CEL CCJ Default Judgment Request for Set Aside

MFTaylor3

Good luck going to keep an eye on this I am in the same position with the same company

System

If this is for the set aside hearing you must ask the judge to order CEL to pay your set aside fee based on their continuing to use outdated addresses rather than take reasonable steps. This is from a DVLA Freedom of Information Request (FOIR3988) from June 2014 so CEL knew about the DVLA allowing the use of Trace and the sensible reasons for using - but won't as they can get default CCJ's.

Take a copy with you and present it when asking for the monies to be paid.

[Deleted User]

Draft your defence NOW. It'll help clarify your thinking and you can produce it to the court to show you have a case which is defensible. That's the easiest way to meet the test at CPR13

You are required to show that your case is stronger enough on the evidence that you should be provided with the opportunity to present it at trial.

Read the court rules carefully. You want to ask the court to dismiss the claim on the basis that there was no reasonable presumption that you resided at the address in question - none of their post was responded to. That being the case, the onus was on them to check. In particular read CPR 6.9(3)

If you want the case struck out you need to argue that the proceedings have, as a result, never been served and are defective.

In my view, your statement in its current form doesn't advance that technical argument, so you may not be permitted to make it.

allesklar

IamEmanresu wrote: »

If this is for the set aside hearing you must ask the judge to order CEL to pay your set aside fee based on their continuing to use outdated addresses rather than take reasonable steps. This is from a DVLA Freedom of Information Request (FOIR3988) from June 2014 so CEL knew about the DVLA allowing the use of Trace and the sensible reasons for using - but won't as they can get default CCJ's.

Take a copy with you and present it when asking for the monies to be paid.


This is really useful thank you. I'll use this question CEL's 'reasonable efforts' to ascertain my current address.

allesklar

I have drafted the following to structure my thoughts on the day. This covers the application for set aside as well as the key points of my defence for the original claim. CEL still haven't furnished me with anything and I have phoned the court to ask if there had been anything submitted that i should be privy to. So most of my defence is going off past threads on this forum.

I am XXXXXXXXXX, the defendant in this matter.

I deny I am liable for the entirety of the claim on the following grounds:

1. The Claimant has not adhered to CPR 3.9 (3) where they had reason to believe that the address of the Defendant is an address at which the Defendant no longer resides or carries on business. The claimant did not take reasonable steps to ascertain the address of the defendant’s current residence or place of business despite having 27 months to establish an address between the alleged incident (XXXXX 2015) and the default judgment (XXXXXXX 2017). This has lead to a defective service and an irregular judgment.

2. The Defendant believes that the Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012). I therefore require from the claimant:

2.1 Copies of the Parking Charge Notice issued on XXXXXXX 2015.

2.2 Evidence of postage of the Parking Charge Notice in accordance with POFA 2012 Schedule 4 9(6).

2.3 Evidence identifying the driver of XXXX XXX at the given time and location.

3. The Claimant failed to meet the Notice to Keeper obligations of POFA 2012 Schedule 4 9(5) and (6). Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold the defendant liable under the strict ‘keeper liability’ provisions:

3.1 Henry Greenslade, lead adjudicator of POPLA in 2015 and an eminent barrister and parking law expert stated that, “However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.” POFA 2012 Schedule 4 4(5) also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and ‘relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. The Claimant cannot drastically inflate the charge when neither the signs, nor the Notice to Keeper, nor the permit information mentioned a possible £372 for outstanding debt and damages. The additional costs, which the Defendant contests have not been incurred, are none of his concern.

4. The Claimant has added unrecoverable sums to the original parking charge. The Defendant believes that Civil Enforcement Ltd has artificially inflated this claim. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £372. If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered – they are staff performing the task that they have been employed for and are essential to the Claimant's business model.

5. Due to the length of time the Defendant has little to no recollection of the day in question. It would not be reasonable expect a registered keeper to be able to recall the potential driver(s) of the car 3 years later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA 2012.

6. The Defendant proposes the Claimant has no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

7. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

7.1 There was no compliant ‘Letter before County Court Claim’ under the Practice Direction.

7.2 This is a speculative serial litigant, issuing a large number of ‘draft particulars’ commonly referred to as ‘Roboclaims’.

7.4 The Defendant has no idea what the claim is about why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, the Defendant has not received any evidence of contravention or photographs. These documents, and the Letter before County Court Claim should have been produced, pursuant to Paragraph 6 of the Practice Direction Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to ‘take stock’, pursuant to Paragraph 12 of the Practice Direction.

7.5 The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true to the best of my knowledge and recollection.



xxx
XX September 2018


Very grateful if anyone spots any relevant procedure rules or pertinent legislation that i have missed.

This feels like a dumb question..... but should i hand this over to the judge on the day or use it as a script?

Coupon-mad

This feels like a dumb question..... but should i hand this over to the judge on the day or use it as a script?

As a script, unless the Judge asks to see a copy (take 3 with you in case CEL turn up).

allesklar

I know this hearing is for application for set-aside but is there a possibility the judge will dismiss the entire claim?

I've got my key points ready to go of why i have a good chance of winning the case but i just want to get an idea what the judge is likely to focus on.

Also, is the schedule of costs which i want reimbursed (namely, £255 application fee) a separate document or is what i've included in my WS sufficient?

Coupon-mad

I know this hearing is for application for set-aside but is there a possibility the judge will dismiss the entire claim?

It's possible but has only been seen to happen a few times.

Try hard to show the case is without merit, and that there was no 'cause of action' and you might find a Judge agrees.

Take a wage slip or other income proof, and a 'costs schedule' with you, that includes your travel, parking, and loss of leave or pay, all of which can be added to the £255.

nosferatu1001

Have you writtena Draft Order?
If not you REALLY should do
That will set out what you want the Judge to order, and should include the within 14 days reimbursement of your set aside fee of £255 AND your loss of leave / earnings for half a day, capped at £95, parking and mileage.
This stops them discontinuing at a later date.

allesklar

Yeah I submitted my draft order along with my witness statement a couple of months ago.