CEL CCJ - should I appeal?

England48

Hi All,

Firstly thank you for the wealth of information on this forum - I have spent what seems like days reading through various posts about my issue! Hopefully some of you can help me to make the right decision here as I am at a bit of a cross roads.

Background: I received a PCN from Civil Enforcement Ltd back in 2015, which I ignored (foolishly) at the time. I then received a couple of subsequent letters saying the fine was going up, debt collectors, Wright Hassall etc. These I all ignored following advice from this forum. Unfortunately I have since lost all these letters having moved house.

I moved from that address in March 16, and had mail forward for 3 months. At the start of April 18, I did a credit check and discovered that I had a CCJ against me from Dec 17 for over £350, inclusive of £175 fine, court fees and interest.

My car was parked in a carpark at an apartment/restaurant complex for 3 hours late one night and went over the maximum 'free' period by 15 mins or so I think (I'm vague on the details as I haven't seen the paperwork since 2015).

I have since been scouring this site to work out my next move. I see my options as follows:

1. Use N244 form pay £100 for a "with consent" application, end up £450 out of pocket, ccj removed.
2. Contact CEL to outline the strength of my defence and negotiate fine down to reasonable level encouraging the risk of paying my £255 costs, pay £100 to set aside with consent.
3. Use N244 form pay £255 to contest, I assume the set aside will be granted because of the obvious change of address, this then has the below outcomes:

a) Judge doesn’t award me costs or the claim, a re-hearing is ordered for the claim. I probably end up at least £600 out of pocket (could have been £450).
b) Judge awards me my £255 back. A re-hearing is ordered for the claim because my defence isn’t strong enough in this appeal. I maybe lose £350+ maybe win.
c) Judge awards me full costs and drops the claim – I don’t see my case as being as clear cut as some of the successful ones I’ve seen on here, so unlikely imo.

My Defence:
To get my £255 set aside costs back:
I was on the electoral roll at my new address and was registered there with DVLA and HMRC, CEL have never received correspondence from me - 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.

Against the Claim itself:
I am the RK, at that time I had 2 others on the car insurance (but haven’t managed to get proof yet from insurer) and another person used the car at the time with DOC on their insurance (but cant prove, not in contact anymore). Therefore I can use arguments relating to the POFA. HOWEVER I have none of the original letters so don’t know whether they have complied with the POFA or not.

Other arguments from these threads - Lack of Standing by Claimant, No Loss Suffered by Claimant, Claimed charge is an Unenforceable Penalty, No contract with the claimant. Do you think these apply/don’t apply?

Questions:
1. How can I get the case information, NTK, PCN and evidence against me from CEL so that I can prepare a defence? Do I send them a SAR and wait for 40 days for a response? If I set aside, do they have to provide me with that info before the hearing? Can I get it from the court now? Or do I have to wait until my set aside hearing and request it for the 2nd hearing? In this instance are CEL likely to settle in my favour?

2. If I contact CEL (somehow) at this stage, will they likely settle on a lower fine when I outline the strength of my defence, making the set aside with consent more favourable?

3. Is my argument to get my £255 costs awarded strong enough? – they’re only allowed to get my address from DVLA once, which was my address at the time. The part I see in my favour here is that the court claim was 2 years after the incident – should they have re-checked after that time? I would quote Justice Minister Sir Oliver Heald.

4. If the judge orders a re-hearing for the actual claim – what chance do I stand of winning that? Is there a chance that CEL will settle on a lower fine? Would I have to pay more than the current £350 if I lose and have to pay their solicitor fees, court fees etc?

5. If I defend as the RK, do they have to prove POFA compliance? Do they have to prove clear signage etc. rather than the other way around? Does POFA apply a ceiling to the amount that can be recovered from a registered keeper?

6. It was too long ago for me to recall who was driving, but I know that it was late at night in December and pitch black – I don’t recall any lit signage. Would I have to prove it wasn’t lit?

If anyone can give me any direct answers or give me a steer on where they think I should go with this, I would sincerely appreciate it. Apologies for all the text!

The_Deep

This happens all the time to motorists who ignore PCNs and move house, most choose to get a set aside. There are hundreds of threads on here of the very same circumstances. I suggest that you read a few, and also the stickies, you appear to have a handle on the issue and they should answer most of your questions.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas. s a few esyufan

Coupon-mad

If I contact CEL (somehow) at this stage, will they likely settle on a lower fine when I outline the strength of my defence, making the set aside with consent more favourable?

Nonono.

Forget it, won't happen. Stop wasting time, you MUST act quickly when you learn of a CCJ.

Use N244 form pay £100 for a "with consent" application,

CEL will not agree, so go for the £255 set aside, as per all the others like it. See the thread by 'Bambi' something or other, which shows you the Draft Order that include six points, where you want the Judge to order your £255 fee to be repaid and the claim struck out.

The NEWBIES thread has saggi's case for you to read where he/she did just that, v CEL.

