CEL CCJ - Request for help with applying to have CCJ set aside

Catan

KeithP wrote: »

An important point, probably already mentioned, is that having discovered the County Court Judgment, you act quickly towards getting it set aside.

Thanks - that was one of my original Qs and I'm nervous about this one, I didn't realise just how important it was to get an application in quickly, so I know I'm up against it here. See OP for reasons why it's taken until now (around 30 days).

Catan

Hi all,

So, an update: I have a date set for the Set Aside hearing - this coming Thursday 24th Jan - but wanted to get a bit clearer on what to prepare, and maybe run my WS, DO and Draft Defence by people as well if anyone was able to take a look?

To summarise where I'm up to so far, I sent my application for the set aside in on Jan 2nd, along with an attached Witness Statement, Draft Order and Draft Defence, in the style of other examples people have posted elsewhere on the forums - I originally attached all the evidence I referenced in the WS too, but it actually took it over the 50 page limit for the application (didn't realise there was one...) and the court informed me on the phone that I didn't actually need to attach any of that stuff until the hearing itself.

So a couple of questions really:
- What exactly do I need to prepare for the Set Aside hearing? Am I right in thinking it's those three things: Witness Statement+evidence; Draft Order; and a draft defence to show what I'd argue at a further hearing if I successfully got the set aside? Do I need to send them copies in advance or anything like that?
- If I were to post them here (with details removed ofc) would anyone be able to give them a once over to check I've prepared everything I needed?

Also a separate point - I took it to be the case that I needed to attach all of the above to send in with my application for the set aside, but it seems like that wasn't necessary? Could I have just sent a basic application for the set aside and saved myself the trouble of scrambling together all that info/legal statements ASAP to get my application in promptly?!

Thanks in advance!

Coupon-mad

You didn't have to attach anything to the N244 except a WS and draft order, & the fee.

Here is a case showing what you need to say, to satisfy the Judge at the set aside hearing - this is all you need to know:

https://forums.moneysavingexpert.com/discussion/comment/74864199#Comment_74864199

And PLEASE press the Judge, once he/she has agreed to set it aside, to please order that the costs of £255* and your attendance costs are not only held as 'reserved' pending the main hearing of the case, but also ordered to be paid by the Claimant in the event that they do not proceed within the time ordered or discontinue after the set aside.

*Unless you qualified for fee refund on income grounds and didn't have to pay the £255.

Catan

Thanks Coupon-mad, will definitely press the judge on that and have been reading that exact thread closely while researching, but it's left me with have a couple of questions..

If you're able to answer - am I right in thinking a Witness Statement and a Skeleton Argument are interchangeable terms for the same thing? The WS I attached was lengthy and similarly structured to the Skeleton Argument sppc42 refers to in that thread, with evidence etc.? Basically, my understanding is:

Witness Statement / Skeleton Argument = Your argument that you acted promptly, haven't been trying to avoid paying, haven't had any contact regarding the charge, and that the claimant hasn't fulfilled their obligations to contact you, with evidence. Submit with N244 and bring with to set aside hearing.

Draft Order = Briefer document with several paras as a draft for the judge's order to set aside the CCJ, strike out the claim, reserve the costs etc. Submit with N244 and bring with to set aside hearing.

Draft Defence = Relatively detailed outline of the defence you would use at the further hearing after the set aside hearing, if you were successful there. This is where I mention the POFA/Registered Keeper argument, etc. Again, submit with N244 and bring with to set aside hearing (seems like I didn't need to submit with the N244?)

sppc42 seems to bundle these three together in that thread (few posts higher up on that page than the one you linked to) but others have separated them in to distinct documents, hence my slight confusion on what to call what, and what to bring where!

Other quick question: 'reserving costs' - am I right in taking this to mean that those costs (the £255 plus other expenses like travel etc.) are to be decided on at the hearing? Does it guarantee them as a minimum, or just mean that no decision at all is taken until that hearing? All the definitions of 'reserving costs' I can find online don't make sense to a layperson (e.g. "The decision about costs is deferred to a later occasion, but if no later order is made the costs will be costs in the case.")

