CIVIL ENFORCEMENT LTD have filed a CCJ for old address

sppc42

Thanks, that makes sense. I'll contest it fully now, asking for the fine to be quashed and a refund of £255/-

Half_way

don't refer to it as a fine , it is not.
And do you know who's car park the original charge was issued in, and why?

sppc42

Yes, its at a local grocery store who have recently implemented 1hr free charging. Apparently they have outsourced it to CEL. We seem to have gone over the 1hr limit and hence the ticket.

Coupon-mad

You need to show us your planned WS and Draft Order, like the other threads you see with a Draft Order with at least 6 points to it.

Search set aside draft order and change to 'show posts' and read on...

sppc42

A quick guidance needed as I draft the WS: I went to the parking spot where the alleged breach is reported by CEL and the signage says (below the 1 Hour max stay message) - "If you breach any of these terms, you will be charged £100"

To me, that clearly is a reference to the 'driver' of the car who is parking it in the car park, its no way a breach of contract condition to the 'keeper' (me) and I definitely don't know who the driver was as the incident happened more than a year ago.

I believe this is what the keeper's liability referred by you all in the previous post. Kindly correct me if am wrong in my understanding above. If it is, will it be worthwhile to attach the photo of their signage with the above message and single it out in the WS?

KeithP

Of course any sign can only form the basis of a contract with the driver. As you say there is no way a contract can be made with a keeper who isn't there.


The keeper can only become liable for the amount on the invoice if liability is somehow transferred to him/her - usually via Schedule 4 of POFA rules.

sppc42

Thanks. So, would it be appropriate for me to attach the signage photo to the WS and also to explicitly mention this fact in the WS about the signage being a contract with the driver and not the keeper.

KeithP

Yes you could, but that will always the case with all signs.
That word 'you' is not unique to your sign.
No sign can ever form the basis of a contract with the keeper - unless he was also the driver.
That must always be the case because both parties to a contract, that's the PPC and the driver in this case, must see the terms of the contract they are agreeing to before a contract can be formed.

As I said earlier, any sign can only form the basis of a contract with a driver.

I think you are getting bogged down in a non-issue here.

sppc42

Based on all the valuable feedback I have received, plus going through all the other posts on the forum, am able to draft the below WS. Kindly let me know if it looks fine. To summarise, per my understanding, I have the below as the reasons (correct me if they are wrong).

1. set aside reason - correspondence sent to old address, claimant never attempted to contact me, whilst other agencies were rightfully able to do so, thus never giving me chance to appeal. Cite Sir Oliver Heald's quote as example
2. Order of dismissal reason - cite keeper's liability point, and fact that I can't remember who was the driver more than a year back. Further questioning CEL to provide contract details and photographic evidence to prove breach of contract with keeper.

Based on the above two, the below draft has been drafted.

---

I am xxx of xxx and I am the Defendant in this matter.
This is my statement to support my application dated xx June 2018 to:
1. Set aside the Default Judgement xxxx dated xx November 2017 as it was not properly served at my current address.
2. Order for the original claim to be dismissed
3. Order the Claimant to pay the defendant £255 as reimbursement for the set aside


1. DEFAULT JUDGEMENT

1.1. I was the registered keeper of the vehicle at the time of the alleged offence. The claim relates to an alleged debt arising from overstaying in a free retail customer car park

1.2. I understand that the Claimant has obtained a Default Judgement against me as the Defendant on xx November 2017. I understand that this Claim was served at MY OLD ADDRESS (xx) and not served at my current address (xx) where I had moved from January 2017. Confirmation of this will be provided at the set aside hearing, in the form of utility bills and a Council Tax bill from Wokingham Council.

1.3. 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. I was not aware of the Default Judgement until my new employer made me aware on xx June 2018 after running the Experian Background Search. I understand that these claims were served at an old address (xxx).

1.5. As this default does not appear on any of my credit files, and also not on the details from Registry Trust Limited, I pursued it via the Experian Background Search and made contact with the issuing court on xx June 2018 to gather more details. At the time I was advised the Claimant’s name, a reference number and contact premium telephone number. In support of this, I can provide the Experian Credit Report dated xx June 2018 and Registry Trust Limited search dated xx June 2018

1.6. On the xxth June 2018 I contacted the Court to request further detail of the Default Judgement. The particulars of the claim only give the ‘Outstanding Debt and damages’ as the reason for the Claim, in support I can provide the details the court has emailed to me.

