CIVIL ENFORCEMENT LTD have filed a CCJ for old address

Coupon-mad

You need the draft order.

The sign is nothing really, at this stage. The contract is ALWAYS made with the driver.

sppc42

The thread about the Draft Order was really helpful and made me amend some points. Also, I was able to find the notices sent to me via PastDue credit solutions and DVLA themselves in July 17, which clearly shows that they were able to ascertain my correct new address and serve me notice there. I believe this is a 'killer' point to get a set-aside, coupled with the fact that I was never served a notice at all, it all went to my old address.

For the dismissal, am still not entirely sure if I have killer point. I have mentioned about the POFA compliance and Sir Oliver Heald, lack of photographic evidence and standing by the CEL, but is it enough to convince the judge that I have a defensible case enough to be dismissed altogether?

Kindly let me know.

I came to know of the CCJ last thrusday, so I want to apply for set-aside by Tuesday max as I have understood that time is of essence here.

Below is the final edited text. DO will be on a separate page and WS on another.

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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/2017 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 xx/xx/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 xx/xx/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.
!!!8195;
Witness Statement

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 on the basis that it was not properly served at the Defendant’s current address.
2. Order the Claimant to pay the defendant £255 as reimbursement for the set aside
3. 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 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 the Defendant had moved from January 2017. Confirmation of this has been in the form of utility bills and a Council Tax bill from xxxx 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. The Defendant was not aware of the Default Judgement until his new employer made him 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 Defendant’s credit files, and also not on the details from Registry Trust Limited, the Defendant pursued it via the Experian Background Search and made contact with the issuing Northampton County Court on xx June 2018 to gather more details. At the time he was advised the Claimant’s name, a reference number and contact premium telephone number. In support of this Experian Credit Report dated xx June 2018 and Registry Trust Limited search dated xx June 2018 have been provided.

1.6. On the xxth June 2018 the Defendant 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 details the court had emailed to the Defendant have been provided.

1.7. The Defendant has never received any previous documentation from the Claimant in this matter and was never able to properly challenge the Claimant’s claim. Further, Defendant puts the Claimant to strict proof that they did post such communications to the Defendant’s address.

1.8. The Defendant believes the Claimant has behaved unreasonably in pursuing the claim against him without ensuring they held the Defendants current and correct contact details. According to publicly available information the Defendant’s 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 QC MP 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, the Defendant would like to cite the incident on XX July 2017 when he was contacted by ‘Pastdue Credit Solutions’ via email at his email address ‘xxxx@gmail.com’ and also via normal mail to his new address (xxxx), requesting to contact DVLA regarding a pending car tax. As a law abiding citizen, he immediately contacted DVLA and got the registered address modified to my current address and also paid the pending car tax with any associated fine. This clearly shows that other debt collection agencies have behaved in a responsible manner, by reaching out to the Defendant 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 Defendant’s 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, copy of mail send to Defendant’s new address (xxxx) and copy of letter from DVLA dated xx July 2017 after Defendant contacted them has been attached.

1.11. Further to the above, the Defendant checked with DVLA if there’s a rightful way to determine if there are other pending such notices for him as a registered keeper of the vehicle, as he was worried there might be possibility of other such notices being sent to his old address. DVLA replied that 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. Above entails, as per CPR 6.9 (4), that proceedings were not validly served because claimant was incorrect in assuming that this was Defendant’s last known address and did not take reasonable steps to ascertain the Defendant’s current address. This leads to no service, they were not entitled to judgment and the court must set aside the claim

1.13. The Defendant submits that by the virtue of Claimant sending the letters to his old address, he was not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented the Defendant from being able to get this charge cancelled by the Retailer, a right that he 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 the Defendant could have appealed to POPLA or had been informed that the Retailer/landowner could deal with such complaints and cancel charges, he would have done so.

1.14. On the basis provided above the Defendant would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.15. Considering all of the above the Defendant was unable to defend this claim properly. Defendant believes that the Default Judgement against him was issued incorrectly and thus should be set aside.

The Defendant have a real prospect of defending this claim because:-
2. ORDER DISMISSING THE CLAIM

2.1. On discovering this CCJ, the Defendant promptly contacted the County Court Business Centre on the Thursday xx June 2018 to find out details of the Default Judgement. The court papers contained no details of the alleged incident, nor the vehicle this related to. The Defendant contacted CEL on the telephone number provided on the Judgement to request information about the claim. He was told that he 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. The Defendant understands 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.

2.3. 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’, the Defendant thus dispute the claim in its entirety as he does not know the wording of the contract nor does he know the means by which the contract was alleged to come into force

2.4. The Defendant understands 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 the Defendant as the Registered Keeper in any case and where said keeper is unable to identify the driver.

2.5. 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.

2.6. 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’, the Defendant is not aware of any such order being made upon him.

