Set aside defence help please

Igab17

Hi all. In need of some help as I need to get my NC244 form sent off by tomorrow. On 11th January I collected a letter from an old address it was a judgement of claimant default letter for a parking fine in April 2017 they are asking for £278 forthwith.

A bit of background: I never received a PCN. NtK was received end of May 2017. Soon as I received the NtK I emailed the parking company an appeal which they rejected as it was out of the 28days.
I stressed I hadn’t received the PCN so I couldn’t appeal something I knew nothing about!
I contacted AOS the same day they said they couldn’t help as it was under the discretion of the parking company to allow me to appeal.

I asked the parking company for details of the PCN they said it was issued on the 20th April I told them the 20th April fell on a Friday so even if it had been sent I wouldn’t of received it within the 14days in which it should be received so it’s non compliant. I didn’t hear anything back from them.

October 2017 I found out they had instructed a debt collector who where sending letters to an old address! I immediately contacted the parking company once again to question why they were sending letters to an address I hadn’t lived at for many many years. I told them they had my address and they confirmed my address and said I need to speak to the debt collector to ask them why they were sending letters there.
I didn’t as I didn’t feel like that was my job?! If they have instructed someone on their behalf surely they should made sure they have the correct address. The emailed ended with the parking company telling me they will no longer assist or correspond with me so I told them to sent me to court so I can defend this parking fine.

No claim form was ever received when I contacted Northampton ccbc on Monday they said it was sent to the old address.

Migrating circumstances that led to the parking fine: it’s free parking for 3 hours to extend the parking you have to pay via Ringgo, on the day in question RingGo wasn’t working properly it deleted the 3 hours that were free and charged you the full 4 hours. The driver decided they would leave before the 3 hours was up unfortunately this didn’t happened as one of the children in the group sustained a head injury in the indoor play centre.
The car park is owned by the gym. It’s for customers of the gym, the play centre and a football club. I don’t believe the other two venues qualify for free parking.

I don’t know how long the driver has supposedly overstayed as it doesn’t state in on the NtK. The gym in question who owns the carpark has now closed down I sent them an email asking if they could help they said they would contact the parking company but couldnt guarantee anything.

I have also emailed RingGo to ask them if they have information with regards to the fault with their app on the day of question.

Which now brings me to now: I have filled out the NC244 and I’ve done a draft order I just need some help with the defence I have started. I suffer from brain fog and it feels like everything I put down isn’t making any sense I’m currently on antibiotics as well so not in the best shape.

Any help would be appreciated. Thank you x

Le_Kirk

I suffer from brain fog and

Imagine then how everybody else feels reading that wall of text. Can you break it up with some lines and then we'll attempt to read it.

In the meantime, go to the NEWBIE sticky (near where you pressed the NEW THREAD button) and read post # 2 particularly the bit that starts: -

HAVE YOU FOUND OUT ABOUT A CCJ (JUDGMENT FOR CLAIMANT) AND NEED IT SET ASIDE?

Here's how - DO NOT ring the parking firm up...and do not just pay them:

https://forums.moneysavingexpert.com/discussion/5581374

https://forums.moneysavingexpert.com/discussion/5585047

And read this thread:

https://forums.moneysavingexpert.com/discussion/5619965

Igab17

Sorry about that. I’ve tried to edit but the option is greyed out. Should I delete and repost.

Le_Kirk

Are you trying to do this on a phone? If so, you need to find a lappy or a PC as you will miss so much, especially editing on a mobie.

Igab17

Yes I was using my phone. I’ve jumped on the laptop and I’ve broken down the text.

Igab17

I’ve had a look at the links you provided I remember coming across one of the posts a few days ago thank you for the reminder as they are pretty full proof. Can I post up what I have prepared so far and get your feedback please.

The_Deep

It is the will of Parliament that these scammers, (very often former clampers), be put out of business.

Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers.

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 Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 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.

Igab17

This is my Draft order and WS:


IN THE XXXX COUNTY COURT
Claim number XXXX

BETWEEN:

Claimant

-and-


Defendant




DRAFT ORDER




It is ORDERED that:
The default judgement entered on XXX be set aside on the ground that

1. Under CPR 13.3, No claim form received.
2. The defendant has a real prospect of defending the claim
3. Order to be dismissed
4. The claimant to be reimbursed any costs


I am XXXXXX and I am the Defendant in this matter.

This Witness Statement is in support of my application dated XXXXXX to:

•Set aside the Default Judgement dated as it was not properly served at my current address;
•Order for the Claimant to pay the Defendant any fees paid
•Order for the original claim to be dismissed.


WITNESS STATEMENT OF XXXXXXXX
FOR JUDGMENT ENTERED TO BE SET ASIDE
__________________________________________________ ___________________

1.1 I understand that the Claimant obtained a Default Judgement against me as the Defendant on XXXXX. The claimant is in respect of an unpaid parking fine at

1.2 The claim form was not served at my current address and I thus was not aware of the Default Judgement until XXXX. I understand that this Claim was served at, . However I have not lived there since XXX

1.3 I hadn’t received previous documentation from the Claimant in this matter as any debt collector letters were also addressed to my old address, thus I was never able to properly challenge the Claimant’s claim.

1.4 The Claimant's claim relates to an incident on XXXX. At this time, DVLA records would show that the vehicle concerned in the matter, was registered at my current address, with myself as the registered keeper. Not at the address that has been served. I am also on the electoral roll for my current address.

