PCN CCJ in default already, need some pointers

twhitehousescat

your aim is to show the court why the claim went thru without your knowledge , and briefly to explain why , if you had received a claim form you would have fought it (and won)

why did you not get claim form ?

fayerie

I work away much of the time, all of my bills and important letters are digital so i can respond to them werever i aam at the time. i dont open anything that comes through the door as it is all c&@p anyways. i will often come back from working with 20 or more letters on my mat. after a while i learned to just shred it as it was always ''heres some cheap boiller cover'' or ''save the rainbows kittens and unicorns by entering our free (not free) sweepstakes'' so i may have had it, but i can guarantee i never read it.


Incoming revised WS for your perusal.

fayerie

I am XXXX XXXX and I am the Defendant in this matter. This my supporting Statement in support of my application dated xxxxx to:

1. Set aside the Default Judgement dated xxxxx as I have not received any documents in regards to this claim and as such have not been able to mount a reasonable defence against the claim;

2. Order for the original claim to be heard at a re-hearing.

1. Default Judgement

1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant. I am aware that the Claimant is Parking Control Management (UK) Ltd I further contest this charge for the reasons outlined in Part 2 of this defence.

1.2. In this case I have seen no documents or received any notice of the intent to pursue the defendant in court action for the alleged contravention of the parking policy claimed by the claimant.it would be reasonable to assume, with no response from the myself, that I had not received and read any of the notices or letters that have come to me. Given that the I am to be assumed to be of sound character, that any notices for court proceedings would be immediately acted upon to prevent any damage to the my character or financial standing.

1.3. I am an avid user of digital technology any and all communications to myself from important people and companies are now in digital format to make it easier for me to keep informed with regards to financial matters. This is due to the fact I work away most of the time and do not like coming home to piles of letters and bills when I do get time off. As such the majority of letters that end up on my mat are junk and are treated as such, and get filed in the recycling bin.

1.4. I only became aware of the Defaulted judgement upon inspection of my credit report via a popular mobile application. Upon discovering a substantial drop in score I initially panicked.

1.5. Considering the above I was unable to defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

2. Order for the original claim to be heard at a re-hearing

I am now aware that the claim is for an unpaid Parking Charge Notice (PCN). I contend that I am not liable for the parking charge and the grounds for this are laid out below in further detail, and in summary are:
• Unclear, ambiguous, inadequate and lack of International Parking Community (IPC) compliant signage
• No contractual agreement with the driver
• Vehicle Control Services Limited is not the lawful occupier of any land around the area in question
• There is no evidence to indicate I parked the vehicle in the location that caused VCS to place an invoice on my vehicle

Summary of Events

2.1. I was, at the relevant date, the registered keeper of the vehicle in question registration number XXXXXX. Below is a summary of my version of the events.

2.1.1. I work long hours and am often away from home for several days at a time due to the nature of my employment with XXXXX as a civil engineer (XXXXX specialist)

2.1.2. From my recollection (and as is typical behaviour for myself) I will park my car in the same space that I remove a work van from in the fleet bays at the rear of my office building.

2.1.3. I will leave my car keys in my office top drawer where several individuals are fully aware they are kept in case my vehicle alarm goes off or a member of staff needs to relocate my vehicle to allow a fleet vehicle to be placed in the fleet bays. As is often the case we have a slight shortage of parking bays and it is not unusual for a member of staff to move my car. All drivers on site have fully comprehensive insurance policies provided by the company, and so are legally permitted to drive my car.

2.1.4. Upon returning from a night shift I observed my vehicle parked in a marked bay AND on double yellow lines (Please refer to Appendix 1 for photographs of the bay in question). It was particularly early in the morning and I knew the business park would not open for daytime trading for several hours. I needed to unload my vehicle and return the van keys and paperwork from the previous shifts to the offices upstairs before I could leave for home; I estimate this process takes around 5 minutes.

2.1.5. Upon returning to my car after collecting my car keys from my desk drawer I came outside to see two males looking at my car intently. Feeling threatened as a woman at stupid o clock in the morning and being completely alone I held back as I did not want these two unknown individuals to cause me harm. I did not know who they were and they did not appear to be wearing uniforms.