Will submit my WS, draft order etc. here shortly, tomorrow morning latest hopefully (just want to tidy them up from original versions I sent and redact names etc.).

Thanks so much for the help!

Coupon-mad

Yes to the above except:

A skeleton argument is a legal/case law argument, not a WS. You do not need a skelly.

You did not need to send any defence with your N244, or any evidence, but do take it to the hearing. You will nee a defence sooner or later and the Judge might ask for an overview (NOT detailed).

Reserving costs does just mean that no decision at all is taken until that hearing, except that those costs remain 'in play' and potentially, you could then claim them if you win, or if the C discontinues.

If you do not press to have your costs reserved they drop off the cliff, are in the past, and are no longer in play.

MUCH harder to then try to claim them, if you attend a case hearing later with a different Judge who knows nothing of what was said at the set aside hearing. Hence the draft order, and asking, and asking until you are blue in the face(!) for confirmation in an Order after the Set aside, that your wasted costs remain in play and become payable should the C discontinue.

Especially as they are unlikely to bother to turn up to the set aside hearing. Why should you take the hit and have your wasted costs forgotten?

Catan

OK that's really helped clear it up, cheers!

Here's copy of exactly what I submitted with my N244 below. Any advice on how to improve is obviously enormously appreciated but please by no means feel obliged!

They're separated into three documents - a Witness Statement, Draft Order, and Draft Defence. This is exactly how I've formatted them barring all the redacted info!

---

[WITNESS STATEMENT BEGINS]

In the [REDACTED] County Court

Case Number: [REDACTED]

Claimant: Civil Enforcement Ltd.
Defendant: [REDACTED]

WITNESS STATEMENT

1. I, [REDACTED name] of [REDACTED address] am the Defendant in this matter. This is my statement to support my application dated 2nd January 2018 to:

1.1 Set aside the Default Judgement [REDACTED Case no.], dated 29th August 2018, on the basis that it was not properly served at the Defendant’s current address, and the Defendant has a reasonable defence to the claim that they were not able to present.
1.2 Order the Claimant to pay the defendant £255, in addition to any further costs incurred, as reimbursement for the costs, or for the costs to be reserved.
1.3 Order the original claim to be dismissed on the basis that the Defendant has a reasonable defence; or for it to be re-heard at a new hearing.

2. I understand the claimant has obtained a Default Judgement against me as the Defendant on 29th August 2018. It is the Defendant’s understanding that this claim was served at my previous address ( [REDACTED old address]). At no time has this been served at the Defendant’s current address [REDACTED current address]). Furthermore, at no time has the Defendant received contact of any form from the Claimant regarding the claim.

3. The Defendant has at no time avoided or attempted to avoid any known debt, and their contact information, such as address of residence, has been available by a simple and permissible trace at all times. The Defendant has never received any documentation from the Claimant in this matter and acted promptly to ascertain the details of the default CCJ as soon as they became aware of it, as per the following detailed timeline of events:

3.1 Monday, 8th August 2016 - Defendant moves from previous address ( [REDACTED prev. address]) to current address ( [REDACTED current address]). See Copy of Confirmation of application to update Electoral Register, attached as evidence E.1, and Copy of Council Tax notice, attached as evidence E.2.

3.2 Tuesday, 18th September 2018 - Defendant updates their address on V5C to current address. See Copy of V888 Response Letter, attached as evidence E.3.

3.3 Friday, 30th November 2018 - Defendant applies for credit via Apple Upgrade Program, and is rejected. See Barclays Loan Application Update Email, attached as evidence E.4.

3.4 Friday, 30th November 2018 - Defendant contacts the Electoral Services by email to verify they are on the Electoral Register, after learning that being unregistered can negatively impact credit score. See Electoral Register Check Email, attached as evidence E.5.

3.5 Friday, 30th November 2018 - Defendant signs up for Experian credit check in order to view their credit score, and understand why the above credit application was rejected. Defendant first discovers their low credit rating. See Welcome to Experian Email, attached as evidence E.6.

3.6 Saturday, 1st December 2018 - Defendant signs up for premium service CreditExpert with Experian, in order to see the specific reasons for their low credit rating, and discovers apparent CCJ in Defendant’s name. See Welcome to CreditExpert Email, attached as evidence E.7.

