CEL CCJ Default Judgment Request for Set Aside

allesklar

So had my hearing today and got the default judgment set aside :-)

Hearing was scheduled for 1400 but so were 2 other cases one of which was UK parking management and the defendant was not in attendance. I wondered if this could have been another default judgment on some poor soul.

Didn't get in to see the judge until 1530. He told me i had to convince him why he should grant a set aside and that i could potentially win the case. I said that CEL hadn't made reasonable enquiries to my current address. He agreed due to the amount time (over 2 years between PCN and judgment) however he said had it been a shorter period of time he may have considered their effort reasonable.

CEL weren't in attendance and the only thing the judge read out from them is that i had not changed the address on my car.

The judge didn't delve into the case itself and focussed purely on the set aside. My only concern is that he seemed skeptical when i said i was not the driver and that i could not recall who was driving the car on that day as it was over 3 years ago.

Afterwards i asked the court usher (who was very helpful) if i could have any copies of paperwork that had been submitted by CEL. She kindly photocopied the case details which gives a breakdown of the costs CEL are claiming:

£240 - outstanding debt and damages
£40.00 - interest (pursuant to S.69 of the County Courts Act 1984 Rate 8.00% PA)
£100.00 - Total Costs

£370 - TOTAL

(i've not given exact figures in an attempt at anonymity)

I now have 14 days to submit my defence which i will post on here shortly for any helpful red penning.

Should i get in touch with CEL to ask for copies of PCN/contract/proof of postage/evidence of driver ID etc? I'm concerned they won't give me it in time and therefore my defence might be half baked.

allesklar

Aside to my last post, I typed up a last minute chronology which i offered to the judge and think he found this quite useful. Just a table of dates and events. Should have done this at first as it would have provided a bit more clarity.

[Deleted User]

The test for set aside is that you have a defence that is more than merely arguable. Once he's found C had not checked address and it'd gone to the wrong address then he's found defective service inmho.

That being the case he was obliged to give you the set aside. C was never entitled to judgment if valid service wasn't affected. I hope you got costs or at least your costs reserved until determination at trial.

Plenty of people on here do defences with scant information. What it does mean is care needs to be taken in covering off the eventualities because C may later argue all sorts of points in their witness statement.

Personally I think courts should be more ready to strike out 1 sentence particulars. If there were more details, defences would be shorter and all of the issues clearer.

When preparing the defence you can have phrases like:

It is neither admitted nor denied that [defendant name] was the driver. It is now 4 years since the material date. The particulars of claim set out no positive case regarding the identity of the driver and are speculative in nature. The claimant is put to strict proof.

allesklar

Costs weren't mentioned which i should have brought up but didn't as i was tunnel visioned on getting that set aside.

I believe CEL's main argument is going to be that it was my responsibility to keep my address current.

My defence will be that they aren't POFA 2012 compliant. Namely:

1. Did not meet strict timings in issuing charge (POFA Sch 4 9 (5))
2. Their PCN don't comply with POFA 2012 Sch 4 wording - although i haven't seen the PCN in question.
3. £370 is inflated and CEL can only recover the amount on original PCN (POFA Sch 4 4 (5))

Will the fact that i don't have the original PCN undermine point 2?

Can the judge reduce the amount the claimant gets if they win or is it an all or nothing case?

allesklar

Going to send this letter tomorrow to CEL:


Dear Sir or Madam,

I am writing to request a full disclosure package regarding the alleged parking incident on 25 August 2015. This should include all internal emails and documentation referring to my case. Furthermore, it must include a copy of the original parking charge notice and evidence of postage, evidence identifying the driver, copy of the contract entitling you to litigate on behalf of the landowner.

Under General Data Protection Regulation you are obligated to disclose all information and personal data you hold on me and failure to do so will result in legal action.

Coupon-mad

I believe CEL's main argument is going to be that it was my responsibility to keep my address current.

No, that ship has sailed for them with the set aside being granted already.

Their main arguments will be the usual dross about a contract and you agreeing to pay it, assuming you were the driver, etc. Basically these idiot companies bully people and say: ''it's a debt, give us the money and more, and shut up''.

And IMHO you are missing a trick if you don't send CEL a copy of your 'costs schedule' now, in the same envelope as that SAR, and remind them of the draft order about them being liable for your summarily assessed costs if they now discontinue, which include £255 fee, plus up to £95 for loss of leave/earnings for the first hearing, and the same again for any second hearing regarding the claim itself, plus travel of £xx and parking of £x for each hearing.

Also send a copy for the named Judge at the court, quickly (tomorrow), and remind them of your draft order and that you are enclosing your costs schedule now because you fear the Claimant, having not bothered to turn up to the set aside hearing, will now discontinue and hope to get away without any costs against them.

Warning - no using signed-for post. Wish I had a pound for every time we've said that (no asking why not, been done to death, and easy to search for).

sppc42

Can't thank you more enough for this post, I am in a similar boat and have my hearing in couple of days for the set-aside. I would be keeping an eye on you defense statement once you get that out.

congrats for getting the set-aside!

allesklar

This is the first draft of my defence.

Interested in any feedback on whether I should put more emphasis on lack of POFA compliance?

Since i'm denying i was the driver can i still question the validity of the signage or is this an irrelevant defence?


IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

CIVIL ENFORCEMENT LTD (Claimant)

-and-

XXXXXXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

Preliminary

1. The particulars of claim lack specificity. The Defendant is prejudiced and is unable to prepare a full and complete defence. The Defendant reserves the right to seek from the Court permission to serve an amended defence should the Claimant add to or expand his particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the particulars.

2. The particulars of claim fail to refer to the material terms of any contract and neither complies with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

Background

3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings.

4. It is neither admitted nor denied that on [date] the Defendant's vehicle was parked at [location]. Due to the length of time passed since the alleged incident the Defendant is unable to accurately recall the date in question and has not seen evidence proving the vehicle was parked in the respective location.

Failure to follow Protections of Freedoms Act 2012 Schedule 4

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

a. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").

b. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

(1) There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and:

(2) That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

(3) It is not admitted that the Claimant has complied with the relevant statutory requirements.

c. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances where a criminal offence has been committed. Those provisions do not apply to this matter.

Alternative Defence - Failure to set out clearly parking terms

6. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

7. It is denied that the Claimant has any entitlement to the sums sought.

8. Schedule 4 POFA Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £150, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

9. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true.




XX/10/2018

KeithP

allesklar wrote: »

Since i'm denying i was the driver can i still question the validity of the signage or is this an irrelevant defence?

Yes you can.

A statement like: "Having visited the site since the alleged incident, it is clear that the signs are absolutely abysmal" would fit nicely in your witness statement - together with evidence.