Please help! ***I WON***

chunkrock

KeithP wrote: »

This post will help:

forums.moneysavingexpert.com/showpost.php?p=74659291&postcount=12

Ok brill thank you.

Does this go in as a separate sheet to the WS?

chunkrock

Because surely I cannot fill in the dates in the draft order until I have a hearing arranged?

KeithP

chunkrock wrote: »

Because surely I cannot fill in the dates in the draft order...?

That's right. use xx/xx/20xx.

You are suggesting to the Judge what he might like to consider Ordering. It's a draft.

KeithP

chunkrock wrote: »

Does this go in as a separate sheet to the WS?

Re-read that post.

It includes the Draft Order, Witness Statement etc.

chunkrock

KeithP wrote: »

Re-read that post.

It includes the Draft Order, Witness Statement etc.

Thank you, I'm really sorry I'm just not dreadfully smart so this is REALLY confusing to me haha

Coupon-mad

I would put it on a separate sheet, personally, as the WS needs your signature & date, and the Draft Order does not.

You are just showing the Judge what he/she might put in an order.

chunkrock

ok I think I am ready...

DRAFT ORDER

IN THE COUNTY COURT AT: xxxxxx

CIVIL ENFORCEMENT LIMITED (Claimant)

And

MR XXXX (Defendant)

CLAIM No: XXXX

IT IS ORDERED that:

1. The default judgment dated XXXX/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
1. I am XXXX and I am the Defendant in this matter. This my supporting Statement in support of my application dated 14 September 2018 to:

a. Set aside the Default Judgement dated XXXXX 2017 as it was not properly served at my current 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 JUDGEMENT

2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 22nd June 2018. I am now aware, upon finding out about the unknown CCJ and from contacting the CCBC, that the Claimant is Civil Enforcement Limited and that the claim is in respect of unexplained conduct, by an unidentified driver of the vehicle, that the Claimant believes led to an alleged Parking Charge Notice from the 14 September 2017 at 'FARNWORTH RETAIL'. I know nothing about this incident; I have seen no photographs, and no driver of my car has reported receiving a PCN at any point, so this is not a charge that I or a driver has ignored, nor have I had any chance to dispute it. If I had known about this matter, I would have asked for evidence, and I am also aware that this Claimant cannot find a registered keeper liable, as they do not use the POFA/Schedule 4 'right to keeper liability' so there would have been grounds to dispute it, had I known.

3. The claim form was not served at my current address and I thus was not aware of the Default Judgement until 13 September 2018 when I undertook a routine credit check. I understand that this Claim was served at XXXXXX. However, I moved to a new address atXXXXXXon the XX February 2017. In support of this I can provide a copy of a solicitor’s completion statement showing the date of completion and confirmation from Salford Council showing my updated details for the purposes of paying Council tax. I admit that, being new to car ownership and DVLA rules, I was unaware that changing my driving licence address details with the DVLA was not enough and I also had to change my details on the V5C logbook, something I have now rectified. There was no attempt to hide from this Claimant, and I was there to be found at my current address, with a basic trace.

4. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim. They have used information that was at the time eight months out of date. At no time between issuing the Parking Charge Notice did the Claimant ever receive any response to any communications served at my previous address. This surely should have casted doubt on the address they were using.

5. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. This is a topical issue: I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” The Minister added 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.”

6. 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.

7. 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.
ORDER FOR DISMISSAL
8. 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.

9. 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.

10. 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 must comply with 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.

11. 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.

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

13. 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.

14. 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.

15. 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.

16. 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.

Coupon-mad

cast doubt, not 'casted'.

I'd remove this as it talks about a 'fee' (a retail park is likely not to have a tariff):

14. 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.

And these dates do not show the same year!

a. Set aside the Default Judgement dated XXXXX 2017 as it was not properly served at my current 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 JUDGEMENT

2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 22nd June 2018.

You need a statement of truth, signature and date at the bottom of the WS.

chunkrock

Coupon-mad wrote: »

cast doubt, not 'casted'.

I'd remove this as it talks about a 'fee' (a retail park is likely not to have a tariff):


And these dates do not show the same year!


You need a statement of truth, signature and date at the bottom of the WS.

It'll be posted off on Monday; I shall report back in due course. Thank you again for all your help... wish me luck!

[Deleted User]

Nowhere in that witness statement does it refer to the court rules for service:
http://www.civillitigationbrief.com/2014/05/18/service-of-the-claim-form-service-at-last-known-address-more-dangerbepoints-to-watch/
(This link refers to both the rule, but also helpful case law)

or for setting aside a default judgment:
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

Do that.

Note the test that applies and which you need to meet. Nothing wrong with the points made, but help the judge to show why he should set aside. Otherwise you leave yourself open to the argument that you're just the author of your own misfortune.

Do your research. As my signature points out, the best comes to those who read up on stuff....