CCJ Set Aside Help - Residential Parking

Coupon-mad

Not really an issue, surely there must have been another way you learnt about the allocated bay?

Email telling you your bay is xx?

Advert about the flat?

AdoptedNortherner

Coupon-mad wrote: »

Not really an issue, surely there must have been another way you learnt about the allocated bay?

Email telling you your bay is xx?

Advert about the flat?

You over-estimate the standard of our then letting agent.

No email confirming it.

I do have a scan of our keys with, in handwriting, the number of our allocated bay written on the scan.

I do have the original advert for the property.

I will also attempt to get confirmation of the allocated space and parking from our previous letting agent.

Would that be enough?

Also, is anyone able to relay or point me towards somewhere identifying standards that have to be met when bringing forward photo evidence for the original charge? We've noticed that aside from the photo's of the vehicle, the photo's they've used to exemplify the signs posted in the car park aren't actually in the area of the car park our vehicle was.

nosferatu1001

Yes, that would be enough for me to show you have the clear expectaiton of a space, no thing saying otherwise, and nothing saying the space is conditional on having and displaying a permit.

There are no standards
You just chalenge them to produce photos of the area the vehicle was parked, not the ones they have produced already, and can do that on the day - even better if you can state theyre different and you have your own photos showing it, because then they have mislead the court....

AdoptedNortherner

Hi all,

So we've been finalising our set-aside application to hopefully send off in the next day or so.

Can I please ask anyone to examine it and provide any feedback on points worth clearing up, re-wording, highlighting etc? All your help as always is much appreciated.

_____________________________________________


I am XXX XXXX and I am the Defendant in this matter. This my Statement in support of my application dated XX October 2018 to:

1. Set aside the Default Judgement dated XX August 2018 as it was not properly served at my current address and order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;

2. Order for the original claim to be dismissed

For the benefit of clarity, I'd like to supply a summary of events leading to the below application.

Summary of events

The UK Parking Patrol Office issued two Parking Charge Notices to our vehicle on 31/01/2017 (PCN XXXXX); Schedule (A) and 01/02/2017 (PCN XXXXX). The parking permit was on display but had slipped, resulting in only partial visibility of the permit.

Once the PCN’s were discovered, we immediately appealed the charges online, directly with UKPP

On 09/02/2017 I received two emails from UKPP:

The first email received was regarding PCN XXXXXX (issued 01/02/2017) from UKPP advised that, quote; “Careful consideration has been given to the points you have made in your representation and the information provided. I am pleased to inform you that your appeal has been successful and the charge has now been cancelled” (Schedule .
The second correspondence was received regarding PCN XXXXX (issued 31/01/2017). UKPP advised they were rejecting the appeal (Schedule C) which was argued as unacceptable as both PCN’s were for the same case and cause.

On 10/02/2017 I started the appeals process online with the Independent Appeals Service (IAS). I received regular emails from the IAS on XX/XX/2017, XX/XX/2017 and XX/XX/2017 (Schedule D) detailing progress of my application.

By 16/02/2017 both myself and UKPP had submitted our statements and evidence and the IAS confirmed the appeal was ready to be assessed

On 28/02/2017 I received an email stating that the appeal was dismissed by an adjudicator on the grounds that the permit was displayed in such a way that it was not capable of being read from outside the vehicle (Schedule E). The cancelled charge for PCN XXXXX was not referred to. The dismissal was sent from a ‘noreply’ email address and it was advised that the IAS would be unable to intervene further on this matter.

On 03/03/2017 I received a letter from UKPP advising my appeal had been unsuccessful with details of how to pay the charge of £100 (Schedule F).

On 06/03/2017 I sent a letter in response to UKPP disputing the IAS verdict, detailing my reasons for not agreeing with the charges still being valid for PCN XXXXX (Schedule G). No response was received to this letter and no further correspondence was received via post, email or telephone from the Claimant with regards to the charge for PCN XXXXX.

On 25th April 2017 we were given notice that our landlord was reclaiming the property in order to sell it (Schedule H); therefore we had to begin preparing to vacate the property

On 02/06/2017 we moved into our new and still current address XXXXXX; (Schedule I)

We quickly notified the DVLA of our change of address (Schedule J)

On 30/09/2018 I received an email from an automated service advising that my experian credit score had changed (Schedule K). I immediately logged in to my Experian Credit account to access my Credit Report which stated under ‘Court Data’ that I have either one or more recent or uncleared County Court Judgements (CCJs).

Immediately after viewing my Credit Report, we completed a search through Registry Trust Limited on 30/09/2018 who issued a search result detailing the County Court Business Centre CCJ that was dated 15/08/2018 under XXXXXXX (Schedule L). This was the first I had heard about the CCJ or any court related charges.

On 01/10/2018 I called the County Court Business Centre and spoke to XXX who confirmed the debt had been filed against me by UKPP. Upon request, XXX agreed to email information regarding the claim on the same day; (Schedule M).


