Successful CCJ set aside

CSG2015

I have posted previously on this forum, and wanted to give you all an update plus post the details in case they can help anyone else in a similar situation. Mostly, I wanted to thank everyone on here for their invaluable advice.

To summarise, in July this year I received a letter from a solicitor claiming an unpaid debt from a CCJ against me (CEL) that I hadn't known anything about. The paperwork had been sent to an address that I had left a year previously.

The solicitor couldn't give me any details of the alleged incident, and couldn't even confirm the car involved. They said they would get further details from CEL but never got back to me. I could not get through to CEL myself at all.

I applied for a set aside, which was held at Leicester County Court on 6th Nov. The District Judge said that she was not convinced I could argue the papers had not been properly served, but agreed that I had not had a chance to defend the judgement. She also seemed very swayed by the fact I had taken steps to find out more and had no response, and the claimant had not turned up to the court case.

Her order was:
1. CCJ be set aside
2. Claimant pay my set aside fees (cheque received today!!)
3. Claimant had 14 days to provide me with further documentation. If this was not done, the original claim would be struck out. I have heard nothing, the deadline has passed so it's all over!

I'll post below the witness statement I included with the N244 form. I did prepare for the set aside hearing and took along all the relevant legislation, case hearings etc but in the end I was in and out in a couple of minutes.

Thanks again everyone!

Quentin

Good news

Copy and paste this into your original thread and let this one die

https://forums.moneysavingexpert.com/discussion/5697597

CSG2015

I am ……………. and I am the Defendant in this matter.
This my supporting Statement in support of my application dated ………… to:
· Set aside the Default Judgement dated ………… 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, or to be re-heard at a new hearing

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on ………….. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until I received a letter from ……… solicitors dated ………….. informing me that a County Court Judgement had been issued against me and my account was in arrears. I understand that this Judgement was served at an OLD ADDRESS (……………..). However, I moved to a new address in …………...
1.2. At the time of the County Court Judgement, I was on the electoral roll at my new address, and was registered at the new address for council tax, banking, bills, my driving license and with the HMRC. As Civil Enforcement Ltd had received no correspondence from me at any point and I had not responded to the court summons, I believe they had reasonable cause to question whether they were using an accurate address and that simple searches could have provided them with the correct address. Indeed, …….. Solicitors have evidently been able to find my new address in order to attempt to collect the alleged arrears.
1.3. 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 industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. This is a topical issue: I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” He added:
"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."
1.4. 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.
1.5. 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. This is despite my best efforts as noted below.
1.6. On the………….., 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. I do not even know what vehicle this relates to.
1.7. On …………. I attempted to contact the Claimant using information given to me by Northampton County Court. I was not able to get through to a member of the Claimant’s staff to discuss the matter as they have an automated phone system that does not allow you to talk to an advisor without inputting a numerical code. As I have never received any communication from them I do not have such a code. There is no alternative means of contacting them provided. I have contacted the solicitors they have instructed to recover the debt. They informed me that within 2 weeks they would forward me the details of the incident and copies of all communication sent, however I am still awaiting this. As of ………… the only information I have received is that the matter is regarding a parking contravention at ……………………………. on ……………. I have responded straight away to the discovery of the Judgement against me and have given the Claimant adequate time to provide the requested information but they have not done this. This means as the Defendant, I still do not have adequate details of the incident the Claimant alleges has taken place.
1.8. Considering the above I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

2. Order dismissing the Claim
2.1. I have received no documentation regarding what vehicle this alleged contravention relates to, thus do not even know that I am in fact the Registered Keeper.
2.2. The alleged incident occurred at ……………………… on the …………….. I have no recollection of being at this location on this date. Indeed, I was on maternity leave at that time and live at some distance from Peterborough.
2.3. I understand Civil Enforcement Ltd to be a Private Parking Company that uses ANPR in order to issue “Parking Charge Notices”. If the Claimant can indeed prove that the alleged incident relates to a vehicle for which I am the Registered Keeper, then any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. This includes the requirement to issue the Notice to Keeper within 14 days of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, or indeed after, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.
2.4. If the Notice to Keeper was not issued within 14 days, then the Claimant is required to prove who the driver of the vehicle was at the time of the alleged incident. I have no recollection of ever parking at the location of the alleged incident. The vehicle that I am the Registered Keeper of, has been insured to be driven by two adults and is on occasion driven by other adults with their own comprehensive insurance. I submit that the Claimant cannot provide such evidence of the identity of the driver. I further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.
2.5. 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.
2.6. 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. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.
2.6.3. 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.
2.6.4. 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 Civil Enforcement Ltd.
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.
2.8. In order to make informed decisions and statements in my defence as keeper of a vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.
Full name:
Dated:
Signed: