CCJ Received - Excel Parking Services Ltd/ BW Legal

saver13

Hello,

I am desperately looking for help, as I recently checked my credit file to find I had been given a CCJ by default judgement, dated 29/01/2018 for £240.00 for a parking ticket obtained in February 2016, for overstaying in a pay and display car park in Swansea. I'm pretty sure I'll be trying to get a mortgage soon and I really don't want this on my credit file.

I remember receiving the ticket, but mistakenly followed the advice of "ignore", not expecting anything to come of it.

I contacted Northampton County Court Business Centre by email on 6th June 2018 to get more information, however have not been able to proceed further until this stage as I was struggling to save enough money to pursue this.

I'm pretty sure I received something through the post regarding the incident (the logbook was up to date at the time), but it was so long ago I cannot recall the timescale or any specifics; foolishly (I admit) I think I just threw it straight in the bin, but I was unaware of the Beavis case at this point. I moved and updated my V5C in September, so I'm not sure if they should have sent the court papers through to my newer address, however I didn't receive any court papers through for the claim. I assume I would have to contact the court to obtain the address the claim form was sent to?

I just want to know what my best option is regarding this and the possibility of getting the claim set-aside to go for another hearing to get the CCJ off my record.

Ideally, I would rather just try and get it set-aside; my main concern is getting the CCJ removed, regardless of whether I win the follow-up case. I appreciate I'll probably be at a disadvantage here, as I don't think they've deliberately sent documents through to an old address, but with regards to this known practice within the courts, would I be best to say I cannot recall receiving anything through the post (including notice to keeper)? Also, if it goes to court, would I have a good chance of winning by saying I wasn't driving (and refuse to say who was)? I assume I'd have check that any notice to keeper was PoFA compliant; but how would I check this? Unfortunately it was only myself on the driving insurance at the time.

Given the time between the serving of court documents and the issue of the ticket, should BW Legal have made the effort to track me at the newer address?

Any advice on the best way forward would be greatly appreciated, as I genuinely knew nothing about the court claim, and want to be able to go back to the drawing board to try and fight it as I'm aware that BW Legal are a company known for "shady" tactics.

Thanks

Redx

see post #2 of the NEWBIES FAQ sticky thread and especially the "set aside" posts and links etc


nobody can tell you what a judge will decide, but it costs £255 and if the judge grants the set aside you will then have to fight the original court case

Coupon-mad

however have not been able to proceed further until this stage as I was struggling to save enough money to pursue this.

Did you check if you are eligible for help with fees?

https://www.gov.uk/get-help-with-court-fees

Given the time between the serving of court documents and the issue of the ticket, should BW Legal have made the effort to track me at the newer address?

Yes of course, in fact the parking firm should. But they don't care about that.

Just read the latest Set aside thread on this forum from today - I am not linking it, to use the forum best and to get confident with how the threads are dated/set out here, go find it!

It has all you need to go with the N244. Go and read it. Use the search function or just read all posts from today (I do).

Quentin

You say you "recently" discovered this, then that you spoke to the court about it on June 6th?


To win a set aside one criterion is that you apply promptly after learning about it


Promptly means around 2 weeke (you only get 14 days to respond to a claim in the first place)


You look to have known more than 2 months


A set aside by consent may be your avenue to getting this off your record - if Excel will agree.


Costs £100 to apply but you would need to pay it off in full too

saver13

Thanks, considering the time passed I will go for the set aside by consent option.

Would it be best if I contact BW Legal directly and get them to prepare the consent order if they agree (based on the agreement I pay them)?

Would accepting liability for the incident reduce my chances of getting it set-aside? I have read judges would see through this as an attempt at cleansing my credit score. Would I be able to include on the consent order that I do not accept liability?

Coupon-mad

considering the time passed I will go for the set aside by consent option.

NONONO. And more no.

You haven't exactly been the speediest, but a mere few weeks during a busy holiday period is quick enough IMHO, to do a £255 set aside and explain everything in the WS and draft order with your N244.

As per the other set aside thread I told you to look for today. You only need to search this forum for: set aside draft order (or read all posts from today to find it).

saver13

Ok great, in this case I will happily go for the set aside and defend the claim.

Please would you have a look at the witness statement I intend to submit?