3.7 Saturday, 1st December 2018 - Defendant submits three premium searches of the Registry Trust for any court orders in their name at their previous three addresses, using company TrustOnline, totalling £24. Defendant first learns of CCJ Case Number, Court Name and Date of Judgement, listed under Defendant’s previous address ( [REDACTED prev. address]) and the Claimant Name, but no further details regarding the Judgement itself, the Claimant, or the alleged incident. See two TrustOnline reciepts for the three searches, attached as evidence E.8 and E.9. See TrustOnline Report [REDACTED] attached as evidence E.10.

3.8 Saturday, 1st December 2018 - Defendant calls the [REDACTED county court] and finds that the court is closed. Defendant then contacts the DVLA via telephone in an attempt to ascertain any information about any alleged driving infractions that may have led to the CCJ. Whilst speaking to both the Driver ( [REDACTED phone no.]) and Vehicle ( [REDACTED phone no.]) departments at the DVLA, Defendant is assured that there are no infractions in their name or for the vehicle in question on DVLA records. See Defendant phone call records from [REDACTED carrier], attached as evidence E.11.

3.9 Monday, 3rd December 2018 - Defendant calls the [REDACTED County Court] as soon as they open, and receives minimal information about the case. See Defendant phone call records from [REDACTED carrier], attached as evidence E.11.

3.10 Monday, 3rd December 2018 - Defendant calls the Claimant, Civil Enforcement Ltd., from the number provided by the Court. Defendant receives minimal information about the case again, however the information does include: PCN Number ( [REDACTED]); a vague location of the alleged incident ( [REDACTED]), the date of the alleged incident, 19th November 2017, and the alleged time the driver spent in an Authorised Vehicles Only location, 51 minutes. During the above phone call, the Defendant notified the Claimant that they had received no contact or information regarding the alleged PCN at any time, that the Defendant had changed address long before the alleged incident and subsequent Claim and Judgement, and provided the Claimant with their current, accurate address ( [REDACTED]). The Claimant informed the Defendant that they had ‘no option’ other than to pay the fee, which the Defendant now knows to be demonstrably false. See Screenshot of Defendant phone call history from Defendant’s phone, attached as evidence E.12.

3.11 Monday 3rd December 2018 - Defendant calls the DVLA again, in order to ascertain which address the vehicle in question was registered to, and when. At this time the Defendant is of the belief that the vehicle was actually registered to a third address ( [REDACTED third address]) at the time of the Claim and Judgement. Defendant is informed by the DVLA that they must submit a V888 form in order to access information about previous addresses, which takes up to 14 days. See Defendant phone call records from Three, attached as evidence E.11.

3.12 Monday 3rd December 2018 - Defendant sends V888 Request by an individual for information about a vehicle form to the DVLA. See Defendant email to printer with attached V888 Form, attached as evidence E.13

3.13 Between 8th and 17th December 2018 - Defendant receives response from V888 Request noting that the vehicle was registered at the Defendant’s former address ( [REDACTED]) until 18th September 2018, where it was updated to the Defendant’s current address ( [REDACTED]). See V888 Response Letter, attached as evidence E.3.

3.14 Defendant seeks further legal advice and conducts further research into the process of applying for a CCJ to be Set Aside over the Christmas period. Defendant continues to do so after the Christmas period, including phone calls to the Citizens Advice Bureau ( [REDACTED]), Popla, ( [REDACTED]), and the Claimant ( [REDACTED]), however received no response during Christmas period closures. See Screenshot of Defendant phone call history in Late December from Defendant’s phone, attached as evidence E.14.

3.15 Monday, 31st December 2018 - Defendant submits a Subject Access Request (SAR) under GDPR in order to ascertain the required details of the original PCN, and receives no response at the time of writing. See SAR Email from Defendant to Claimant, attached as evidence E.15.

3.16 Tuesday, 1st January 2019 - Defendant contacts the [REDACTED County Court] to notify the Court of their intention to apply for the default Judgement to be set aside as soon as possible, and to request that any further attempts to reclaim the amount allegedly owed be postponed for the immediate future. See Note of intention to apply for a judgement to be set aside Email from Defendant to [REDACTED County Court], attached as evidence E.16.

