CEL CCJ Defence Draft - Help Needed

Fighting_UD

Hello Guys
This forum has been great so far and I would be really grateful if you could provide your assistance and critique of the defence statement prepared below to fight a case with CEL re a CCJ.

It would be helpful if you can advise whether you think the keeper has a realistic chances of getting the case set aside. This needs to be sent by end of this week along with N244 form and £255 fee. (NEED TO APPLY FOR MORTGAGE LATEST BY MID FEBRUARY 2018 SO A BIT NERVOUS)


Many Thanks.


HISTORY

Received PCN from CEL in Jan 17 (after 14 days of the alleged incident) dated Dec 17 for the alleged incident. This was a genuine visit to the restaurant and did not see the sign post re camera as it was during night!

E-mail sent to CEL in Jan 17 to cancel the PCN with attached proof of restaurant visit - The keeper told CEL that "he/she visited the restaurant and forgot to register the car onto the vehicle registration system" - No reply or acknowledgement from CEL

Moved to a different address in Jan 2017

Visited old address on in April 2017 and was given a letter from CEL asking for £140 so sent another email to CEL to cancel the PCN. No reply from CEL

Unfortunately did not give CEL the new address!

Royal mail re-direction set up from Apr-July 17. No letters received from CEL during this period. Thought it was over!

Dec 2017 - Found out that a default CCJ has appeared on my name and contacted the county court to find out it is from CEL seeking £348.47

Defence draft as below which will be sent along with form N244
__________________________________________________________

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 the claim was not properly served at my current address


- No clear signage on site and no contract was agreed with the Claimant. Claimant is not the landowner
- 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 over the period of 11 months ignored to contact the Defendant on his/her email and did not fulfil their duty to get 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 NOT 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

You need to keep everything in the one thread.


Copy and paste the above post into your thread and let this one die