3 years between PCN and Court presence demanded

Loadsofchildren123

You need to look at the order. Does it contain this wording or anything like it?


"This order having been made by the court without a hearing, any party may apply to have the order set aside, varied or stayed by issuing at court an application in Form N244 (and paying the relevant fee or completing an application for fee exemption). The application in Form N244 must be issued no later than 7 days after the date of service of this Order"

Whether it does or not, you need to fill in a Form N244 and go to court and lodge it with the fee that is payable (£100 if you ask for it to be dealt with on paper, £255 if there has to be a hearing). If you are low income you may not have to pay a fee.
In the box where it says what order are you seeking you say:
An Order:
1. setting aside the order of [x date]
2. for an immediate stay of the order of [x date] pending the court making a final order pursuant to this application
3. an order that the Claimant pay the Defendant's costs


In the box where it says what evidence are you relying on, you say the following (and when you run out of space you continue on a blank sheet which you attach behind that page of the N244):


The reason for the order being made is that I have put forward no valid defence and have no grounds to request a strikeout. I believe that the District Judge has erred in making that order. Aside from my request for a stay, I set out a defence which was, in essence:
1. that I could not confirm that I was the driver of the vehicle at the relevant time, the Claimant had no evidence that I was, and there could be no presumption at law or in fact that I was.
2. If no evidence could be produced that I was driving the car, then to make me liable as the registered keeper of the vehicle the Claimant would have had to comply with the strict provisions of Schedule 4 of the Protection of Freedoms Act ("POFA").
3. The Claimant had failed to comply with the strict provisions of POFA and so I could not be liable as registered keeper. Indeed, the Claimant openly admits that the Notices to Keeper it issues where a driver's identity is not known do not comply with POFA.
4. It is believed that the claim is for enforcement of a contract reached between driver and Claimant (although this is not clear from the Particulars of Claim). If this is correct, then the only way, by law, that I can be liable is either as driver or, if I was not, then as registered keeper (but only if POFA is complied with).
5. If the court decides against me on those points, then the Claimant needs to make out the contractual terms it says were agreed and breached. In my defence I have said that the amount claimed is in excess of the contractual amount the Claimant may seek because it has been inflated with undefined additional amounts and is not reflective of the Claimant's actual losses under the penalty rule, which is not disengaged in this case (as it was in the case of Beavis).


This case is at the preliminary allocation stage and no evidence has been filed. The Claimant has therefore produced no evidence in respect of the matters set out above. The court made the order of its own volition under Rule 3.3 and, as such, I have an automatic right to ask for it to be set aside, stayed or varied under Rule 3.3(5)(a).


The matters set out above are all valid defences to the claim and my defence should be reinstated. I am a litigant in person. I appreciate that I did not set out my Defence as a professional litigant/lawyer might have, but that does not mean that none of the points raised have merit. There is clearly a triable issue over whether or not I was driving, whether or not the Claimant has complied with POFA and what the terms of any contract were.


The Judicial College has issued guidance which suggests that judges should put themselves into the shoes of a litigant in person. It states that, to ensure equality before the law, a judge must be "free of prejudice and partiality and conduct themselves, in and out of court, so as to give no ground for doubting their ability and willingness to decide cases solely on their legal and factual merits, as appears from the exercise of an objective, independent and impartial judgment". It urges judges to ensure that a litigant in person has every reasonable opportunity to present their case.


It appears to me that the District Judge has misunderstood or misread my defence in concluding that it lacks merit, without considering any evidence in relation to the matters set out in the defence, and that I have not been given a reasonable opportunity to present my case.




Then do a covering letter:


Dear Sirs


I enclose an application to set aside and stay the order of [x date].


The order was made in the absence of the parties, pursuant to Rule 3.3 (inherent case management powers).


I have read Rule 3.3 and it states clearly at 3.3(5)(b) that any order made in these circumstances "must contain a statement of the right to make such an application" (meaning an application to set aside/vary/stay under 3.3(5)(a) which this is).


I cannot find any wording in the order of x date which advises me of my right to make an application under 3.3(5)(a). It is extremely troubling that the court has itself breached the strict requirements of Rule 3.3(5)(b) - particularly since I am a litigant in person, which is known to the court, and the order has serious and irreversible consequences, in that it removes my right to defend a claim brought against me.


