CCJ Set aside CEL help please

a6915137

Thanks Coupon-mad you are an angel.
So is the draft order and witness statement (in addition to bank statement letter from the council and letter from the hiring company) is all I need to have with the N244 form guys. tx

Coupon-mad

Yes, and have you paid the fee or applied for help with fees, already?

a6915137

Yes I have already paid. Thanks

Coupon-mad

OK so send it to the named Judge who ordered you to do this, and get proof of posting and keep that proof.

a6915137

Hi All and thanks for the help & support that you have shown so far,

I have receive a reply from the court stating the date and time of the hearing.

the letter is asking to serve other parties with "skeleton argument"

how this is different from "Witness statement & Draft defence" that I have already sent to the court. below what the letter said.

"
Notice of Hearing of Application

At least there clear days before the hearing, the applicant shall file with the court and serve the other parties with any skeleton argument in respect of the application. The respondent to the application may also file and serve a Skeleton in reply, and, if so this should reach the court at least 24 hours before the hearing. Failure to comply with this direction may result in the judge being unable to read the documents in readiness for the hearing.
"

Thank you guys for the help

Coupon-mad

the letter is asking to serve other parties with "skeleton argument"

how this is different from "Witness statement & Draft defence" that I have already sent to the court.

Go to the NEWBIES thread and do CONTROL & F for the word 'skeleton'.

a6915137

Hi all,

As mentioned in my previous post. The court is asking for a skeleton. Please forgive my ignorance in this area, I have never been in the court or have experience in writing a legal document.So your help is much appreciated. Below the statement that I have submitted to the court I also put few paragraph that I think it should be included in the Skeleton. I know it does looks poor and not long as others.

IN THE COUNTY COURT AT ******
Claim No. ********
BETWEEN:
Civil Enforcement Ltd

Claimant
– and –
Defendant
********
_________________________________
WITNESS STATEMENT OF ******
_________________________________

1. I am ******** and I am the defendant in this matter. This is my supporting statement to my application dated ****January 2019 requesting to:
a. Set aside the default judgment dated ****January 2019 as it was defectively served using an old address.

b. b. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

c. c. Order for the original claim to be set aside.

2. I understand that the claimant obtained a default judgment against me on ******2018. However, it was not served at my current address, therefore I was not aware of the county court judgment until I checked my credit score in ***2019 to find out that it falls by 200 point. Alarmed by this unexpected event, I used Experian service and trust online website (please see the attached trust online report dated to ****) to find the reason. Then I found that the claimant filed CCJ against my credit record, unbeknown to me, on ****** 2018.

3. The car related to this matter was a hired vehicle, and I believe that the claimant received my old address in error (through no fault of mine) from the hiring company. I did not receive any letters, and did not ignore any letters, and the Claimant took no reasonable steps to trace my correct address nor did they check with the hire firm again, or they would have known my correct address before commencing litigation.

4. I hired the car from April 2017 until ***of Oct 2017. However, I have changed my address during this period. And I have contacted the hiring company and I have informed them about my new address. I have attached a letter from the hiring company that I received on ****** which proves that the company has my current address.

5. I have changed my address around June 2017. which can be proved by the presence of my name on the electoral register (please see the attached letter from the council) and also my bank statement.

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

7. I believe the Claimant has behaved unreasonably in pursuing 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 Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

8. 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.

9. Considering the above I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

10. It is admitted that Defendant was hiring the vehicle. However, because the length of the hiring period ( from April 2017 until ***of Oct 2017), and the fact that the Defendant was not the only driver of the vehicle, and the location that I do not recognise or recall, on the balance of probabilities I was not driving on that occasion.

11. The Claimant has provided no evidence that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA"), and this Claimant is known not to bother to comply with that statute.

12. In addition, the Claimant will not have transferred liability to the hirer in the prescribed manner under paragraphs 13 and 14 of Schedule 4 of the POFA. No parking firm complies with that requirement. So even if the Court is minded to believe that a purported 'Notice to Hirer' being sent to an old address is acceptable, the lack of enclosures renders the document as not properly served under the statute. Thus, a vehicle hirer who, on the balance of probabilities was not the driver on that occasion, has an absolute defence in this instance and the Claimant's claim has no merit.


