PArking CCJ over 10 in a car park

Quentin

filthynines wrote: »

. .......Just because it does not support the hopes of the people who would post on this forum in pursuit of avoiding parking charges.

These people you unnecessarily refer to as "moaners" are very often successful as you can see, despite certain individuals with agendas coming to post that they should pay up as they have no chance of succeeding

filthynines

deshulina wrote: »

Hi @filthynines,

I hear your point of view and I do appreciate it as in this case I need a devil's advocate, however I don't think you have read the post from the beginning. Over all I just need the CCJ gone from my record as there are number of reason.

The fine was issued not for 12 minutes over stay but for 12 minutes presents in the car park all together, which I think is slightly mad.

As for a settlement this could be reached however I have already lost £255 for the N244 form and if settled it will still remain on my record only to be seen as satisfied,

Even if I have 10% chance of winning and settling the case I will fight it till the end as in my opinion this fine was issued wrongly and should't have never been issued at the first place.

Hi Deshulina

You're right that I had not read the back story, and so I apologise for that. I can see now why you would want to make the application in any event.

In my view it would be a decent result if, as suggested elsewhere, you were able to agree to set aside judgment even with payment of the parking charge or a proportion thereof.

That said, if your primary motivation is to get the CCJ set aside and if you're less worried about the inflated bill at the end (the fixed costs if ParkingEye ultimately succeed at trial) then I would suggest the following:

1. If you want to avoid paying anything at all, but have the CCJ set aside, then make no offer and proceed to the application hearing in January. Your best argument is:

a) You're a litigant in person and didn't know you were better off notifying PE that you moved address, and didn't know that court proceedings could continue regardless;

b) You applied as soon as you found out about the CCJ. [Promptness is part of the test you must fulfil under Part 13 of the Civil Procedure Rules. If you have not read this already then you must do so.]

c) You have real prospect of successfully defending the claim [also part of the test] because the penalty was unfair/unreasonable in light of the fact that you did not park and fell just 2 minutes outside of the BPA grace period.

You *could* also argue that PE need to prove that they took sufficient steps to bring the matter to your notice. But if they exhibit evidence of parking signs etc then you might be in difficulty.

THEN if you are successful you can proceed to trial if you so wish. If you lost at trial you would avoid a CCJ being entered on the register if you paid in full within 30 days. This would achieve your main objective.

In any event you can make an offer between the set aside and the trial date.

2. If you're happy to make an offer to avoid what I would call litigation risk (the risk of trial, where nobody knows what will actually happen), then ask to have the CCJ set aside and offer to pay a proportion of the charge. You should mark the letter "Without Prejudice" in order that it cannot be used against you.

Worst case scenario is that they refuse your offer and you have to attend in January.

I would probably make the offer described in 2. It gives you two bites at the cherry.

edit: The reason for the forcefulness of my argument elsewhere is because the ParkingEye v Beavis case in the Supreme Court effectively is a boilerplate for all ParkingEye cases. It isn't quite this simple, but the conclusion is effectively "breach the terms, pay the money".

The difficulty you have with your best point re the grace period is that this is dealt with expressly in the Supreme Court judgment at para 111, and is authority that an argument that you only overstayed the grace period by 2 minutes should not succeed:

"First, Mr de Waal relied on the fact that it was payable by a motorist who
overstayed even by a minute. The Consumers’ Association expanded on this point
by observing that there are many reasons why a motorist may overstay, some of
which may be due to unforeseen circumstances. We cannot accept this.

ParkingEye’s business model could have had a graduated charge for overstayers
based on how long they overstayed, but the fact that it did not do so does not render it unfair. Even if it had done, it would presumably have involved a specific sum for each hour or part of an hour, in which case the same complaint could be made. More fundamentally, as we have explained, the £85 charge for overstayers was not a payment for being permitted to park after the two hours had expired: it was a sum imposed for staying for more than two hours. The notion of a single sum between £50 and £100 for overstaying even by a minute, appears to be a very common practice, in that it is adopted by many, probably the majority of, public and private car park operators."

https://www.supremecourt.uk/cases/docs/uksc-2013-0280-judgment.pdf

filthynines

Quentin wrote: »

These people you unnecessarily refer to as "moaners" are very often successful as you can see, despite certain individuals with agendas coming to post that they should pay up as they have no chance of succeeding

Cognitive bias in action: where are the words of caution from the people who have failed? People coming to this forum should see both sides of the coin.