2.7. 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.

2.8. 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.

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

2.9.1. 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.

2.9.2. 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.

2.10. On this basis the Defendant believes that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

2.11. 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:

2.11.1. 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

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

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

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

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

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

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

2.11.8. 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 £345 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).

2.11.9. 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

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

2.13. 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.

2.14. 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.

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

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Thanks!

Coupon-mad

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

How do you know that the claim relates to that? Also I wouldn't affirm that there was an 'overstay' (again you can't know this).

You said:

The particulars of the claim only give 'Outstanding Debt and damages' as the reason for the Claim,

Have you now seen the claim form then? Did the claim form say 'full particulars of claim to follow?'

I would be saying near the start, that this Claimant served NO particulars of claim.

sppc42

Noted.

I would be saying near the start, that this Claimant served NO particulars of claim

I'll edit it to reflect the above.

But does the rest looks good? Am kind of confident for the set-aside, but still not 100% on the order dismissal. I'll be sending over all the paperwork by tomorrow, so will keep posted how things go.

sppc42

Just spoke to DVLA - they confirmed that the parking companies can use V888/3 form to query DVLA any number of times for a registered keeper's details, there's no restriction on the number of time this request can be made.

This gives more weightage for the set-aside as CEL should have used this to check the latest address before filing court application, which was done in Nov 17 and my address was updated with DVLA on July 17!

Coupon-mad

That's not correct. They can only enquire ONCE per parking event.

Someone at the DVLA misunderstood or gave you wrong info, and phone calls are utterly pointless. Email is better, would have given you something tangible (even if wrong!) rather than hearsay from a phone call with a clerk. The call gets you nowhere, and has confused you more and might take you off on a tangent.

KeithP

sppc42 wrote: »

Just spoke to DVLA - they confirmed that the parking companies can use V888/3 form to query DVLA any number of times for a registered keeper's details, there's no restriction on the number of time this request can be made.

But only once per event.

Many events... then yes of course many requests for keeper details.

sppc42

Hi All,

Revisiting this thread as I finally have my hearing scheduled for set-aside on 2nd October (after a wait of almost 4 months!). I have been gathering my notes for the same. In the meanwhile, CEL responded to my SAR request and have given me the copy the PCN, followup notices, the CCJ documents etc.

Do I need to submit these documents also in court before (2 days) of my actual hearing?

Also, am fairly confident of the set-aside as the main arguments being -
-- I was never given a chance of legal defense and
-- also citing the example of other credit agencies successfully obtaining my new address and CEL never doing that and kept sending communications to my old address.

I hope this should suffice for the set-aside, please let know if am missing out something.


My main concern is the 'Dismissal of the claim itself' - am struggling with my arguments that I plan to put forward to the judge. Kindly guide me on the few points below
1. I've been told that CEL does not uses POFA Schedule-4 compliant wording. What exactly is that they are using that is non-compliant?
2. I'll definitely be asserting that I can't recollect who the driver was, as I can't remember things happened 16 months ago. Will that be sufficient to deny keeper's liability?
3. Can I pursue the point that CEL needs to prove that they served the PCN within 14 days otherwise the PCN is invalid? They have just given me a copy of the PCN they served to my old address, but does that prove it was served within 14 days, esp if it was sent to my old address?

Or anything else that I can cite for the dismissal of the claim.

Apologies, just getting a bit nervous as the hearing date approaches.

Would appreciate any pointer on the above.

Thanks

Umkomaas

1. I've been told that CEL does not uses POFA Schedule-4 compliant wording. What exactly is that they are using that is non-compliant?

Do you have a copy of it? Have you compared it to Schedule 4 of PoFA? Pedantically .....?

2. I'll definitely be asserting that I can't recollect who the driver was, as I can't remember things happened 16 months ago. Will that be sufficient to deny keeper's liability?

Never .... Keeper Liability will always apply if the PPC has met the strict criteria and requirements of PoFA, regardless of the keeper saying they don't know/recollect who the driver was.

3. Can I pursue the point that CEL needs to prove that they served the PCN within 14 days otherwise the PCN is invalid? They have just given me a copy of the PCN they served to my old address, but does that prove it was served within 14 days, esp if it was sent to my old address?

A PCN isn't invalidated by an issue of it later than 14 days (provided it is an ANPR PCN). It just sends Keeper Liability out of the window. If, for example, you admit to being the driver, it is most definitely still in play.

sppc42

Thanks for the quick reply.

Am attaching a copy the PCN (hidden PII data). To me, it looks they have got all the wordings as listed
6
Image: https://imgur.com/a/vN2YUWV

Am getting really confused about the dismissal claim now, can you point me to any valid arguments that I can use in my defense to dismiss the claim?

Also, do I need to submit the copy of the SAR that CEL has provided me to the court for the hearing?

Thanks