If the judge orders a re-hearing for the actual claim, what chance do I stand of winning that?

99% record on this forum, of winning, but CEL always, always, discontinue. No claim hearings.

It was too long ago for me to recall who was driving, but I know that it was late at night in December and pitch black. I don't recall any lit signage. Would I have to prove it wasn't lit?

No.

nosferatu1001

For CEL they will NOT turn up to a hearing. they will discontinue, after your set aside is grantd

As such you MUST have a DRAFT ORDER included where CEL have to pay your set asidew costs should htey discontinue. This can be found by searching for this.

England48

Thanks for the responses.

So the best course of action is to apply for a set aside (£255), outline WS and Draft Order, submit and attend hearing. Judge will order 2nd hearing for the claim based on my Draft Order, CEL will discontinue and will have to pay my £255 and drop the claim.

1. How strong does my defence against the claim have to be at this point, I have no information (PCN or NTK) to go off so I can't suggest they haven't followed the POFA. I'm concerned that CEL will not discontinue if they see my defence in the 1st hearing and think they can win.

2. If the judge orders the set aside but doesn't agree that CEL should pay the £255 as costs, how does that work? Would my draft order asking that they are "paid should CEL discontinue" still get 'ordered'?

I will use the suggested threads above to construct a WS and Draft Order to see if I can mock up something which looks strong enough. I'll post it on here this week for any feedback you may have. I'm aiming to get the N244 submitted by Tuesday if I'm confident to go ahead.

England48

Hello All,

Please could you review my DO and WS posted below and provide me any feedback. I am unsure on part 2.6 & 2.7 which i pulled from a Coupon-mad post on Saggi's thread. Does my phrasing make sense? Is it too much?

I want to include more things that the Claimant needs to provide in a further hearing so that they discontinue. Anyone think of anything more to ask for?

Thanks all.

DRAFT ORDER:

• Order that the Judgement dated xxxx of xx County Court case number xxxx is set aside on the basis that the Judgement was not properly served at the Defendant’s 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 on the basis that the Defendant has a reasonable defence; or to be re-heard at a new hearing.

WITNESS STATEMENT:

I am xxxxxxxx and am the defendant in the matter.

This is my Statement in support of my application dated xxx to:

• Order that the Judgement dated xxxx of xx County Court case number xxxx is set aside on the basis that the Judgement was not properly served at the Defendant’s 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 on the basis that the Defendant has a reasonable defence; 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 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 a new address, and was registered at a new address for 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 over two years after the incident occurred 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. Considering the above I was unable to fully defend this claim. 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 On discovering this CCJ, I promptly contacted the County Court Business Centre on the Wednesday 4th April to find out details of the Default Judgement. The court papers contain no details of the alleged incident, nor the vehicle this related to. I contacted CEL on the telephone number provided on the Judgement to request information about the claim. I was told that I would receive no information or documentation before a date for a hearing had been set. This constitutes a deliberate attempt to thwart any efforts to defend the claim, in total contradiction to the guidance outlined in the Pre-Action Protocol for Debt Claims (2017) to “support the efficient management of proceedings that cannot be avoided”.

2.2. I understand Civil Enforcement Ltd to be a Private Parking Company that uses ANPR in order to issue “Parking Charge Notices”. 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. If the Claimant has not complied with the requirements of the Act they cannot claim this charge against me as the Registered Keeper in any case.

2.3. 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 the driver of the vehicle at the time of this incident. The vehicle to which I am the Registered Keeper was at the time insured to be driven by three adults and was on occasion driven by another adult with ‘DOC’ on their own comprehensive insurance. I submit that the Claimant cannot provide such evidence of the identity of the driver.

2.4. 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 submit that this is not a penalty charge notice but a private one based on contract law and therefore the Claimant must:

a) show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant
b) set out the facts on which it is asserted that the claimant has a cause of action against this defendant, and
c) identify the 'relevant obligation' of the defendant to pay parking charges and the 'relevant land' on which the parking is said to have occurred
d) state whether the claim is in relation to a 'relevant contract' or in respect of an alleged trespass or other tort (as per the POFA 2012 Schedule 4)
e) disclose full particulars and a contract, in order to evidence a claim in law
f) evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a brazen attempt at triple 'recovery' reaching over £350 despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed).

2.7. On this basis I believe that the Claimant has not provided any reasonable cause of action and absent the above being produced in short order, the Defendant asks the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs for attending, namely the £255 Court fee in bringing this set aside case, despite not being shown to be liable for any parking charge at all.

2.8. If required to defend at a further hearing, the Defendant will require all copies of paperwork, letters and other documentation including pictures of all signage from the Claimant in order to make informed decisions and statements in a comprehensive defence as keeper of a vehicle.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.

Signed
Date

KeithP

Your draft order needs more. CM suggested there should be six points.

Here's one with the six points you need:
forums.moneysavingexpert.com/showthread.php?p=74133105#post74133105

Quentin

Once the claimant has won a judgement then they can start enforcement proceedings at any time (eg. Bailiffs/attachment of earnings etc), all at your expense.

