DCBL: telling me I have a ccj I don’t have.?

Coupon-mad

Donowl1981 wrote: »

Thanks again
Have have had a read through some of the threads now. Is there a particular basic response you would recommend regarding what you would put to tell the judge why you think you would win if the case went back to court? One that is generic to cases this old?

Search the forum for Excel 2012 pre-POFA defence or six year old Excel claim

This is as easy a defence as it gets.

ciderboy2009

OP - if you moved house 4 years ago, the car was sold before then, yet the claim was only issued last year then I would say that you would have a good grounds to claim for the claimant to refund you your fee for the application to set aside judgement.

To me it's fairly clear that they haven't carried out any due dilligence in relation to confirming that your address is current.

Donowl1981

Right, so this is what I have bodged together using bits of others I have read on this forum to send for the set aside and defence. Any thoughts from the helpful and well informed people on here is much appreciated.

I am **************** and I am the Defendant in this matter.
This my supporting Statement in support of my application dated 9/4/18 to:
· Set aside the Default Judgement dated August 2016 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 as the Defendant in March 2017 . 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 DCBL (Direct Collections Bailiffs Limited) asking for a total amount of £366.46. I understand that this Claim was served at an OLD ADDRESS *************************. However, I moved to a new address in December 2014.

1.2. On the 26/3/18 I contacted Northampton County Court Business Centre via email to find out details of the Default Judgement. I received some confirmation of this on 6/4/18.
1.3. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant!!!8217;s correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant!!!8217;s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.
1.4. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant!!!8217;s current address when bringing the claim.
1.7. Considering the above I was unable to defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.
Defence.


2. This claim purports to relate to a parking charge relating to an identified vehicle in 2012.

2.1. The Particulars of Claim fail to disclose any reasonable grounds for bringing the claim and as such, are an abuse of the court process or otherwise likely to obstruct the just disposal of the proceedings. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16 by failing to provide a copy of the contract or details of any agreement by conduct.

2.2. The alleged incident pre-dates the Protection of Freedoms Act 2012 (Schedule 4), before which there was no lawful route to hold a registered keeper liable for the actions of an unidentified driver.

2.3. The Claimant has failed to produce any evidence regarding the identity of the driver, and there can be no lawful presumption that a keeper was the driver on any given date in the absence of evidence.

2.4. The Claimant is known to seek to rely on the case of Elliott v Loake [1983] Crim LR 36, in order to mislead the court that this case created a purported precedent that amounts to a presumption that the registered keeper is the driver. In that case, the finding that the keeper was the driver was based on the provision of forensic and other evidence, none of which has been presented here. Elliot v Loake was also a criminal case, which has no bearing on a civil contractual matter, as decided in several county court decisions where the Judges dismissed Elliott v Loake as not applicable.

2. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 and 7.5, by failing to provide a copy of the alleged contract (presumably, signage terms from 2012).

3. Practice direction 22 sets out who may sign a statement of truth. Para 3.10 states that ''A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer''. The claim is signed by ''BW Legal''.

4. The Claimant's solicitor, BW Legal, is a notorious, serial 'robo-claim' firm, whose cosy relationship with various rogue parking companies, and unacceptable conduct in pursuing unjustified and inflated parking charges was recently 'named and shamed' in a Parliamentary Second Reading of the Private Parking Code of Practice Bill, where one MP revealed he had reported this firm to the Solicitors' Regulation Authority to investigate. The Claimants themselves have also been named and shamed by MPs on several occasions, regarding their predatory and aggressive business practices, woeful signage and lack of evidence of any agreed contract.

4.1. The issuing of this baseless claim appears to be an attempt to intimidate the Defendant into paying an ancient and unsubstantiated 'charge' for which the Defendant is not legally liable. This shows a complete lack of respect for the court process and also demonstrates the failure of the Claimant to attempt to mitigate losses, by making an extortionate, unquantified and unjustified demand for £276.46.

5. The claimant may seek to rely on the case of Parking Eye v Beavis [2015] UKSC 67 ('Beavis'). This claim can be easily distinguished from Beavis, which was dependent upon an un-denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the unusually compelling legitimate interests of the landowner (at that location only) in encouraging a turnover of free parking spaces. Strict compliance with the BPA Code of Practice was paramount, and Mr. Beavis was the admitted driver who saw the signs and entered into a contract to pay £85. None of this is applicable to this case, and the Supreme Court was at pains to state that each parking charge case would necessitate individual consideration of the facts, and that the penalty rule was certainly engaged in such cases.

5.1. Further, in Beavis at the Court of Appeal stage, the Judges held the case of a free licence to park under certain conditions, was 'entirely different' from most ordinary economic transactional disputes. Parking charges cannot exist merely to punish drivers and this claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found were still a relevant and adequate test in less complex cases.

