Parking CCJ set aside defence

The_Deep

Read Excel v Cutts, that was won on signage.

Coupon-mad

RETR079 wrote: »

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

Yes and no! Not on that alone, it is dodgy to rely on something quite technical, that not all Judges have agreed with.

You said this is Link Parking, and:

I am not sure of the signage at Harwood Square Bristol. The charge is for Parking in No Parking in the entrance road to a gated estate.

There might also be scope to argue that the signs were not just prohibitive, but also so scarce that the driver did not see any term creating any 'relevant obligation' or 'contract' that would cause a driver to pay £100. The driver knew noting of this term, (use the ''red hand rule'', by Denning MR in Spurling v Bradshaw...look at other threads, search the forum!).

And - if the stop was brief, e.g. to load something or deliver an item or person, or pick up a person or bags/goods - there might be scope to use the persuasive appeal case in Jopson v Homeguard (again, search and read defences from 2017 using that case).

RETR079

I have retrieved photos from the sight. There is no markings on the ground to designate the prohibited area. The signs are not on the entrance to the area but within the area. The signs are not visible as the car is reversed into the space. The signs are not visible on exiting the vehicle to leave the area. There are other vehicles parked in the prohibited area. One sign is overgrown by trees and has been like this for over 6 months.
Should I pursue this poor signage as part of my defense? Is it strong?
I am reading the cases all have parts to apply in my defense, I am gaining in confidence but I am looking for a bullet proof case. continued thanks and appreciation for all help.

RETR079

Here is my 1st of 5 lines of Defense argument
no service = no legal entitlement of Claimant to ask the county court for a judgment = there cannot and should not be a county court judgment
I have been living at my new/current address since xxxx/2016
“the only valid service address was where the defendant actually lived” REF 01. The parking industry know that operators are failing to ensure their letters were reaching the defendant and have made changes to code of practice to ensure operators make the necessary checks to guarantee valid service was effected. REF 03.2
I was not served with County Court Claim No. DxxxxY issued xxxx 2017 as the claimant provided an incorrect address for service. REF 02 The claimant incorrectly filed written evidence that the claim form had been duly served. Therefor, as I was not served with the necessary papers, I was not given the opportunity to submit a defence in accordance with the statutory period.
Default judgement was made xxxt-2017.
REF 03.4 The court acted on incorrect information submitted by the claimant. No service was made to the defendant so set aside must be granted. Having a defence is not appropriate.
I thus believe that the Default Judgement against me was issued incorrectly and should be set aside.
Action was taken immediately on discovery of this judgement resulting in the N244 application for set aside xx20177. REF03.8
REF 01 https://www.britishparking.co.uk/AOS-Code-Changes-2018
Clause 23.1c - Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the person being written to is the correct party.
the only valid service address was where the defendant actually lived.
REF 02 https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06
Where to serve the claim form – general provisions
6.6(2) The claimant must include in the claim form an address at which the defendant may be served.

Proof of service before obtaining judgment

6.47 Where
(a) a hearing is fixed when the claim form is issued;
(b) the claim form is served on a defendant out of the jurisdiction; and
(c) that defendant does not appear at the hearing,
the claimant may not obtain judgment against the defendant until the claimant files written evidence that the claim form has been duly served in accordance with this Part.


REF 03 http://www.civillitigationbrief.com/2015/12/08/when-the-court-fails-to-serve-an-irregular-judgment-must-be-set-aside/ Appendices Tanir v Tanir
1. Tanir -v- Tanir [2015] EWHC 3363 (QB) Mr Justice Garnham found that the court had failed to serve the claim form and, consequently, a judgment had to be set aside. The court had no discretion to act otherwise

2. If the claimant has any suspicion at all that the defendant does not remain at the “last known address” it would be prudent to check this prior to issue.
3. A prudent claimant should assume that lapse of time, or a failure to respond to correspondence, gives rise to a risk that the defendant has moved.
4. The court acted on incorrect information submitted by the claimant. No service was made to the defendant so set aside must be granted. Having a defence is not appropriate.
5. The court should set aside and make claim if warranted, the claim can then be disputed before the judgement.
6. If the defendant can show that he has not been served (or is not deemed to have been served) with the claim form at all then he would normally be entitled to an order setting the judgment aside and to his costs in making the application.
7. (3) If such an application and cross application are made the court should make such order as it considers just.
8. If the claimant can show the defendant has been guilty of inexcusable delay since learning that the judgment has been entered against him, the court would be entitled to make no order on the defendant’s application for that reason. The judgment will then stand (subject to any direction made by the court whether in relation to statutory interest accruing due on the judgment or otherwise).“

Coupon-mad

I have retrieved photos from the sight.

Site.

There is no markings on the ground to designate the prohibited area. The signs are not on the entrance to the area but within the area. The signs are not visible as the car is reversed into the space. The signs are not visible on exiting the vehicle to leave the area. There are other vehicles parked in the prohibited area. One sign is overgrown by trees and has been like this for over 6 months.
Should I pursue this poor signage as part of my defense? Is it strong?

Signage is fundamental, so scarce signage IS a good argument in any defence.

RETR079

Please comment on
My defense built on Inadequate Signage case law and photos provide support

The is a lack of adequate, sufficiently prominent, clearly visible, reasonable signage in area. REF 01 Excel v Cutts
The signs do not pass the tests set out in Beavis for clear signs sufficient to form a contract. REF 02 appendices
REF03 BPA code of practice . The driver must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you
There are no signs at the entrance to the area. REF 04 IPC code of practice REF photos 1,2,3,4,5,6,8,9,10
Photographic evidence to be provided by the claimant will show the vehicle reversed into xx rxxd. The signs are not clearly visible from the vehicle during the parking manouvere or leaving the vehicle away from the area on foot.
There are signs poorly situated deeper into the sight and obscured by foliage of overgrown plants. None of which were seen by the driver during the parking manouver or walking away from the vehicle and site. REF photos 10,11,12
It has not been made clear to the defendant to what area the signs refer. There is no evidence to distinguish the area from the highway. The evidence of other vehicles parked in the area could lead the defendant to believe there was no parking restriction.

Coupon-mad

manouvere and/or manouver = manoeuvre

sight = site

RETR079

Notice to Keeper does not
State that a Notice to the Driver relating to the specified period of parking has been given.
Only time of issue.
Is this enough to stop the case?

Coupon-mad

No it isn't enough to stop the case. You need that CCJ overturned first.

My daughter is on ESA benefits so will not pay fees.

No-brainer then, to get the set aside done. Have you read other examples on here recently, for wording?

RETR079

I am working through my arguments using this forum as a guide to find the case law to support.
I am not sure about wording and structure.
My plan is to submit a well supported report outlining the defense. I hope my wording and structure is not as important as the facts?

My last letter received said
Judgement is set aside conditional on filing a defense.