You need to ask for a hold to be put on any enforcement proceedings pending the outcome of the set aside hearing

peter_the_piper

I see you only updated your driving license, did you not update the cars details as well? If not do so quickly before more grief comes your way.

Coupon-mad

You copied an old one. More recent CEL set asides show a separate draft Order.

and will have to pay my £255

Not necessarily but that's why you do a draft order, in the hope the Judge uses it and runs with it.

England48

Hi All,

Thanks for the replies. I have added the extras in. Peter the Piper - the V5C was also updated so have changed that phrasing. I will have the WS and DO on separate sheets. Do I still need the bullets before I start my witness statement? Should the dates in my draft order be one month from when I submit? Many thanks for any final help before I submit.


DRAFT ORDER

IN THE COUNTY COURT AT: xxxxxx

CIVIL ENFORCEMENT LIMITED (Claimant)

And

MR ********************* (Defendant)


CLAIM No:**********


IT IS ORDERED that:

1. The default judgment dated XX/XX/2015 be set aside.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4pm on 18/05/18 paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on 25/05/2018.

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 plus the Defendant's costs for attending the hearing.

6. All enforcement be put on hold pending the outcome of the application.



WITNESS STATEMENT:

I am xxxxxxxx and am the defendant in the matter.

This is my Statement in support of my application dated xxx to:

!!!8226; Set aside the Judgement dated xxxx of xx County Court case number xxxx on the basis that it was not properly served at the Defendant!!!8217;s current address.
!!!8226; Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
!!!8226; Order for the original claim to be dismissed on the basis that the Defendant has a reasonable defence; or to be re-heard at a new hearing.


1. Set Aside 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 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 a new address, and was registered at a new address with the DVLA and with 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 over two years after the incident occurred 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!!!8217;s current and correct contact details. According to publicly available information my circumstances are far from being unique. The industry!!!8217;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; !!!8220;better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.!!!8221; 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."

Confirmation of this will be provided at the set aside hearing, in the form of utility bills and a Council Tax bill from Sheffield Council. The Defendant has at no time tried to avoid paying for any known debt, and was at all times there to be found by a simple trace. It is submitted that the Claimant should have taken those reasonable steps, and would have known or should have surmised that it was likely that the Defendant was not at the old address, given the length of time from the alleged parking charge and the fact that the Claimant was receiving no reply from the Defendant.

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.

1.5. Considering the above I was unable to fully defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

I have a real prospect of defending this claim because:-

2.1 On discovering this CCJ, I promptly contacted the County Court Business Centre on the Wednesday 4th April to find out details of the Default Judgement. The court papers contain no details of the alleged incident, nor the vehicle this related to. I contacted CEL on the telephone number provided on the Judgement to request information about the claim. I was told that I would receive no information or documentation before a date for a hearing had been set. This constitutes a deliberate attempt to thwart any efforts to defend the claim, in total contradiction to the guidance outlined in the Pre-Action Protocol for Debt Claims (2017) to !!!8220;support the efficient management of proceedings that cannot be avoided!!!8221;.

2.2. I understand Civil Enforcement Ltd to be a Private Parking Company that uses ANPR in order to issue !!!8220;Parking Charge Notices!!!8221;. 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. If the Claimant has not complied with the requirements of the Act they cannot claim this charge against me as the Registered Keeper in any case.

2.3. 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. The vehicle to which I am the Registered Keeper was at the time insured to be driven by three adults and was on occasion driven by another adult with !!!8216;DOC!!!8217; on their own comprehensive insurance. I submit that the Claimant cannot provide such evidence of the identity of the driver.

2.4. I further submit that the Claimant does not include !!!8216;Protection of Freedoms Act 2012!!!8217; 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 !!!8220;Parking Charge Notice!!!8217;!!!8217;, 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 submit that this is not a penalty charge notice but a private one based on contract law and therefore the Claimant must:

a) show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant
b) set out the facts on which it is asserted that the claimant has a cause of action against this defendant, and
c) identify the 'relevant obligation' of the defendant to pay parking charges and the 'relevant land' on which the parking is said to have occurred
d) state whether the claim is in relation to a 'relevant contract' or in respect of an alleged trespass or other tort (as per the POFA 2012 Schedule 4)
e) disclose full particulars and a contract, in order to evidence a claim in law
f) evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a brazen attempt at triple 'recovery' reaching over £350 despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed).

2.7. On this basis I believe that the Claimant has not provided any reasonable cause of action and absent the above being produced in short order, the Defendant asks the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs for attending, namely the £255 Court fee in bringing this set aside case, despite not being shown to be liable for any parking charge at all.

2.8. If required to defend at a further hearing, the Defendant will require all copies of paperwork, letters and other documentation including pictures of all signage from the Claimant in order to make informed decisions and statements in a comprehensive defence as keeper of a vehicle.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.

Signed
Date