3.17 Wednesday, 2nd January 2019 - Defendant submits application for Judgement to be Set Aside via form N244 on first working business day after the Christmas and New Year bank holiday closures. Defendant is informed by the court that the application exceeds the 50-page limit, and that it is not necessary to attach evidence at this stage. Defendant re-submits the application as soon as possible the following morning without the attached evidence.

4. The Claimant has not adhered to CPR 6.9(3), where the Claimant has reason to believe that the address of the Defendant is an address at which the Defendant no longer resides or carries on business. The Claimant had reason to believe that the address of the Defendant is not an address at which the Defendant resides or carries on business, and therefore the Claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business. The Claimant did not take and has not taken reasonable steps to do so, despite a period of nine and a half months between the alleged incident on 19th November 2017 and the default Judgement on 29th August 2018. See CPR - Service of Documents, attached as evidence E.17.

5. The Claimant continues to use outdated addresses rather than take reasonable steps to ascertain the Defendant’s current address, despite having knowledge of clearly permissible methods of doing so. As per a Freedom of Information Request (FOIR3988) from June 2014, the Claimant was aware of the DVLA allowing the use of Credit Reference Agencies and Tracing Agencies. The FOIR3988 specifically notes that the circumstances that permit the use of said agencies “apply equally to the car parking industry”. Furthermore, the FOIR3988 clearly states that there are two distinct opportunities where the Claimant is permitted to use such Agencies as reasonable steps to ascertain the Defendant’s current address, as per the following paragraph: “A Notice to Keeper should be sent allowing 28 days to respond. On the 29th day a reminder letter should be sent, in line with the Code of Practice and a further 14 days should be given. If there is still no response then tracing activities can begin. Alternatively, if notification has been received that the addressee is no longer at the address you have received from DVLA, tracing activities can begin.” These opportunities and procedures have clearly been ignored by the Claimant in an attempt to obtain a default judgement. See Copy of DVLA Freedom of Information Request (FOIR3988), attached as evidence E.18.

6. Further to the above, at the time of writing the Claimant has not attempted to contact the Defendant in any manner, or send any information regarding the alleged incident to the Defendant at the Defendant’s current address, even after the Defendant provided their current address to the Claimant on December 3rd 2018, or after the Defendant updated their address on their V5C Vehicle Registration document, as received and processed by the DVLA on 18th September 2018. See V888 Response Letter, attached as evidence E.3.

7. Furthermore, the Defendant’s circumstances in this matter are far from unique. The Claimant appears to have consistently failed to reasonably pursue the claim, as has been referred to as the practice of ‘Credit Clamping’, which several members of the Government have strongly condemned. Prime Minister Theresa May has pledged to investigate the ‘abuse’ of the CCJ system, whilst the Right Honourable Sir Oliver Heald QC MP has been quoted as saying the following on 23 December 2016 “It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgements. 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” and has "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." See Daily Mail Article, attached as evidence E.19.


8. The Defendant is a law-abiding citizen with no previous debts, reliance on credit or defaults on credit or debt, and made quantifiable attempts to remain updated on all correspondence for a year after moving from their previous address to their current address. As the Defendant’s move from their previous address to their current address was a move from a family address to a new home, and as a result of the Defendant’s parent’s divorce, the Defendant used a Royal Mail redirect to forward all paper mail from the previous address to their father’s nearby address ( [REDACTED]), where it was regularly checked and received. The Defendant asks the Court to note that the Defendant is still awaiting a response from Royal Mail with a receipt of the Redirect Service in question and will update this application with said receipt when they receive it, as well as bringing it to any hearing as further evidence. Until then, as evidence of the request for the receipt, see Request for Royal Mail Redirect Receipt Email, attached as evidence E.20.


9. Furthermore, the Defendant updated their V5C Vehicle Registration document as soon as they became aware of it being outdated, on 18th September 2018, despite not receiving any contact from any authority requiring them to do so, which serves as further evidence that the Defendant has not attempted to avoid any debt or contact. See V888 Response Letter, attached as evidence E.3.