********************************

"IN THE XXXXXXXXXXXXXX COUNTY COURT

Claim No. XXXXXXXXX

BETWEEN:

XXXXXXXXXXX Claimant


-- and --


XXXXXXXXXXX Defendant


_____________________________________


WITNESS STATEMENT

______________________________________




I am XXXXXXXXXX and I am the Defendant in this matter.
This my supporting Statement in support of my application dated XXXXXXX to:
· Set aside the Default Judgement dated XXXXX as it was not properly served at my current address;
· Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
· Order for the original claim to be dismissed.
· Any enforcement proceedings regarding the default CCJ are put on hold pending the outcome of the application for the judgement to be set aside.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in XXXXXX. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXXXX when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (XXXXXXX). However, I moved to a new address in XXXXXXXX. In support of this I can provide confirmation from XXXXXXX County Council showing my updated details for the purposes of paying Council tax.

1.2. I have also never received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.

1.3. On the XXXXXX I contacted XXXXXX County Court to find out details of the Default Judgement. The court papers contain no specific details of the alleged incident and I do not know what the Default Judgement relates to.

1.4. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s 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.

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

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



2. Order dismissing the Claim

2.1. I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. 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. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, 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. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

2.4. A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

2.5. I further submit that the Claimant’s claim is without merit as the claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.

2.6. 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.

2.7. In order to make informed decisions and statements in my defence as keeper of the a vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.
Full name: xxxxxxxxxxxxxx

Dated: XXXXXXXXXX

Signed: ________________________________

******************************************************************





I'm sure you can see I have amended this from one of the other mentioned threads, however I believe I would be able to use all of it in my case. In terms of the PoFA mentioned in s2.3, I'm not 100% sure Excel's parking tickets mentioned PoFA on them, and as I previously mentioned I cannot remember if a notice to keeper was served at my current address, so I assume the onus would be on them to supply evidence they have served those documents?

Is there anything else you recommend I should add?

Coupon-mad

That's not got the six point draft Order as per the other threads.

KeithP

This is the post you should've found:

forums.moneysavingexpert.com/showthread.php?p=74659291#post74659291

It's the first post returned when you put set aside draft order in the forum search facility - as suggested.

saver13

I have now updated this with the six point draft order you refer to:
******************************************

DRAFT ORDER

IN THE COUNTY COURT AT: XXXXXXXXXXX

XXXXXXXXXXX (Claimant)

And

XXXXXXXXXXX (Defendant)

CLAIM No: XXXXXXXXXXX

IT IS ORDERED that:

1. The default judgment dated XX/XX/2018 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.

WITNESS STATEMENT

7. I am XXXX and I am the defendant in this matter. This is my supporting statement to my application dated XX August 2018 requesting to:

a. Set aside the default judgment dated XX November 2017 as it was defectively served using an old address.

b. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

c. Order for the original claim to be dismissed.

DEFAULT JUDGMENT

8. I understand that the Claimant obtained a Default Judgement against me as the Defendant in XXXXXXXXXXX. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXXXXXXXXX when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (XXXXXXXXXXX). However, I moved to a new address in XXXXXXXXXXX. In support of this I can provide confirmation from XXXXXXXXXXX County Council showing my updated details for the purposes of paying Council tax.

9. I have also never received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.

10. On the XXXXXXXXXXX I contacted XXXXXXXXXXX County Court to find out details of the Default Judgement. The court papers contain no specific details of the alleged incident and I do not know what the Default Judgement relates to.

11. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. The PCN was served on XX/XX/16 and the court papers were issued on XX/XX/17. Civil Procedure Rules (CPR) 6.9(3) state:

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) [i.e. referring to the Defendant's usual or last known address] is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant's current residence or place of business (‘current address’).

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant;
(a) ascertains the defendant's current address, the claim form must be served at that address; or
(b) is unable to ascertain the defendant's current address, the claimant must consider whether there is
(i) an alternative place where; or
(ii) an alternative method by which, service may be effected.

Considering there was over a year between the issue of the PCN and the court papers, it is argued that the claimant had reason to believe this may not be the current address of the defendant. 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.

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

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

ORDER DISMISSING THE CLAIM

14. I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. 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.

15. 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.

16. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, 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. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

17. A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

18. 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.

19. In order to make informed decisions and statements in my defence as keeper of the a vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.
Full name: XXXXXXXXXXX

Dated: XXXXXXXXXXX

Signed: ________________________________

EVIDENCE LIST

Annex A; Council tax bill from new address.
Annex B; Email from XXXXXXXXXXX County Court.



******************************************
I have made reference to CPR rules in here regarding the time between serving of court papers and the PCN. Is this a good idea?

Coupon-mad

Looks good to go!