CCJ from BE Legal/Excel relating to incident in 2012

Umkomaas

Johnersh wrote: »

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.

I think manoeuvring for a default is the preferred option for many PPCs if they are unable to immediately have the motorist supinely handing over his hard-earned, while thanking them for generously allowing him to pay at a 40% discount! :cool:

Lamilad

Excel v Smith!- the Daz Clayton case on pepipoo, the transcript for which was posted there by Henrik777 this week)

https://www.dropbox.com/s/hzmxw4bwab9vl8w/index.php.pdf?dl=0

TobyZ

Coupon-mad wrote: »

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.

Thanks to you both Coupon-mad and Johnersh - I was trying to find the right balance between "keep it simple" and "demonstrate a real chance of winning". Think I must have gone overboard on the defense though! Will send through a new simplified draft shortly.

There is also one other matter I'm a little anxious about but reluctant to discuss on the public forum. Can I private message one of you? Would really appreciate checking some things over with one of you to put my mind at rest.

[Deleted User]

The simplest course may be to do a statement and attach a complete defence as an exhibit. That prevents a decent factual account becoming cluttered with legal argument. See below.

https://forums.moneysavingexpert.com/discussion/comment/73014275#Comment_73014275

TobyZ

Johnersh wrote: »

The simplest course may be to do a statement and attach a complete defence as an exhibit. That prevents a decent factual account becoming cluttered with legal argument.

Sorry, this crossed with my posting of the new version. Seems like an excellent solution to the problem. I will edit the legal stuff out of the witness statement, and put it all in a separate defence attachment.

Coupon-mad

I don't take pm's on here, but you could try asking another regular.

TobyZ

OK, here is my new cut down statement, with the legal defence moved to a separate "Exhibit C". What do you guys think? Is this good to go?

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 have provided 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. This practice was singled out for criticism in the 23rd December 2016 Ministry of Justice announcement of a crackdown on companies issuing claims using incorrect addresses (see exhibit A). Announcing the measures, Justice Minister Sir Oliver Heald stated:

"It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments.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."
1.7 The Claimant pursued this claim, relying simply on a letter to an old address, three months after the announcement of these measures by the government. In so doing, they have disregarded the specific and stated intent of the government and Parliament regarding the pursuit of alleged debts.
1.7. On the basis provided above I argue 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 Defendent ceased to be the registered keeper of the vehicle in February 2016, when the vehicle was sold
2.2. The alleged incident took place on 7th March 2012, in The Square car park Chorlton. I have no memory of visiting this site on this date.
2.3. 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.
2.4 No evidence has been produced by the Claimant to demonstrate the identity of the driver. I have no memory of visiting the site of the incident on this date. Two drivers were named on the insurance for the vehicle in question at the time of the incident (see exhibit , while other drivers with comprehensive car insurance can drive cars with the keeper's permission.
2.5 I have received no documentation regarding this case so I am unable at present to properly assess or address the assertions made by the Claimant or the evidence used to justify these.
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. 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.
2.6.3. 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 BW Legal

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. A fuller statement of the kind of defence I intend to make, and would have made if I had been aware of the Claimaint's Claim, is provided in exhibit C
2.8 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

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.

And is that a good state of affairs ?

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.

I've never seen that advice anywhere.

Mail redirection can be set up for a maximum of 2 years, but that wouldn't have helped the OP.

It seems to me that while the rules allow PPCs to get large amounts of money off some people, it also allows them to trash the credit ratings of others ; and if we on this forum are keen to minimise the harm to those people, we should try and find a way for then to avoid default CCJs, without having to re-contact the PPC.
I personally think it is unfair to issue a default CCJ, unless it can be shown that the person is either being served at the given address, or has made a concerted effort to avoid contact. Perhaps the answer is that the Claim should be stayed if the Defendant cannot be traced ; as Umkomaas says, having won their default CCJ, they seem to quickly find a more valid address.

Geoff1963

I think manoeuvring for a default is the preferred option for many PPCs if they are unable to immediately have the motorist supinely handing over his hard-earned, while thanking them for generously allowing him to pay at a 40% discount!

Very good point.
Maybe they are checking electoral rolls, but in order to know when their Claim will go undefended. The six year limitation period, gives a good chance of someone moving in that time.

[Deleted User]

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 Defendent ceased to be the registered keeper of the vehicle in February 2016, when the vehicle was sold
2.2. The alleged incident took place on 7th March 2012, in The Square car park Chorlton. I have no memory of visiting this site on this date.
2.3. 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.
2.4 No evidence has been produced by the Claimant to demonstrate the identity of the driver. I have no memory of visiting the site of the incident on this date. Two drivers were named on the insurance for the vehicle in question at the time of the incident (see exhibit , while other drivers with comprehensive car insurance can drive cars with the keeper's permission.
2.5 I have received no documentation regarding this case so I am unable at present to properly assess or address the assertions made by the Claimant or the evidence used to justify these.
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. 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.
2.6.3. 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 BW Legal

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. A fuller statement of the kind of defence I intend to make, and would have made if I had been aware of the Claimaint's Claim, is provided in exhibit C
2.8 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.


All of the above appear to be points better suited to a Defence not your statement, which essentially just needs to cover why the Claimant got the CCJ in the first place and why you are applying.


I would go to much greater efforts to set out how easily searchable you were (phone book, electoral roll etc), had the Claimant bothered to even take the most rudimentary steps to search for you. The test is one of knowledge. You should state clearly that the Claimant should have known or was negligent as to whether you still resided at the address they had 5 years on. This is critical to CPR 6.9 (look it up!!) - where the failure to respond to critical correspondence and the passage of time should have given them reason to believe that you had moved on.


I would add that in circumstances where no address can be located, service by social media (Facebook) has been permitted by the Court - AKO Capital LLP & another v TFS Derivatives & others [2012] There was no need to use that address.