1.5 I believe the Claimant has behaved unreasonable in pursing a claim against me without ensuring they held the Defendant’s 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.

1.6 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 stay the Judgment to avoid it being recorded against me. I also kindly ask the Court to consider the reimbursement of any fees from the claimant should this request be successful.


Statement of Truth

I, XXXXXX, the Defendant, believe the facts stated within this Witness Statement be true.

Signed:
_____________________________________________________

Dated:
—————————————————————————————

Coupon-mad

It needs to be a 6 point draft order to set aside, so search the forum for those words.

Igab17

Thank you I will amend that now to include the 6 points.
Below is my Defence for the set aside, I feel there is too much information in it and that half of it is probably incorrect but here goes..


I am XXXX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXX when it was parked at XXXX. The NtK stated the contravention as “Failure to Pay for the Duration of Stay .”

3. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the Claimant's case that:
a. There was a contract formed by the Defendant and the Claimant on XXXXX
b. There was an agreement to pay a sum or parking charge
c. That there were Terms and Conditions prominently displayed around the site
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The Claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

4. It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.
e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

5. It is further denied that the Defendant is liable for the purported debt.

Rebuttal of Claim

6. First correspondence from the claimant was on the XXXX this was in the form of a Notice to Keeper. Upon receiving this letter the defendant immediately emailed an appeal which was turned down. Reason was it was sent after the appeal time frame of 28days. The defendant explained no Parking Charge notice was received so how can anyone appeal a case they knew nothing about.
Information regarding the Parking Charge Notice was requested and is followed: Contractive XXXXX Issue date XXXX. No entry or exit times where given. The defendant informed the claimant that the parking charge notice was non compliant as it wouldn’t of been received within 14days of the contravention
The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel called RingGo App
On the day in question there seemed to be an issue with the RingGo service. Parking for XXXX Customers is free for 3 hours. Payment was attempted to extend the 3 hours in case time went over however the RingGo app deleted the free 3 hours and asked for payment for 4 hours. At the time it wasn’t made clear that customers of XXXXX could also extend the parking with a app supplied by XXXX on their site.
b. Several days after the RingGo app was updated to correct this fault. The defendant contacted RingGo on XXX to ask if they can send me some information relating to the error in the app and is currently awaiting their response
In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms
c. On XXXX the defendant emailed AOS to see if they could supply a POPLA code, they said if the Parking Charge Notice hasn’t been received it would be under the discretion of Claimant to allow an an appeal.
d. On the XXXXX the defendant contacted the claimant as a debt collection agency letter had been sent to an old address. On the letter it said they had source this address because the defendant hadn’t responded to previous letters. The defendant responded to the Notice to Keeper as stated above via email and the defendant has proof of the conversations between the defendant and the claimant.
The claimant confirmed they had the defendants current address and said they were no longer able to assist the defendant any further and will not enter into any further correspondence with the defendant
e. No court claim form was ever received, not at the defendants current address or at the defendants old address
f. On XXXX the defendant logged on to MoneyClaimsUK but was unable to see any information regarding the County Court Judgement as the defendant had no password. The defendant then rang the number provided on the Judgement letter and explained the situation and was advised to apply for a set aside
g.XXXX Gym seized business on XXXX. The defendant emailed XXX Gym on 18/01/2019 to ask them if they could help resolve the Parking fine. They said they would get in contact with the claimant but couldn’t guarantee anything.

7. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

8. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

9. The signage on this site was inadequate to form a contract with the motorist so to the point XXXX has now placed signage inside their venue warning customers who have parked in the car park.
a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice.
b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.
c. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

10. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £60 to £160. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
b. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £60 to £160. This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
b. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

Non-disclosure of reasonable grounds or particulars for bringing a claim:
11. The claimant are not the lawful occupier of the land. The Defendant has real belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.
a. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge
d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

12. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
‘The driver of the vehicle registration
XXX incurred the parking
charge(s) on XXXX for breaching the
terms of parking on the land at XXX Gym
The Defendant was driving the Vehicle and/or
is the Keeper of the Vehicle
AND THE CLAIMANT CLAIMS
£160.00 for Parking Charges / Damages and
indemnity costs if applicable, together with
interest of £6.81 pursuantto s69 of the
County Courts Act 1984 at 8% pa, continuing
to Judgement at £0.04 per day’

13. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.

14. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’


Lack of standing.
The claimant is unlikely to be the 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 stand to litigate in their own name. Any consideration would have been provided by the land owner, and only they would have been able to sue for any damages or trespass.
16. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

17. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.
18. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.


Solicitor costs

The claim includes a sum of £50, described as ‘Solicitor’s costs’. The Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis, using the bulk processing service, generating up to £50,000 of income. Given a standard working week, the claimant’s solicitor can spend no more than a few minutes per claim, hardly justifying the £50. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved. The £50 is not valid because it is not incurred by the claimant, generating over £1.5 million a year in profit.

19. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

20. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

I believe the facts stated in this Defence Statement are true.

Signed

—————————————————————————————————————————-

Coupon-mad

Below is my Defence for the set aside, I feel there is too much information in it and that half of it is probably incorrect but here goes..

OK, looks too wordy at first glance and you don't even need a defence yet.

You only send with your N244, the Witness Statement and Draft Order and the £255 fee (unless you qualify for fee remission on income grounds, which lots of people do, in fact).