County Court Judgement - Stressing Out

nosferatu1001

Quentin - it seems that way, base don a PM I had

As I explained in the PM, if correspondence was sent in April 2017 I REALLY hope the current address was provided, as otherwise showing a lack of good service will be much harder. If the new address WAS given, and they still issued against the old property, then you state as suhc and it means there absolutely WAS NOT good service, nd the set aside should succeed automatically. You also ask the court to order CEL to pay back immediatley the £255 as this is not a cost of the case - they chose to use a known old address

But, as ever, we need real detail. We're getting only part of the story each time, and it is not good as it just wastes time and makes it more confusing for everyone.

Fighting_UD

Unfortunately, yes the keeper said "I visited the restaurant and forgot to register the car on to the system" in the letter/emails to CEL and did not make them aware of the new address! It is a different story that there was no clear sign when the keeper entered the restaurant reminding customers to register their vehicle nor was the keeper informed by staff!

Fighting_UD

Hello guys.

Sorry for not providing complete info. The only thing I missed in my post is about not mentioning that CEL were contacted via email & letter in April 2017 and just to clarify that The new address was not provided! (Contacted BMPA and they told the keeper not to give CEL new address! Which I can now see could work against the keeper)

But the redirection was set up between April - July 2017 and no letters received from CEL.

Proof of Royal Mail payment and receipt confirming the dates available.

1. As this was a genuine visit to the restaurant along with proof of visit in terms of bill and bank statement can this be taken into consideration.

2. Another thing is the signage on site, if there was insufficient signage can this be a solid reason to defend as well purely on this basis?

3. After all being said, is it a duty of CEL to regularly check address to ensure letters are sent to the correct address as not being replied to?

4. CEL are not the land owner.

The CCJ was done online and the keeper does not have copy of particulars or letter before claim as this may have sent to the old address


Thank you!

Coupon-mad

is it a duty of CEL to regularly check address to ensure letters are sent to the correct address as not being replied to?

Yes and no.

No - they can't ask the DVLA again, only once.

But they knew your email address and could easily have contacted you to check your address, since they were receiving no replies to any letters they reckon they sent since April.

Despite your silence, they didn't bother and just ploughed on to a claim, even though it would have taken ONE email to ask...

Fighting_UD

Thank you for the support so far. It has been excellent.


@Coupon-mad - I agree that CEL did not make any attempts to chase up via e-mail. This is a valid point and hope in the eyes of law court can consider this.


Having read many post on CCJ and defence statements, I think the defence has to be based on the below. The keeper is planning to apply for mortgage in dec-jan 2018 therefore it is very important to ensure there are strong chances of winning.


Can you please critique keeping in mind that the keeper told CEL about he/she visited the restaurant! A defence statement draft to be posted here very soon to understand whether if everyone thinks there is a real chance of getting the case set-aside.

1. Poor signage on site (Submit picture and videos to court)
2. CEL are not the landowner therefore there could be on contract in place. (the keeper will provide a copy from HM Land Revenue confirming name of the land owner). A copy of a contract was never provided with the original PCN. Therefore there was no complaint landowner contract.
3. It was a genuine visit to the restaurant and not trespassing.
4. A PCN notice was not served within 14 days to comply with POFA 2012.
5. CEL have added unrecoverable sums to the original parking charge. CEL do not comply with POFA 2012


According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original £100 parking notice to £348 If the claimant alleges that they claim the cost of its in-house administration, these cannot be recovered.

Quentin

Fighting_UD wrote: »

The keeper is still within the 30 days period before it affects the credit file.

You say you want to apply for a mortgage this month or next but it is unlikely the set aside will be dealt with by then (the ccj will already now be on the register/all credit ref agencies etc)

nosferatu1001

Quentin - if paid within 1 month, the judgement is NOT entered on the accessible registry.

Quentin

nosferatu1001 wrote: »

Quentin - if paid within 1 month, the judgement is NOT entered on the accessible registry.

No. You are mistaken.

It is entered on the register immediately it's handed down.

The OP has seen it on s credit ref agency report!


If it's paid off within a month it gets removed if the claimant informs the court. Otherwise the defendant has to request its removal by sending the court proof plus the appropriate fee

Fighting_UD

Dear All.

First of all thanks you to this amazing Forum and help received so far.

Based on the above mentioned details in the posts the keeper has prepared the following defence statement. As this case is similar to Saggi's therefore taken as a basis of defence and added a few details relating to this case.

I look forward to your feedback
_______________________________________

WITNESS STATEMENT

______________________________________


WITNESS STATEMENT

______________________________________


I am XXXXXXXXXX and I am the Defendant in this matter.
This my supporting Statement in support of my application dated XXXXXXX to:
· Set aside the Default Judgement dated XXXXX 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 in XXXXXX. However, this claim form has not been served at my current address and thus I was not aware of the Default Judgement XXXXXX. This only came to my notice 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 XXXXXXXX. In support of this I can provide confirmation from XXXXXXX County Council showing my updated details for the purposes of paying Council tax.

1.2. On XXXXXXXX the defendant attempted to contact the Claimant via letter and on the email address using information provided on the original PCN dated XXXXX. I have received no acknowledge or response from the Claimant regarding my e-mails and subsequent letters. This means the Defendant still do not have any details of the incident the Claimant alleges has taken place, other than the summary of charges now owed, which is shown on the Court papers.

1.3. Between XXXX to XXXX the defendant believe the Claimant has made no attempts to contact the Defendant and have behaved unreasonably in pursuing a claim against the Defendant without ensuring they held the Defendant’s current and correct contact details.

1.4. 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.

1.5. On the XXXXXX I contacted the XXXX 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.

1.6. On the basis provided above I believed that there was a lack of good service from Claimant who ignored to contact the Defendant and did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.7. Considering the above the I was unable to defend this claim properly and therefore I believe that the Default Judgement issued incorrectly and thus should be set aside.



2. Order dismissing the Claim

2.1. I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.
2.2. 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.

2.3. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, 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. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and 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.

2.4. A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, 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.



3. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

3.1. 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.

3.2. 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.

3.3. 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.

3.4. 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 [name of claimant].

3.5. 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.

3.6. In order to make informed decisions and statements in my defence as keeper of the 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: xxxxxxxxxxxxxx

Dated: XXXXXXXXXX

Signed: ________________________________

Quentin

The judgement not being served correctly is not the issue - it's the claim that was not served correctly isn't it? (Line 2)

Did the defendant notify dvla of the change and if so when