CCJ Set Aside Help Please!

NF2018

Hi all,

Firstly thank you to all those that have posted on this forum. I have found it really useful in helping pull together the paperwork in response to a CCJ that has been applied. I agreed to guarantor for a friend in January, a CCJ was uncovered and I was unable to proceed with the process. I have a perfect credit history and was shocked. Upon investigation it appears my old address had been used to contact me. By mistake I had missed changing the address at DVLA for my car (however did have it changed by the issue date of the CCJ, and had my licence etc had all been updated at the time of the alleged offence). I am applying for the set aside and was wondering if you would mind giving me a little advice please?

On the N244 Q3 do I want to request either:

a. Order for the original claim to be dismissed
b. Order for the original claim to be dismissed, or to be re-heard at a new hearing

Ideally I would want to write “a” but do not want to be cheeky.

I am happy with the other parts of the N244; having reviewed Coupon-Mad’s post on the 7th March 2017 (thank you for the detail and help!).

If possible would you lovely lot be able to check the draft order and witness statement is using the appropriate wording. I am completely new to this and want to ensure I get the process right! Please see the draft order and witness statement copied below...

DRAFT ORDER:

An order that the Judgement dated xxxx of xx County Court case number xxxx is set aside on the basis that:

• The Defendant has a reasonable defence and 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

And the following is a copy of my witness statement (thank you CSG 2015 for your post)

WITNESS STATEMENT:

I am xx and I am the Defendant in this matter.
This is my supporting statement, in support of my application dated ………… to:
• Set aside the Default Judgement dated xx 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 xxx However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until a guarantor check on my credit file uncovered it on xxx. I understand that this Judgement was served at an OLD ADDRESS (xxxx).
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, 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.
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.
1.6. On the Friday 19th January I contacted Slough County Court to find out details of the Default Judgement. The court papers contain no details of the alleged incident, nor the vehicle this related to.
1.7. On Friday 19th January I contacted the Claimant using information given to me by Slough County Court. I was able speak with a member of the Claimant’s staff, however they were not able to provide evidence that I was driving the vehicle at the alleged time of the incident.
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 xxx on the xxx I have no recollection of being at this location on this date.
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. Indeed upon speaking with xxx, who administer the car park where the alleged incident occurred, any parking notices for users of the Lido are cancelled, therefore I submit that even a few pounds would not have been lost had the driver of the vehicle for which I am the registered keeper, been using the xxx.
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: xxx
Dated:
Signed:

Thanks again to all for posting such comprehensive guidance and thanks in advance for your help with the above.

Quentin

Once a claimant has won a ccj they can commence enforcement proceedings in Court at any time (all at the defendant's expense) to get paid (eg bailiffs/attachment of earnings etc)

You need to include a request for any enforcement proceedings to be put on hold until after the outcome of the set aside request has been decided

NF2018

Perfect thank you Quentin.

Shall I put that in with the other orders at the start of the other draft orders?

Thank you.