I ask that this matter is referred urgently to a judge and that I receive an explanation for this. It is confusing enough to be a litigant in person and the least I would expect is for the court to abide by its own rules.


I believe that this application should be dealt with on paper, without the need for a hearing, because the issues are simple and can be easily dealt with.


Note:
If, however, it turns out that wording IS in your order, you just didn't notice it, write the following letter instead:


Dear Sirs


I enclose an application to set aside and stay the order of [x date].


The order was made in the absence of the parties, pursuant to Rule 3.3 (inherent case management powers).


I believe that this application should be dealt with on paper, without the need for a hearing, because the issues are simple and can be easily dealt with. The evidence relied upon is contained within the N244.


When you deliver this to court you need to give in 3 copies. And you have to go BEFORE 2pm because court counters close at 2.

WhoDunnitDevil

Thanks so much for the reply LOC123, it is very much appreciated.

As time seemed to be of the essence I took a letter into the court this morning before the 2pm cut off. There are two dates on my order, one was 23/07/18 at the top in a box, the other at the bottom just says "dated 19th July". I received the letter on the 23rd.

Please see below the letter I took in, I took the advice above from Coupon-mad and tweaked the wording slightly. Details copied below. I addressed to Court Manager as this is what was requested in the smallprint at the bottom of the Order.

I can confirm, it 100% doesn't mention anything about how I can appeal, what my options are, next steps available to me or that in 7 days I lose the ability to act.

I guess I have two questions:
1) Should I follow some/all of your advice still, given I took in the below letter? I can still get an N244 filed before n+7 days which would be the 30th July (Monday). (Assuming the 23rd is the legitimate date to consider, and not the 19/07/18)
2) What happens regarding the extra fees? An extra £100 or even £255 is a significant increment to the amounts I am trying to prove I'm not liable for! Are they repaid to me at any point and if so is this contingent on certain conditions eg winning the case?


July 26th 2018

Dear Court Manager,

In reference to your letter, entitled “General Form of Judgement or Order” dated 23/07/18.

I received the order referenced above which was made without a hearing, and I am alarmed that it's been summarily adjudged, in view of the complete defence a registered keeper will have under Schedule 4 of the POFA 2012 (which was expounded in some detail in the defence). I therefore ask the court to set aside the order in that basis, and to provide a hearing date.

Or in the alternative, a short preliminary hearing, to deal with the question of the POFA and 'no keeper liability' in fairness to the Defendant who was not the driver and had no opportunity to comment in detail about the parking event but could certainly rely on the only applicable law, which absolutely absolves them of any liability if a parking firm (such as VCS) choose not to use the provisions in the Act.

The defence does set out a defence to the action, because of the fact that Vehicle Control Services Limited openly admit in court to not using POFA-compliant Notice to Keeper letters, and due to that choice not to use the POFA provisions, they can only ever hold an admitted driver liable, and the Defendant was not driving.

As there is a defence for a registered keeper, who can never be presumed to have been the driver, in a non-POFA parking charge case, I believe the court has fallen into error with this order and has failed to inform me of my rights and has itself breached CPR Rule 3.3(5)(b) by omitting the statement telling a party affected by the order that they may apply to have it set aside:

(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.
(5) Where the court has made an order under paragraph (4);
(a) a party affected by the order may apply to have it set aside, varied or stayed; and
(b) the order must contain a statement of the right to make such an application.

Yours faithfully

Loadsofchildren123

well you've asked the court to set aside that order, but you must also ask it to immediately stay the order to prevent the Claimant from entering a CCJ, pending the application being determined.


You need to do a N244 which is what the order says you must do.


You must in the N244 ask for your costs of issuing the application. I've explained how to fill it out in my long post.


The only party that can pay your costs (ie the £100/255) is the Claimant. The court may feel it is unfair to order the C to pay your costs, if you win and get that order set aside and your defence reinstated, because the C was not at fault here (but you will say it was at fault here, because the while misunderstanding with the DJ who made that order arose because the PoC are so badly drafted that, seemingly, not even the judge understood what it was all about, hence why (s)he thought your defence didn't actually contain a defence).


So you could win and the C be ordered to pay you that £100 back, or you could win and the court decides not to order C to pay you back now, but it will roll over the issue of the £100 until the final hearing by deciding that costs should be reserved, or costs in the main application (which means paid by the loser), or you could lose this application altogether and then you lose the £100.