10. In view of the above, the Defendant invites the court to Set Aside the default Judgement in question on the basis that:



10.1 As the Defendant did not respond to any alleged attempts at contact from the Claimant over a period of more than nine months, there was no reasonable presumption that the Defendant resided at the address in question, and furthermore the Claimant did not take any reasonable steps to determine the Defendant’s current address. All proceedings until now have therefore never been served to the Defendant, and so the Defendant has at no point been able to defend themself. The claim is therefore defective and the Court must set aside the Judgement.

10.2. The Defendant additionally has a reasonable argument against the claim, which they will be able to present upon request at a further hearing and summarise in advance. The Defendant has been granted no opportunity to present their defence so far, and thus the claim is therefore defective and the Court must set aside the Judgement. See Draft Defence, attached.


11. The Defendant asks that, further to the above, the Court order the Claimant to refund the costs, or alternatively reserve the costs, as the Defendant is aware that the Claimant may discontinue if the Judgement is set aside, leaving the Defendant with a loss of £255 Court Free costs, in addition to the £24 in applications to TrustOnline for the aforementioned Registry Trust searches, and any loss of salary or leave and travel expenses of any kind incurred in attending the Set Aside hearing.

11. I believe that the facts stated in this witness statement are true.

Signed: [REDACTED] (Defendant)

Dated: 02/01/2019

[WITNESS STATEMENT ENDS]

---

DRAFT ORDER

IN THE COUNTY COURT AT: [REDACTED]

CIVIL ENFORCEMENT LIMITED (Claimant)

And

[REDACTED] (Defendant)

CLAIM No: [REDACTED]

IT IS ORDERED that:

1. The default judgment dated 29/08/2018 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.

[DRAFT ORDER ENDS]

---

DRAFT DEFENCE

1. On discovering this CCJ, the Defendant promptly contacted the [REDACTED Court] on Monday 3rd December 2018 to find out details of the Default Judgement. The court provided the Defendant with a telephone number for contacting the Claimant, and the Defendant promptly called them on that same day. The Defendant was told by the Claimant that they had ‘no option but to pay the fee’. This is demonstrably false, as evidenced by this very application to the court, and constitutes a deliberate attempt to thwart any efforts to defend the claim, in 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’, such as this application for the Judgement to be Set Aside and any further hearings whereby the Defendant can present their defence.

2. The Defendant understands that the Claimant is a private 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.

2.1. It appears therefore that 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’. In light of this, the Defendant thus disputes the claim in its entirety, as the Defendant does not know the wording of the contract nor do they know the means by which the contract was alleged to come into force.

2.2. The Defendant understands 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 must comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). 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 the Defendant as the Registered Keeper in any case and where said Keeper is unable to identify the driver.

2.3. Due to the length of time since the alleged incident (over thirteen months at the time of writing), the Defendant has little to no recollection of the day in question, and as evidenced by the attached Certificates of Insurance, multiple drivers are, and have been, registered to the vehicle 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 thirteen months later. Furthermore there is no such obligation in law, as confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that a vehicle’s Registered Keeper can only be held liable under the PoFA Schedule 4, and not by presumption or any other legal argument. See Insurance Certificate 2017 and Insurance Certificate 2018.

2.4. For the Claimant to have obliged the Defendant to provide the drivers details at the time of said breach of contract, it is understood that the Claimant would be required to apply for a ‘Norwich Pharmacal Order’, the Defendant is not aware of any such order being made.

2.5. Furthermore, given the time delay of more than thirteen months 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.

2.6. The Claimant has not provided any photographic evidence pertaining to the alleged breach. A copy the request dated 31st December 2018 made to the Claimant to provide the same has been attached. See SAR Email from Defendant to Claimant, attached as evidence E.15.

2.7. The Defendant further submits that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.7.1. 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.

2.7.2. 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.


