.20. 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.

Geoff1963

I wasn't even the registered keeper any more when the CCJ was issued.

If a Registered Keeper changes address, and doesn't inform the DVLA, then a CCJ made to the old address is an occupational hazard.
In this case, however, the OP was no longer the Registered Keeper, and hence the DVLA had no need to be informed that they had since moved.

I would like to understand why the DVLA ( and the court ) was allowed to treat paperwork served to the RK's last known address ; as properly served. Why is the DVLA not obliged to link Driver and ( former ) Keeper records, so updating the ( necessary ) Driver details would also update any ( unnecessary, because historic ) Keeper details.

I think a criminal can be tried in their absence, but if DVLA said, "The person you are pursuing is no longer the Registered Keeper, so we cannot give you a valid contact address", the court ought to consider the Claim not served. What if the OPs old home had been demolished, and Court papers returned ; would that still give a valid CCJ ?

[Deleted User]

Jesus @Geoff1963. This is not complicated; why make it so?

1. DVLA provide details of driver when requested (i.e. when the o/p owned the car)
2. PPC do nothing for a long period
3. PPC issue proceedings without checking if address has changed.

* The DVLA has no responsibility for this
* The court has no responsibility for this
* This is not a criminal matter

[Deleted User]

The witness statement needs to be massively simplified. It is not a court pleading, it does not need to include legal argument (that can be presented at the hearing)

I'd keep it to the facts. Failure to serve proceedings and no basis for assuming an old address was current if simple searches would have located you.

Then I'd make the section on parking much shorter/simpler. Noting that the particulars (assuming you now have a copy) fail to indicate any entitlement to ticket, much less charge the sums that they do.

Read CPR 13 - this is the test the court need to consider.

13.2 The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because–
(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;
(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or
(c) the whole of the claim was satisfied before judgment was entered.

13.3
(1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.

Your statement should focus (a) that judgment should not have been entered and (b) that you should be permitted to defend it. I fear your statement is a hybrid of statement and a stock defence and it doesn't need to do that.

Umkomaas

Jesus @Geoff1963. This is not complicated; why make it so?

:EasterBun

In 3 above. The PPC has no further right to contact the DVLA in respect of the ticket. They have one bite of the cherry - at the time of the NtK - the DVLA will release no further details beyond that. Neither do they update the PPC if a keeper, whose details has been previously accessed, subsequently notifies the DVLA of a change of address for the said vehicle.

The PPC will only ever correspond with the address given originally by the DVLA. It's why so many default judgments are flying around the system. Changing an address carries a danger for any motorist who has an unresolved PCN. We advise them to contact the PPC in writing to update them of the change. But it does also carry the danger of 'awakening the beast', especially if the case has been quiet/dormant for a number of months, or even years.

It's rather interesting how, once a default judgment has been issued, the PPC can so quickly and easily organise a tracing of the motorist to his/her new address in order to press for payment of the judgment!

[Deleted User]

It's rather interesting how, once a default judgment has been issued, the PPC can so quickly and easily organise a tracing of the motorist to his/her new address in order to press for payment of the judgment!

This is my point. I get that the DVLA search can't be repeated, but it is unacceptable to wait a number of years and then do no address checks at all. The failure to reply is, of itself, a basis to assume the recipient may have moved. Searches of the electoral roll are cheap and easy. This is basic law school stuff and I would hope the court will be unforgiving.

Coupon-mad

On the plus side (for me), the case is five years old, and I moved soon after the incident happened, then moved again. With both moves, I updated all my details with all the usual people - local council, electoral register etc. Shouldn't be difficult to prove that.

Sounds very reasonable. I would also point out to the court that the Government has gone on record as specifically criticising parking companies for this exact conduct:

http://parking-prankster.blogspot.co.uk/2016/12/government-announce-ccj-review-due-to.html

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

You could include a line asking for the court to protect you from this flawed and unfair claim, in line with the will of Parliament, and allow you to defend the claim, not least because you cannot be held liable as registered keeper.

Also, in addition to Johnersh's wise words, about keeping it more simple in your actual WS, do be ready to show that ''the defendant has a real prospect of successfully defending the claim''. We have found that (whilst the set aside hearing is not intended to be the substantive hearing about the claim) some Judges certainly want to hear why the defendant has a case.

Which would mean turning up to the set aside hearing, armed with clear notes about your defence and even some evidence (such as the fact the car was insured in 2012 for more than one driver, and a copy of Schedule 4 showing it was only enacted creating 'keeper liability' in October 2012). And other court transcripts (Excel v Lamoureux -from the Parking Prankster's case law pages, and Excel v Smith - the Daz Clayton case on pepipoo, the transcript for which was posted there by Henrik777 this week).

So that if your Judge is unfamiliar with a pre-POFA case, you can show him/her in fact, that you have no case to answer and that Excel are (arguably) in contempt of court to pursue keepers in pre-POFA cases, at all.

The reason I say that, is that Excel were banned by the DVLA in 2012 for saying that a keeper could be liable, and/or that a keeper has somehow 'failed' to say who was driving, as if they had some sort of responsibility to do so. Both arguments were deemed by the DVLA to be unacceptable conduct, and a serious breach of the BPA CoP in 2012, hence the banning sanction:

https://www.whatdotheyknow.com/request/excel_parking_ban_suspended

https://www.whatdotheyknow.com/request/139931/response/342099/attach/html/2/FOIR3196%20Thorn.pdf.html

HTH