2.1.6. Once the two men had left I went to my car and found the parking invoice stuck to my windscreen. I placed the invoice in the in tray of our on-site administrator’s desk and heard nothing afterward. I was under the impression that the admin team had dealt with the notice, I am now aware this is not the case.

Unclear, ambiguous, inadequate and lack of International Parking Community (IPC) compliant signage

2.2. The Claimant’s signage with the largest font at this site states “PRIVATE LAND”. A further segment with smaller writing states “No Parking” Followed by again smaller text reading ‘’On Double Yellow Lines’’ It is submitted that if these notices are attempting to make a contractual offer, then as they are forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant. Also in the position the car was parked there are in fact no visible signs. (Please refer to Appendix 3 for photographs of a full 360° from the position of the car)

No contractual agreement with the driver

.2.1.1. The signage forbids parking and therefore there is no consideration. The signage that is present is a strict prohibition of parking on double yellow lines. (Please refer to photographs in Appendix 2 for images of signage on the site) contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier, I have reasonable belief that they do not have authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

2.1.2. The above point was recently tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that:

“If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

While this is a County Court decision and therefore not binding, it is similar in nature to the present case and may be considered as persuasive.

Vehicle Control Services Limited is not the lawful occupier of any land around the area in question

2.4. Consequently, should a contract be found to exist between the landowner and the driver, The Claimant not having been identified as a creditor are unable to pursue this claim as stated on page 10 [Part B: 1(2.1)] and page 27 [Other Signs: (1)] of the IPC CoP. To date, no authority has been provided that establishes that The Claimant are authorised to pursue this claim on behalf of the landowner, which also does not comply POFA, 2012.

2.5. The IPC code of conduct states that a grace period must be allowed in order that a driver might spot signage, go up to it, read it and then decide whether to accept the terms or not. A reasonable grace period in any car park would be from 5-15 minutes from the period of stopping. This grace period was not observed and therefore the operator is in breach of the industry code of practice. Additionally no contract can be in place by conduct until a reasonable period elapses.

2.6. I contest that I was clearly given no opportunity to study and agree terms and have an honestly held belief that this company engages in the predatory practice of having signs, with a density of text that is difficult for the average driver to see, and then give little or no notice before issuing a parking charge. I further honestly believe that there was not only no intent to create legal relations but indeed no legal relations were entered into.

2.7. Thus the signage is simply a device to entrap motorists into a situation whereby the Claimant sends them invoices for unwarranted and unjustified charges, for which motorists can have no contractual liability due to the terms and conditions not having been sufficiently brought to their attention.

2.8. The Court is invited to dismiss this Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

2.9. In summary, and to stress the point that there is growing anger at the dubious practices of private car parking companies of which I believe I the Defendant has fallen foul of, I would also like to draw the attention of the court to a debate in Parliament on 21st March 2017 that focussed on the relationship between the DVLA and private car parking companies, and the latter’s access and (mis)use of data. In the debate the Rt Hon Steve Double MP commented that “We need to look at the relationship the firms have with the DVLA. In my view, they are abusing their privileged relationship and their access to drivers’ information.”

The Rt Hon Kevin Foster MP surmised that “We got rid of the cowboy clampers in the last Parliament. The suspicion is that the cowboy clampers have now become the cowboy finers and cowboy invoicers. Although they may wish to leave their spur marks on car parks across the country, I hope the Minister will be clear what action will be taken to ensure that they have to ride off into the sunset for good.”

3. Counterclaim

It is not possible that a valid parking charge exists for the following reasons:

3.1. The signage cannot be safely read while driving. There can therefore be no meeting of minds and no contract by performance.

3.2. The signage is forbidding and makes no offer to the motorist. There can therefore be no contract.

3.3. Even if there was a contract the signage fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014, and so any contract would be non-binding on the consumer.

3.4. Even if there were a binding contract the charge would be a penalty and unfair consumer term as it is not a genuine pre-estimate of loss and is not saved by the case law in ParkingEye v Beavis.