1.7. I have never received any previous documentation from the Claimant in this matter and I was never able to properly challenge the Claimant’s claim. Further I put the Claimant to strict proof that they did post such communications to the Defendants address.

1.8. I believe the Claimant has behaved unreasonably in pursuing the claim against me without ensuring they held the Defendants current and correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

1.9. Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses." The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That 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.”

1.10. To further demonstrate the irresponsible working of the Claimant on sending notices to old addresses, I would like to cite the incident on XX July 2017 when I was contacted by ‘Pastdue Credit Solutions’ via email at my email address ‘xxxx@gmail.com’, requesting to contact DVLA regarding a pending car tax. As a law abiding citizen, I immediately contacted DVLA and got the registered address modified to my current address and also paid the pending car tax. This clearly shows that other debt collection agencies have behaved in a responsible manner, by reaching out to me on different channels like current address and email, when their notices went unanswered as they were delivered to old address, to make me aware of an outstanding payment, but the Claimant never took such measures and kept on sending the notices to my old address. This clearly shows a disregard for correct working practices by the Claimant who is clearly just interested in exacting monetary gains by deliberately sending notices to old addresses and never making a rightful attempt to contact me. A copy of the email sent by ‘Pastdue Credit Solutions’ dated xx July 2017 has been attached.

1.11. Further to the above, I checked with DVLA if there’s a rightful way to determine if there are other pending such notices for me as a registered keeper of the vehicle, as I was worried there might be possibility of other such notices being sent to my old address. DVLA’s reply was there’s no way to find if any other such notices would have been issued, but the issuer can clearly follow other channels, like ‘Pastdue Credit Solutions’ to determine to current whereabouts of the registered keeper and serve them a notice there. Clearly the Claimant has made no such effort and has relied on sending the notices to the old address.

1.12. I submit that by the virtue of Claimant sending the letters to my old address, I was not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented me from being able to get this charge cancelled by the Retailer, a right that I believe existed as an exemption clause for shoppers written into the landowner contract/retailer user manual but a material fact which is withheld from consumers. If I could have appealed to POPLA or had been informed that the Retailer/landowner could deal with such complaints and cancel charges, I would have done so.

1.13. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendants current address when bringing the claim.

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

2. ORDER DISMISSING THE CLAIM

2.1. 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. I further believe this Claim relates to a ‘Parking Charge Notice’ issued on XX XXXX 201X and therefore the Schedule 4 of Protection Of Freedom Act 2012 does not apply and the Registered Keeper of the vehicle cannot be held liable where a breach of contract may have occurred by a driver of a vehicle the Defendant is the Registered Keeper and where said keeper is unable to identify the driver.

2.4. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 16 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

2.5. For the Claimant to have obliged the Defendant to provide the drivers details at the time of said breach the Claimant would be required to apply for a ‘Norwich Pharmacal Order’, I am not aware of any such order being made upon the Defendant.

2.6. Furthermore, given the time delay of approximately more than a year from the alleged breach of contract, it is unreasonable to expect the Defendant to have a record of who was driving the vehicle at the time of the offence.

2.7. The Claimant has not provided any photographic evidence pertaining to the alleged breach. A copy the request dated xx June 2018 made to the Claimant to provide the same has been attached.

2.8. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.8.1. 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.

2.8.2. 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.

2.9. 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.

2.10. Alternatively, if the Claimant disagrees with the above, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least all of the following information:

2.10.1. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge

2.10.2. A copy of any contract it is alleged was in place (e.g. copies of signage)

2.10.3. How any contract was concluded (if by performance, then copies of signage maps in place at the time)

2.10.4. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper

2.10.5. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

2.10.6. If charges over and above the initial charge are being claimed, the basis on which this is being claimed

2.10.7. If Interest charges are being claimed, the basis on which this is being claimed.

2.11. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

2.12. 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.

The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.
Full Name: xxxxx
(Defendant)
Dated xx June 2018

KeithP

See the six point DRAFT ORDER in this post:

forums.moneysavingexpert.com/showthread.php?p=74183477#post74183477

Please also read the comments by Johnersh, a solicitor, in subsequent posts on that thread.