2.8. On this basis the Defendant believes that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.


2.9. 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:

2.9.1. 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;

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

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

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

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

2.9.6. If charges over and above the initial charge are being claimed, the basis on which this is being claimed;

2.9.7. If Interest charges are being claimed, the basis on which this is being claimed;

2.9.8. Evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to an attempt at triple 'recovery' reaching over £347, despite the PoFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper;

2.9.9. 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.


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


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


2.12. On this basis I believe that the Claimant has not provided any reasonable course 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, in light of the lack of evidence showing the Defendant as Registered Keeper to be liable for any ‘PCN’ whatsoever.

The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

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

Full Name: [REDACTED]
(Defendant)

Dated 2nd January 2019

[DRAFT DEFENCE ENDS]

Any thoughts welcome - massive thanks in advance! (Couple of other things I want to double check and brush up on myself but will circle back for those later...)

KeithP

You appear to have left out the "all enforcement action be put on hold" point from your Draft Order, despite acknowledging that you needed six points back in December.

Catan

Whoops! That's in the original doc thankfully, just a copy & paste error to here on the forums. For reference, it reads:

"6. All enforcement be put on hold pending the outcome of the application."

On that topic - the Draft Order, why is it specifically a six-point order, is that a legal standard, like all draft orders are six-point draft orders, or is it more of a template type of thing that's known to work well for this type of case from people here?

Other than that, does it seem to look okay? Appreciate it's an absolute mammoth post so no pressure at all for anyone to go through it.

My main concern is the PoFA / registered keeper argument. I'm still not exactly sure on it as I've just been reverse engineering my argument from other successful ones here, and from the wording of the PoFA itself (which isn't suuper clear to a layperson).

To be clear, am I right in arguing that:

1. Under PoFA Section 4, CEL are required to issue a 'Notice to Keeper' to the keeper within 14 days of the alleged incident.

2. I, the Defendant, haven't been issued with any Notice to Keeper.

3. I likewise can't be reasonably expected to remember the driver on the day that long ago, and am not required to by law anyway.

Therefore, they have not complied with the PoFA 2012 and therefore cannot serve me with a claim or fee as registered keeper of the vehicle.

My question is around point 2 in particular as well - I haven't received anything, but am I arguing that I haven't received anything because they've been sending it to the wrong address, or that I haven't received anything because they haven't sent it at all? Or both - that I haven't received anything and it doesn't matter why, I just haven't? (I ask because I sent my SAR to them at the end of Dec and the Set Aside hearing is before the 28 days are up, so I have a feeling they won't reply with any info on what they've 'sent' to me at all in time for me to know one way or another).

KeithP

Catan wrote: »

On that topic - the Draft Order, why is it specifically a six-point order, is that a legal standard, like all draft orders are six-point draft orders, or is it more of a template type of thing that's known to work well for this type of case from people here?

As you suggest, it is just a comprehensive Draft Order put together over the years which seems to cover all the points needed.

If anyone thinks of something missing, perhaps guidance here will talk about a seven point draft order in future. Who knows?

Catan

Update - here's an interesting one...

I've had a voicemail from a withheld number, someone claiming to be from Civil Enforcement Ltd. regarding the hearing on Thursday, in which they said they "wish to agree for the removal of the CCJ, no order for costs"*, and for me "to only pay for the parking charge notice, the original charge".

Not quite sure what to make of it! To me this says they've clearly seen the application and decided that it's better to take the hit and just ask for the original fee (£60? £100?) rather than risk having to pay my costs - but it also seems like a bit of a trap... if I agree to pay the original fee, then I lose the ability to argue that I shouldn't be liable for paying the fee at all in the first place, which is obviously key to me getting it set aside (and potentially winning the further hearing) down the line.

I have a feeling what you guys are going to say... I'm leaning towards not replying, keeping the message saved and including it as evidence that CEL clearly have no confidence in their original claim against me at court, rather than taking the deal? Or are there no downsides (other than that £60-100, obviously, which I'd clearly rather not be paying...) to just taking the deal and clearing the nightmare CCJ.

Clear example of credit clamping, either way - they're genuinely dangling my credit score over my head for me to pay them the fine!

*Does "no order for costs" mean what I think it means, which is that I don't have a chance to ask for that £255 or any other costs back? Anyone have a definition?

Thanks again all!