3.5. There was therefore no valid reason to apply for my keeper data from the DVLA.

3.6. Additionally the operator contract with the DVLA only allows them to obtain data for parking contraventions and not for briefly stopping.

3.7. My name and address information (together with other information) is classified as personal data within the meaning of s1(1) of the Data Protections Act (DPA). The Claimant has misused this data by attempting to claim a charge when there is no possibility that a lawful reason exists as it has not been proven that I parked my vehicle in the location that supposedly warranted an invoice. As I have been informed on a telephone conversation with the litigation department of VCS that my information has been passed along to a collections agency (VCS ltd obtained the my personal data from the DVLA under the Keeper at Date of Event (KADOE) agreement that strictly forbids passing on of the information to third parties. It is my belief that VCS Ltd has sold my personal data with no prior written permission from the DVLA and is therefore in breach of the KADOE contract clause D5.1.)

3.8. This is therefore a breach of data principle 1 (data must be used lawfully) and 2 (data must only be used for the purpose provided).

3.9. The case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.

3.10. The case of VCS v Phillip, claim number C9DP2D6C Liverpool 07/12/2016, while not binding, concerns a motorist sent a parking charge for briefly stopping at Liverpool Business Park. The signage there has the equivalent forbidding wording to the signage in this case. The judge ruled that no contract could exist and therefore data had been wrongly obtained from the DVLA. This is therefore a persuasive case that a DPA breach occurs when a parking charge is not legitimately pursued, and that a sum of at least £250 is compensation for pursuing a purported parking charge when there is no reasonable prospect of success.

3.11. Order for the Claimant to pay £255 as reimbursement for the set aside fee.

3.12. Due to the undue stress and terror this case has brought upon me, and the inconvenience of having my credit score destroyed mere days before I was due to have a meeting with the bank to renegotiate my mortgage rates, I would also like to file for damages caused by this unwarranted and unnecessary CCJ being added to my file, caused by the unsubstantiated claim of the unscrupulous VCS ltd. As a person with Diagnosed and Medicated mental illness, namely severe long term depression, and anxiety disorder, I would claim that compensation not exceeding £500 would be a reasonable sum to request.

3.13. I therefore claim £755. With consideration to be made for other out of pocket expenses to follow, which may include but not limited to; missed work/annual leave/parking charges/fuel and/or transport costs.

Quentin

This doesn't sound like grounds for a set aside!


This looks like confirmation you have ignored all documents regarding the court claim

Coupon-mad

And you need a Draft Order.

As seen in other set aside threads, search the forum for set aside Draft Order six points.

Spoke again to the court and they have no record of the collection agency being involved (which sounds like they should have done)

No they shouldn't, that is not relevant.

twhitehousescat

its like war and peace !

look , did they have the correct address for you , yes or no , I dont give a monkeys about digital or 20 days away from home

the address on your V5 must be an address that you are "contactable" at

"I throw all post away as its junk mail"

yup , and the next thing will be bailiffs for speeding offence , etc etc and licence revoked


if those cretins have proof of postage then the letter / court papers were DEEMED to be delivered in 2 working days

kill 90% of that latest thing and concentrate on getting this set aside - you will refit the cased later

Quentin

As posted, you look to have received documents and ignored them - the court will have a record of sending their claim and the judgement to you, and the claimant will have records showing all the correspondence they sent you


Think hard on whether this is a good idea (and whether the £255 you will be paying is a sound idea)


Maybe consider a set aside by consent (would involve paying the ccj off but only a £100 fee to the court)

Quentin

How old is the CCJ?


If it was handed out less than a month ago you may consider paying it off in full immediately which would mean you would get the CCJ removed from the register, thereby alleviating your terror as well as allowing you to remortgage

twhitehousescat

Quentin wrote: »

How old is the CCJ?


If it was handed out less than a month ago you may consider paying it off in full immediately which would mean you would get the CCJ removed from the register, thereby alleviating your terror as well as allowing you to remortgage

the op hasn't checked there mail yet :rotfl:

nor have they seen the official court letter :rotfl:

Quentin

According to the OP she has discovered this ccj this week via her regular digital check on her credit rating!