6. As a member of the British Parking Association (BPA) in 2012, this Claimant was banned by the DVLA for several months for 'a significant breach' of the Code of Practice.

6.1. This ban was reported by the DVLA in a Freedom of Information reply in the public domain, as relating to unacceptable and misleading wording on their signs, which attempted to suggest a registered keeper could be liable, before the POFA was enacted. Implying that a keeper could be liable/responsible for the actions of a driver was identified by the DVLA as so serious a matter that Excel was banned from obtaining registered keeper data for three months.

6.2. It is averred that this misinformation regarding liability is exactly what this Claimant is repeating now, in the hope that neither the Defendant nor the Courts will realise that there can have been no 'keeper liability' on the material date and that this Claimant was actually banned for making these same misleading statements, around the time of this alleged incident.

7. No evidence has been supplied to demonstrate that the Claimant is/was the landowner of the land in question, or that they have/had any other right, standing or proprietary interest in the land on the material date. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and issue enforcement proceedings in their own name and can demonstrate a clear chain of authority from the landowner.

8. It is averred that this Claimant failed to make reasonable efforts to make the terms and conditions in any of its car parks clear and prominent then, or at all. It cannot be assumed that anyone entering the car park in 2012 - when Excel used particularly crowded and illegible wording on all their signage - was aware of or agreed to any 'parking charge' terms. The Claimant is put to strict proof that the driver (an unidentified party) saw, read and agreed to a contract upon which the claimant is relying.

8.1. The court's attention is drawn to the words of Simon Renshaw-Smith (previously known as 'Captain Clampit') in Excel v Cutts (2011, Stockport County Court), where Excel's signage was held to be deliberately misleading and deceptive, hiding any 'contractual charge' in the smallest lettering.

8.2. The unclear signage used universally by Excel in 2011/2012 was exposed in an article by the Plain Language Commission, which reported that Mr Renshaw-Smith wrote to Stockport MP Andrew Gwynne: ''The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts''. It is averred that this Claimant continues to demonstrate a complete lack of respect for the court process, and a disregard for the rights of registered keepers in 2018. What is plain, is that the repeated exposure in Parliamentary debates condemning this Claimant and their solicitor is wholly justified.

9. The Claimant is attempting to claim additional charges such as legal costs of £129.00. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. The additional sum claimed for interest is an insult to justice and evidence of the Claimant's wilful and vexatious abuse of the court process, given that this Claimant has waited almost six years to contact the Defendant.

10. The Defendant denies the claim in its entirety, voiding any liability to the claimant for all amounts claimed. In the absence of strict proof capable of rebutting the above points of defence, I submit that the Claimant has no cause of action whatsoever against the Defendant registered keeper, and the Defendant invites the court to exercise its case management powers to strike the claim out without a hearing, since it has no prospects of success.

Coupon-mad

You need 3 separate things:

- a draft order with six points on it, see the thread by Bambi82 here:

https://forums.moneysavingexpert.com/discussion/comment/74080395#Comment_74080395

- a witness statement setting out why you were unable to respond to the claim at the time, when you found out about it and that you acted quickly to file this N244, and that the Claimant is in the wrong for failing to take reasonable steps to trace you (mention Sir Oliver Heald's press article, search the forum for his name)

- a proposed defence but that DOES NOT yet go to the court, that's for you to take to the hearing to convince the Judge that not only should this CCJ be set aside due to you having no chance to defend it, but that you do have reasonable grounds to defend it (or maybe even the Judge will run through your defence to deal with it and agree that the entire claim gets struck out and your £255 refunded, by order of the court, because it was a Non-POFA PCN and they have just taken a keeper to court several years later, hoping no-one realises that the law didn't allow this in 2012).

Donowl1981

So should I not send the defence points, am I not supposed to support the chance of this getting dismissed before court and saving me a long trip to Northampton?
Does the statement above not set out
why i could not respond to the claim?

KeithP

You'll never need a long trip to Northampton.

If a court hearing ever takes place it will be in your local court - assuming you are a private individual rather than a company.

Donowl1981

Another question: if I have such a strong case could I not get a solicitor to do this and then claim the costs from excel?

KeithP

Donowl1981 wrote: »

Another question: if I have such a strong case could I not get a solicitor to do this and then claim the costs from excel?

Unlikely that any costs awarded in a Small Claims Court would cover those costs.

Donowl1981

Ok thanks Keith.

Coupon-mad

You should read some other set aside threads to see how fairly simple this is for a consumer to do.

I'm surprised you thought you had to go to Northampton, or wondered if you could claim solicitor's fees (that you do not need) in the small claims track for a set aside.

You need to read more threads, you can do this relatively easily and will almost certainly get the CCJ set aside at a hearing of maybe 15 minutes, with the claimant not even turning up.