Parking CCJ set aside defence

Coupon-mad

RETR079 wrote: »

My daughters mental health has meant she has been in and out of care so we decided to keep her post coming to her stable home. We are reluctant to register her car at any other address because it is likely to be temporary. If there is a fine for wrong address I would rather register the car in my name.
I can help her with the forms but I am still not sure what the CCJ defense should be.

But there's one almost the same on here this week. Have you read any other threads about set asides that were posted when yours was? I recall one mentioning a similar mental health issue, and the person has already written their WS to accompany the N244.

It's in the forum and was posted the same day you did. No link. Search!

RETR079

I really appreciate your help but I can sense your frustration when trying to guide me. I am not familiar with the structure of these forums and I have spent hours trawling through the ever expanding network of threads. I have found nothing definitive as a defense , I should only need one reasonable line? Threads contain a string of complex legal references I am afraid to use without understanding.

Coupon-mad

You are not looking for a defence. It is an application to set aside.

Quentin told you:

See #3 for advice on where to find set aside help here

(As #3 - You cannot "defend" the set aside.

Your daughter needs to apply in her name!)

I told you the other thread was posted the SAME DAY you did. I can never understand why newbies post a random thread without reading others from the same day - I always do on any new forum; I read the threads from that day/week, and do a search for my keywords, and get a flavour of other people's solutions.

No new thread is needed on most forums, when they are full of info like this one is.

Not difficult to find but I've done the search for you:

https://forums.moneysavingexpert.com/discussion/5742991

Obviously don't copy it verbatim, all cases differ slightly. And this is NOT done in your name.

Have you now read the NEWBIES thread post #2 about set asides? How to get there is in my signature below, and under every post I make. 2 clicks back and you are there.

RETR079

Thank you for your patience, I think I am getting the hang of the forums.

I have compiled this as a defense to add to the request to set aside.

I have photos of the area but don't know how to attach them , would they help you to advise?

WS
The facts in this statement come from my personal knowledge. Where they are not within my own knowledge there are true to the best of my information and belief. Due to my continued struggle with mental illness I am receiving support with this very stressful episode from my parents

1. The defendant was not staying at the address which the Judgement for Claimant was served, therefore has only now become aware of the claimant’s intentions. The filing of this witness statement has been done as soon as possible after seeking advice.

2. Whilst the defendant was the Registered Keeper of the vehicle concerned, there is no evidence of the driver. It is impossible to expect a keeper to recall who might have been driving. Especially during a time where the defendant was experiencing traumatic mental health issues.

3. In June 2017, the vehicle was insured for multiple drivers. The keeper has no obligation to name the driver (even if known) to a private parking firm. It remains the burden of the Claimant to prove their case.

4. The Defendant has no liability as the keeper of the vehicle and the Claimant has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

a. The driver has not been evidenced on any occasion.
b. There is no presumption in law that the keeper was the driver and nor is the keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and the barrister, Henry Gleenslade, when explaining the POFA 2012 principles of ‘keeper liability’ as set out in Schedule 4.

5. The vehicle was parked for less than 20 minutes in an area not clearly defined. Photos of the area show there was no sign in the immediate area of the parked vehicle and no indication of the area restricted as no parking.

6. The keeper was not given the opportunity to respond to what appeared to be junk mail, as the keeper was not made aware of the correspondence. The correspondence was not forwarded from the old address as it appeared to be junk mail and the presumed hoax mail would have caused the keeper undue stress at a difficult time coping with mental health issues.

7. The Defendant believes that her personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrong doing. (Ex turpi causa non oritur actio). The defendant’s DVLA data was supplied for the single strict purpose of enquiring who was driving, not for storing for serving a county court claim.

8. The defendant is no more liable now than then. This unwarranted harassment and baseless litigation has caused the keepers fragile mental health significant alarm and distress, such that I intend to report UK Car Park Management to the Information Commissioner for misuse of my data, obtained from the DVLA in 2017!

[Deleted User]

To be honest, I'd do a witness statement all about how you were unaware of the proceedings and (if relevant) highlighting defects in their process.

Appended to the witness statement as an exhibit, I'd have a whole defence ready to go - in case it is set aside and you are asked to show you have a defence with merits.

The above is neither one nor t'other, lacking details on both counts.

Coupon-mad

Johnersh has previously posted about massively simplifying the WS, and putting the legal arguments into an appended (separate) defence. This from another CCJ set aside thread:

Johnersh wrote: »

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.

and:

Ok, so the only valid service address was where the defendant actually lived or the last known address (the DVLA address) provided that the passage of time does not call into doubt the reliability of that address.

What the case law does make quite clear is that the mere existence of correspondence from an address does not mean C can rely on it for service.

Indeed there is case law that if D has never lived at an address it is not good service.

Read paras 50 to 72 of Marshall Rankine v Maggs esp para 68. Read it fully and with care.

(Based on your evidence you lived at the address the claim form was sent to, but were not living together there with D at the relevant time)

Basically the argument becomes no service = no legal entitlement of C to ask the court for a judgment so there cannot and should not be a CCJ

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2006/20.html&query=marshall+and+rankine+and+maggs&method=boolean

RETR079

I have received a General form of judgment or order from my local court ordering that judgement is set aside conditional on filing at court and serving defence on the claimant by date (2 weeks).
The set aside was requested as defendant was not served with papers and therefore not able to defend within statutory period. Papers were served at previous address.
Defendant disputes the parking charge and intends to defend the matter.
I hope this helps others wording their set aside claim.
Now to compile a robust defense based on unreliable service and anything else I can find to support.

RETR079

The parking sign is Prohibitive No parking . Does this mean no contract can be made? I hope to use this as part of my defense. I can not post link but key words are,
Private land warning contractual agreement no parking. By parking you agree to terms

The_Deep

Have you read this?


http://parking-prankster.blogspot.co.uk/2016/04/pcm-uk-signage-does-not-create-contract.html

RETR079

Yes thank you. This is where I got the information. Do you think I have a defense based on this?