CCJ Old Parking Fine

MFTaylor3

Yep been reading them all tonight some really good information available and advise.

MFTaylor3

So I have managed to fill out the form and from reading through the post I have found a lot of good witness statements and would consider the below appropriate for my case. Any help or pointers would be greatly appreciated:

DRAFT ORDER:

• Order that the Judgement dated ....... of .....County Court case number.... is set aside on the basis that the Judgement was not properly served at the Defendant’s 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 on the basis that the Defendant has a reasonable defence; or to be re-heard at a new hearing.

WITNESS STATEMENT:

I am .... and am the defendant in the matter.

This is my Statement in support of my application dated 24/09/18 to:

• Order that the Judgement dated ....of ....County Court case number ....is set aside on the basis that the Judgement was not properly served at the Defendant’s 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 on the basis that the Defendant has a reasonable defence; or to be re-heard at a new hearing.


1. Default Judgement

1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on ....However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until a check on my credit file uncovered it on ..... I understand that this Judgement was served at an OLD ADDRESS (....).

1.2. At the time of the County Court Judgement, I was on the electoral roll at a new address, and was registered at a new address for my driving license and with the HMRC. As Civil Enforcement Ltd had received no correspondence from me at any point, I believe they had reasonable cause to question whether they were using an accurate address over two years after the incident occurred and that simple searches could have provided them with the correct address.

1.3. 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 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.” He added:

"It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. 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."

1.4. 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.

1.5. Considering the above I was unable to fully defend this claim. 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 On discovering this CCJ, I promptly contacted the County Court Business Centre on the xxxxx to find out details of the Default Judgement. The court papers contain no details of the alleged incident, nor the vehicle this related to. I contacted CEL on the telephone number provided on the Judgement to request information about the claim. I was told that I would receive no information or documentation before a date for a hearing had been set. This constitutes a deliberate attempt to thwart any efforts to defend the claim, in total contradiction to the guidance outlined in the Pre-Action Protocol for Debt Claims (2017) to “support the efficient management of proceedings that cannot be avoided”.

2.2. I understand Civil Enforcement Ltd to be a Private Parking Company that uses ANPR in order to issue “Parking Charge Notices”. 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. This includes the requirement to issue the Notice to Keeper within 14 days of the alleged incident. If the Claimant has not complied with the requirements of the Act they cannot claim this charge against me as the Registered Keeper in any case.

2.3. If the Notice to Keeper was not issued within 14 days, then the Claimant is required to prove who the driver of the vehicle was at the time of the alleged incident. I have no recollection of the driver of the vehicle at the time of this incident. The vehicle to which I am the Registered Keeper was at the time insured to be driven by three adults and was on occasion driven by another adult with ‘DOC’ on their own comprehensive insurance. I submit that the Claimant cannot provide such evidence of the identity of the driver.

2.4. I 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.

2.5. 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.

2.6. I submit that this is not a penalty charge notice but a private one based on contract law and therefore the Claimant must:

a) show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant
b) set out the facts on which it is asserted that the claimant has a cause of action against this defendant, and
c) identify the 'relevant obligation' of the defendant to pay parking charges and the 'relevant land' on which the parking is said to have occurred
d) state whether the claim is in relation to a 'relevant contract' or in respect of an alleged trespass or other tort (as per the POFA 2012 Schedule 4)
e) disclose full particulars and a contract, in order to evidence a claim in law
f) evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a brazen attempt at triple 'recovery' reaching over £350 despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed).

2.7. On this basis I believe that the Claimant has not provided any reasonable cause of action and absent the above being produced in short order, the Defendant asks the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs for attending, namely the £255 Court fee in bringing this set aside case, despite not being shown to be liable for any parking charge at all.

2.8. If required to defend at a further hearing, the Defendant will require all copies of paperwork, letters and other documentation including pictures of all signage from the Claimant in order to make informed decisions and statements in a comprehensive defence as keeper of a vehicle.

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

Signed
Date

KeithP

Your Draft Order should really include something asking for enforcement acction to be put on hold.