1. Default Judgement

1.1. I was the registered keeper of the vehicle at the time of the alleged offence. The claim relates to an alleged debt arising from parking in my residential, allocated parking bay

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on XX August 2018. I am aware that the Claimant is UK Parking Patrol Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice from the XX January 2016 at my then residence XXXXX. I further contest this charge for the reasons outlined in Part 2 of this defence.

1.3. The claim form was not served at my current address and I thus was not aware of the Default Judgement until 30 September 2018 following notification of an automated credit report update; as found in Schedule (K)

I assume that this Claim was served at, XXXXXX. However, I moved to a new address at XXXX on the 2nd June 2017. In support of this I can provide a scanned copy of my tenancy agreement as signed upon the same date by myself and our letting agent alongside a council tax bill corresponding to the same date; Schedule (I)

1.4. Immediately upon moving to the new address I contacted the DVLA with notification of a change of address; Schedule (N)

1.5. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.5.1 I discovered a CCJ was lodged onto my credit file on the 30th September 2018

1.5.2 On 1st October I contacted the County Court Business Centre to obtain relevant information relating to this default judgement; the particulars of the claim only containing “outstanding debt and damages” as reason for the claim - this is inserted into Point X.X below and (Schedule M)

1.9.3 On XX October I have willfully submitted my case in order to set-aside this judgement and fairly present my case


1.6. 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 14 months out of date. In addition, following an initial appeal on previously disregarded parking charges; UKPP have both my email address and phone number which have not changed

1.6.1 In furtherance to the above, the majority of correspondence directly between the Claimant and myself took place over e-mail; hence it is unacceptable not to utilise the medium when notifying of intention to raise court proceedings when there is obvious doubt as to the residence of the Defendant

1.7. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of the my current residence despite having 14 months to establish an address between our vacation of residence (June 2017) and the default judgment (August 2018). This has led to a defective service and an irregular judgement. As the proceedings were not validly served, it leads to no service and thus they are not entitled to judgement and the court must set aside the claim

1.8. I do acknowledge UKPP’s limitations in obtaining details considering there is also an ongoing case between UK Parking Patrol Ltd and the DVLA whereby the former are now banned from accessing driver information due to their conduct in obtaining and misusing driver data; this being indicative of their overall conduct as an organisation.

1.9. 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.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses."

The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. 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.” Furtherance to points raised in 1.3 above.

1.10. Considering the above I was unable to defend this claim. I 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 dismissed

2.1 I am 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

2.2 Primacy of Contract; It is denied that I the Defendant or lawful users of the vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land along with written confirmation of the allocated parking bay; Schedule (O)

I assert that there was an absolute entitlement to park deriving from the terms of the tenancy, which cannot be fettered by any alleged parking terms. The lease provides the right to park a vehicle, without limitation as to ownership of vehicle, the user of the vehicle or the requirement to display a parking permit.

2.3 I as the Defendant aver that the operator’s signs cannot:

(a) override the existing rights enjoyed by residents and their visitors for peaceful enjoyment of their space and

(b) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease

The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) (Schedule P) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011 (Schedule Q). The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.


2.4. 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.

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

2.5.1. Lack of Standing by Claimant: The Claimant is not the landowner of the car park in question, and has 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.

2.5.2. 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 motorist of the vehicle of which I am the Registered Keeper. Evidence of this is held within the existing tenancy agreement to lease the property, within which included the allocated parking space the vehicle where the vehicle was parked.

2.5.3. 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; there are no fees for parking as residents as this is factored into tenancy; see 2.2 above.

Therefore there is no consideration from motorist to claimant.

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. Alternatively, if the Claimant disagrees with the above, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least all of the following information:

2.7.1. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge

2.7.2. A copy of any contract it is alleged was in place (e.g. copies of signage)

2.7.3. How any contract was concluded (if by performance, then copies of signage maps in place at the time)

2.7.4. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper

2.7.5. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

2.7.6. Information obtained from the County Court Business Centre does goes on to state (for which evidence will be provided upon a set-aside hearing):

“THE CLAIMANT CLAIMS INTEREST UNDER SECTION 69 OF THE COUNTY COURTS ACT 1984 AT THE RATE OF 8% A YEAR FROM 31/01/2017 TO 20/07/2018 ON £176.05 AND ALSO INTEREST AT THE SAME
RATE UP TO THE DATE OF JUDGMENT OR EARLIER PAYMENT AT A DAILY RATE OF £0.03.”

2.7.7 However, with only one charge that could be claimed as outstanding is that of the BPA Code of Practice limit of £100. Evidence must be supplied as to how an attempt to double the recovery has been made

2.7.8 Remembering POFA’s code also stipulates a keeper can only be pursued for the sum on the Notice to Keeper (double-recovery is not allowed)


2.8. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

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


2.10. 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

2.11. I further believe this Claim relating to ‘Parking Charge Notice’ issued on 31 January 2017 does not apply; as under Schedule 4 of Protection Of Freedom Act 2012 the Registered Keeper of the vehicle cannot be held liable where a breach of contract may have occurred by a driver of a vehicle; where the Defendant is the Registered Keeper and where said keeper is unable to identify the driver.