See my latest post and see whether you can genuinely take issue with any of it.

Quentin

filthynines wrote: »

See my latest post and see whether you can genuinely take issue with any of it.

Yes - "genuinely" take issue with you originally jumping in to deflate the distressed newbie and now admitting you hadn't even read the OP!

filthynines

Quentin wrote: »

Yes - "genuinely" take issue with you originally jumping in to deflate the distressed newbie and now admitting you hadn't even read the OP!

The position in law hasn't changed; only strategy based upon what it is OP wants to achieve. Still important to express that.

Anything else? Can you actually attack the points I've made on the prospects of success in this case?

nosferatu1001

Agreed - they do not have to do EVERYTHING
They do however HAVE to act on reasonable grounds that the address is not in use. A simple TRACE check - 5 minutes - finds 99% of current addresses, and is exactly what is being expected of cases where a reasonable period of time has gone between last contact.

You are not really helping the OP here. The application is in, and the CCJ being removed - which has a good chance given the OP has a good defence and can show they never received the forms so could never defend - is what is needed. You essentially have no credibility as a poster.

filthynines

nosferatu1001 wrote: »

Agreed - they do not have to do EVERYTHING
They do however HAVE to act on reasonable grounds that the address is not in use. A simple TRACE check - 5 minutes - finds 99% of current addresses, and is exactly what is being expected of cases where a reasonable period of time has gone between last contact.

You are not really helping the OP here. The application is in, and the CCJ being removed - which has a good chance given the OP has a good defence and can show they never received the forms so could never defend - is what is needed. You essentially have no credibility as a poster.

Go before a District Judge and put that to them and see what they say. The DVLA check is sufficient. OP's case is worsened by the fact that s/he says that s/he had already been in correspondence with PE, which means s/he had the ability to notify of the new address. S/he didn't. PE therefore are able to use the last known address: the one given by the DVLA.

There is no defence to be had in saying "I didn't receive the forms". The rules for services are deliberately designed to prevent a litigant from simply saying "I didn't receive them!".

There is a strict legal test to be applied, and it is discretionary once the court decides that service was good. Please, read Part 13 of the Civil Procedure Rules.

I really don't care what you think of my credibility. If you think that credibility comes from post count and a lack of desire to join the consensus, rather than some actual legal knowledge relevant to the post, then I care even less for your opinion.

nosferatu1001

Wrong. Seriously, we have seen set asides automatically granted due to lack of good service. Involved a year gap in PCN to claim, for example. The DVLA check was no longer reasonable given the evidence that the D may not be at the address any longer. It isn't "I didn't receive the forms" it is "good service was not effected BECAUSE..." and it is the "because" you keep dismissing.

I thin you will find the consensus on your credibility - that you cannot even be bothered to read the OPs thread, before opining at length, over multiple posts (seriously, the multiquote button is there for a reason) - is already coming clear. I suggest given your advice is at odds with respected posters, who we know to be trustworthy - something you have yet to demonstrate - you back out this thread and check your ego just ever so slightly.

Your opining on grace periods misses that there are in fact two. 10 minutes at the end and an undefined but AT LEAST similar period at the start. I urge you to a) read the OPs whole thread and b) the BPA CoP, which as I am sure you are aware was a requirement of the Beavis judgement.

ampersand

Quentin wrote: »

Yes - "genuinely" take issue with you originally jumping in to deflate the distressed newbie and now admitting you hadn't even read the OP![/QUOTE
#
Your closing clause was exactly my thought, Quentin. Should have been the first thing disclosed by fn, not admitted many posts later.

....not a confidence-inducing quality for any prospective client:-)

That came only in response to op's own courteous follow-up post.
#
op - this is your thread and you can have confidence in the contributions from longstanding posters.

fn - feel free to start your own thread about yourself and your legal experience, such as it may be. There's an increasing tone of 'me' from you on deshulina's thread, tantamount to hijacking.
You may be happy in The Moneysavers' Arms.

nosferatu1001

Hear hear

OP - dont lose confidence here. With good preparation you have a damned good chance on this. Maybe not as great on the service element, but on the actual defence.