This six point draft order may help:

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

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the House of Commons recently

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41 recently.

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

MFTaylor3

Thanks for the reply Keith will have a read through

MFTaylor3

Could anyone help me with line number 3 on the below please. Unsure of this paragraph and thinking of just pulling it out because I don’t really understand it


DRAFT ORDER

IN THE COUNTY COURT AT: xxxxxx

CIVIL ENFORCEMENT LIMITED (Claimant)

And

MR ********************* (Defendant)

CLAIM No:**********

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 judgment against me on XX November 2017. However, it was not served at my current address, therefore I was not aware of the county court judgment until 23/09/19 when I checked my credit report with Experian and noticed a dramatic decrease in my credit score. On further investigation I found that I had a ccj on my file from Civil Enforcement LTD

9. I have never received any correspondence from the claimant, therefore I was never able to challenge the original charge nor the judgment.



10. I have never received any correspondence and at no point prior to XX June 2018 did I have any contact with the claimant.

11. I believe the claimant has behaved unreasonably by not ensuring they used my correct contact details. According to publicly available information my circumstances are far from being unique. Civil Enforcement LTD’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system.

12. I suggest the claimant did not make reasonable enquiries as to my current address before perusing the court order especially considering they had good reason to believe they did not hold my current contact details. Furthermore, considering they received no response from me to their correspondence this should have been a clear indication of the obsolescence of the address XXXX.
13. The claimant was able to obtain my correct and current address after (date of judgement) to make me aware of the money owed but only after such time that a CCJ had been passed. This clearly demonstrates that they were aware that they did not have the correct address at the time of perusing the court order.

14. Considering the above I was unable to defend this claim. Therefore, I believe that the default judgment against me was irregular and I respectfully request it is set aside.

ORDER DISMISSING THE CLAIM

15. I further believe that the original parking charge notice has no merit and should thus be dismissed. 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 driver.

16. The claimant has obtained details of the vehicle for which the defendant was the registered keeper and used those details to raise a parking charge notice. I dispute this charge 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 have come into force.

17. If the claimant can evidence that the alleged incident relates to the vehicle XXXX XXX any notice to keeper issued 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 registered keeper of the vehicle automatically liable.

18. A requirement of the Protection of Freedoms Act 2012 is that any notice to keeper must be served within 14 days of the date of the alleged incident. Since I have not received any documentation I submit the claimant has not complied with the requirements of the Act and thus cannot claim this charge against me as the registered keeper in any case.

19. I further submit that the parking charge notice is without merit due to substantial issues in law. This is for the following reasons:

a. Lack of Standing by Claimant: The claimant is not 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 claim for any damages or trespass.

b. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so they must demonstrate their actual or genuine pre-estimate of loss. I submit that no loss has been suffered by the claimant as a result of any alleged breaches of contract on the part of any driver of the vehicle of which I was the registered keeper. I further submit that any loss to the landowner (which would be the only party able to claim such losses) would be minimal.

c. The Charge is an Unenforceable Penalty: I further submit that the parking charge is nothing but an unenforceable penalty as it is not based on any loss suffered due to the alleged infraction.

d. 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 driver. Therefore, there is no consideration from the driver to Civil Enforcement Ltd.

20. 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.

21. In order to make informed decisions and statements in my defence as former keeper of the 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.

Coupon-mad

Could anyone help me with line number 3 on the below please. Unsure of this paragraph and thinking of just pulling it out because I don’t really understand it

Nonono!

The point of 'drafting an Order' is you are prompting the Judge with what you hope he/she will order, and it's written in a Judge's style and that point #3 is VITAL.

Can you not re-read it slowly and see what it's saying? It's the vital point that gets you your £255 back, if the Claimant runs away with their fingers in their ears!

MFTaylor3

Hi CM thank you for the reply. The thing about line 3 I am struggling with are what dates to put in... like how long do I give them?

Coupon-mad

Ah...it's a DRAFT order for the Judge to do...so you leave the date blank!

MFTaylor3

Thank you very much for your help all submitted today so hopefully get a date soon!