2.12. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 20 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

2.13. For the Claimant to have obliged the Defendant to provide the drivers details at the time of said breach the Claimant would be required to apply for a ‘Norwich Pharmacal Order’, I am not aware of any such order being made upon the Defendant.

2.14. Furthermore, given the time delay of approximately more than a year from the alleged breach of contract, it is unreasonable to expect the Defendant to have a record of who was driving the vehicle at the time of the offence.


2.15. On the basis of assumption, without the chance to fully review the court claim made by the Claimant; it is acknowledged and accepted I made an original appeal to charges applied to my vehicle of which there were two separate PCN’s.

2.16. Of the two PCN’s raised for equal amounts (both £100), one was dismissed. The other was upheld and I was forced to appeal through UKPP’s adjudicator partners, the alleged Independent Appeals Service.

Disregarding the obvious conflict of interests that preside over the directorship and affiliations of the IAS, which I do not deem an adequate impartial adjudicator; there are two resounding areas of inconsistency:

The original parking charge was issued on the premise of “No permit”. This was incorrect as the permit was present, it had simply slipped to a point of partial visibility. The adjudicator adjudged, and quote “In this case it is maintained that the Appellant’s permit was displayed in such a way that it was not capable of being read from outside the vehicle” (Schedule E)

It was accepted that the permit was displayed, just incorrectly. The permit used was valid, as was supplied at the point of the appeal (Schedule R).


With one charge removed for the same alleged breach of contract, there is no consistency in enforcement of their own supposed management. This indicates the intention to simply roboclaim and turn profit by offering a standalone charge to incentivise a swift payment


2.17. In conjunction with the outstanding claim being made against me; it is common knowledge amongst a number of other tenants / leaseholder at the resident property the claim is pertaining to, that there are several cases ongoing with the same organisation, UK Parking Patrol;

2.17.1 There are many cases wherein UK Parking Patrol have rescinded their charges on the basis a victim of their claims is a tenant and is lawfully able to park on their own land (leased or owned)

2.17.2 One such case is that of tenant XXX XXXX; PCN Ref: XXXXX,

XXXX was charged for failing to display their permit on their vehicle. Upon openly admitting to UKPP that he had simply “forgotten” to display it and subsequently sent through photographic evidence of their allocated permit, UKPP agreed to rescind the charge (Schedule X)

2.17.3 This is inconsistent on the basis upon which the claimant is attempting to charge myself as the defendant; and there other exact cases like this one which can be provided on any further hearing


2.18 On the basis of the above, I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

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

KeithP

You might want to consider a Draft Order.

Maybe something like this one:

forums.moneysavingexpert.com/showthread.php?p=74830861#post74830861

AdoptedNortherner

Hi all,

Planning to send this off on Thursday. Any more feedback or points to raise would be invaluable as always.

Can I ask if you feel our main reasons for dismissal are clear?

Thank you

AdoptedNortherner

Hi all,

Can anyone help quickly clarify - the initial default judgement was made by the County Court Business Centre, and that is the court listed on our Registry Trust

This is where the application should be sent off to?

We can't assume it be dealt with by our local county court until officially transferred?

AdoptedNortherner

Hi all - returning here as we've been granted a set aside hearing for the 3rd January.

We've carried out a series of SAR requests with UKPP, DRP and Gladstones - some of which have highlighted some of their incompetency at maintaing accurate records, but equally DRP who have claimed our data was obtained from DVLA but our request for data-access by DVLA came back to state that there had been no attempts to retrieve our information.

We're just sending in an additional document to the court ahead of our hearing with some of the new information gathered.

Just a quick point I'd like to ask:

1) The photos held on our UKPP records don't show any evidence of signage in the car park on the day; the only signage saved on our record is a stock image - can someone point me towards a valid case/argument against this to include in our additional letter?

Struggling to find previous notes we've come across on the forum. Thanks!

AdoptedNortherner

Hi all,

I'm pleased to advise that we won at the hearing a couple of weeks ago and the claim was successfully set aside! Thank you to everyone's help to get us this far.

We have now received the particulars of claim from UKPP within their 14 day time limit in the form of a Witness Statement, so we are now within our 14 day time period to submit our amended defence. Should this be structured as a Defence Statement or a Witness Statement?

We are planning to finalise this over the next couple of days so any help would be much appreciated.

Thank you

The_Deep

We have now received the particulars of claim ...

They must be mad! Consider a counter claim for Tortuous Interference and complain to your MP.

https://en.wikipedia.org/wiki/Tortious_interference

The whole industry is a scam, relying on threats of court, and the public's ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Second Reading in the Lords this month, and, with a fair wind, will l become Law later this year..

All five readings are available to watch on the internet, (some 7-8 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.