Or the court could decline to deal with it on the papers and require a hearing, which would mean a fee of £255, with the same 3 potential outcomes as above.


If I were you I'd try for the £100 option and get it issued on Monday.

System

It's a she

[Deleted User]

Ive been away, but: Wowser. I suggested time was of the essence at post #28 and we appear to be at #75 already without the full application being lodged...

h/t to LOC123 for preparing the more detailed plan of action. The stay preventing C from applying for judgment pending your application is critical: Get it done or you'll be facing an adverse money judgment to deal with not just the present order.

WhoDunnitDevil

I am concerned that I'd be throwing good money after bad TBH. The original charge was circa £250, now I am going to spend at least £100, potentially £250 in addition which I may or may not get back even if I win the case.
I am worried that it's human nature to struggle to admit when one is wrong. I am asking the judge to admit she was wrong, to change her mind and to make C refund my fee for a review of the case even though the mistake was made by the judge rather than them. (Albeit a spin-off mistake from the original error that C made in their PoC per LOC123 above.)

Even if I can win the case, it sounds like I am likely to be paying the £250 to the court for a trial with no ability to claim the funds back.

@Johnersh - What do you mean by adverse money judgement? Sounds like things are going from bad to worse.

Apologies, if this post is extremely negative, I know all the assistance is free and people are trying to help, I do appreciate it.

WhoDunnitDevil

Coupon-mad wrote: »

Relax, we still see 99% of posters beat PPCs who issue claims. BW Legal cases are particularly woeful.

You risk nothing at all by defending a claim at your local court; no CCJ, nothing bad.

You either win (and claim your costs) or - we can count on one hand the numbers lost in the past year - the worst case scenario is you might lose and then pay, probably less/the same as the sum currently being demanded.

Is this still true or am I in a position where I may end up paying even more than the original sum demanded?

Quentin

The adverse judgement you face is the claimant asking for judgement against you as per the 23/7 order you posted in #63

[Deleted User]

@Johnersh - What do you mean by adverse money judgement? Sounds like things are going from bad to worse.

By way of explanation, you currently are on the receiving end of an order that you are stuffed (technical term) as the case has no prospects. Put crudely, once the claimant applies for judgment, you are both stuffed and have to pay C some money (that appears not to have happened yet). The application is the opportunity to prevent that.

You either believe in your case / think "it's a fair cop" with the ticket, or you don't. Chances are, you don't.

Next question: Can you afford to risk losing up to £255 which you might not get back to keep the claim running? If you can't, don't - unpalatable though that may be. I suspect the Court will not deal with your letter until you write a cheque and apply formally. [I vehemently disagree with the current tariff for court fees, which presently appear to obstruct access to the courts in some cases.]

This is litigation and whilst guidance as to the process and suggested approaches may be forthcoming from a number of quarters, no-one can guarantee results. It's an area of law that is notoriously expensive and unpredictable.

I am asking the judge to admit she was wrong, to change her mind and to make C refund my fee for a review of the case even though the mistake was made by the judge rather than them.

No. No you're not. Let's be very clear about this. Based on the defence that you filed, you failed to set out exactly what your case was and why there was no parking contract or reason to enforce it. There is lots of comment in there, but the actual response is the bare denial at para 7 (summary) prefaced with "I can't remember." It is for this reason that my view, FWIW is that whilst your application may well be successful (and perhaps should be) you are unlikely to get the application fee back. That is a significant risk, but you may prefer to take that risk and, if need be, pay the court system rather than the Claimant (a lesser of two evils).

The only error is the failure to set out your right to apply to the court to set aside the order. Actually the magic sentence is often omitted in error (and it should never be). Since you are aware of your entitlement to apply you are happily able to do so within 7 days - it's just not clear that you have / want to.

Only you can ever weigh up litigation risks and decide how to go ahead - whomever you choose to canvas for input.

I hope that this helps. This is not intended to be negative, just pragmatic where the starting point is already one of difficulty.

System

There is lots of comment in there, but the actual response is the bare denial at para 7 (summary) prefaced with "I can't remember."

It's more than that in that it is "I can't remember" with the unwritten "and I haven't made any effort to help the court by doing some research to narrow the issues". The overriding objective.

The location, time and date were there on the claim and there is nothing after 80 posts to suggest what might have happened and why the OP is not liable.

Templates are only a framework and ill-fitting ones are spotted a mile off.