I, ********, the Defendant, believe the facts stated within this Witness Statement to be true.
Signed: ________________________________
Dated: __________**********_____________


Skeleton

IN THE COUNTY COURT AT
NO:
BETWEEN: Civil Enforcement Ltd
-and-
****************

SKELETON ARGUMENT

It is clear that the claimant has made no effort to track the correct address of defendant. Therefore, the defendant had no chance to challenge the PCN.

The claimant has altered the claim amount, the original amount is believed to be around £30, I am not aware of the exact amount as I didn’t receive the original PCN. This amount was increased to £254.88 and then to £353.48 to include solicitor’s cost and court fee. I respectfully suggest that these amounts are erroneous and nothing more than an effort to generate more income and amounts to a penalty which is wholly disproportionate to any alleged loss suffered by the claimant

The Claimant has provided no evidence that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA"), and this Claimant is known not to bother to comply with that statute.

In addition, the Claimant will not have transferred liability to the hirer in the prescribed manner under paragraphs 13 and 14 of Schedule 4 of the POFA. No parking firm complies with that requirement. So even if the Court is minded to believe that a purported 'Notice to Hirer' being sent to an old address is acceptable, the lack of enclosures renders the document as not properly served under the statute. Thus, a vehicle hirer who, on the balance of probabilities was not the driver on that occasion, has an absolute defence in this instance and the Claimant's claim has no merit.

I believe that the facts stated in this Skeleton Defence are true.


Signed xxxxxxxxxxxxxxxx


Dated xxxxxxxxxxx


I I really appreciate any feedback.
Thanks

Coupon-mad

You are right to focus on the two points of the added costs and the POFA, but as the Judge wants a skeleton argument about the claim, you need to also include evidence:

- the POFA with para 13 and 14, and para 9, highlighted. The first of those paras are specifically about hire/lease cars, and para 9 is a back up which shows what a NTK must include about the warning of transfer of liability away from the driver - the 9(2)f words are mandatory. In 2017 CEL did NOT have that in their NTKs whether they tried to serve one or not, it was incapable of establishing any transfer of liability. That is in addition to the lack of enclosures the POFA requires the PPC serve in a hirer/lessee case!

- Henry Greenslade's words 'UNDERSTANDING KEEPER LIABILITY' from the POPLA Annual Report 2015 which shows that liability cannot pass from the driver to the keeper (or in your case, hirer) and nor does the keeper/hirer have any obligation to name the driver.

- any proof that more than one person was insured and could have driven that car you leased in that period in 2017, to stop the Judge deciding on the balance of probabilities it was you anyway.

- a copy of the press release linked here, as this is actually a set aside application:

http://parking-prankster.blogspot.com/2016/12/government-announce-ccj-review-due-to.html

Not the blog, print the press release - PPCs were singled out as the worst offenders.

Apart the from the main job of convincing the Judge so that he/she is satisfied that the CCJ should be set aside as it was not served properly and you were 'there to be found' all along, what you also need to do, is paint the picture that the Claimant has NO prospects of success in court with this claim, and hope the Judge strikes the entire claim out as well as setting aside the CCJ.

This person achieved it this week and an order for CEL to pay their £255 fee:

https://forums.moneysavingexpert.com/discussion/comment/75772950#Comment_75772950

a6915137

Hi Coupon-mad and all, below the new version of the skeleton, I would appraiciate any feedback. there is new consultation available online that I have tried to use title is (Default County Court Judgments A consultation on ensuring the process works
fairly, for both creditors and debtors) . thanks


The POFA with Para 9 (4) specifies that the notice must be given by (a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period. None of this happened. The notice was not handed to me or sent the current address.


The claimant has altered the claim amount, the original amount is believed to be around £30, I am not aware of the exact amount as I didn’t receive the original PCN. This amount was increased to £254.88 and then to £353.48 to include solicitor’s cost and court fee. I respectfully suggest that these amounts are erroneous and nothing more than an effort to generate more income and amounts to a penalty which is wholly disproportionate to any alleged loss suffered by the claimant


The Claimant has provided no evidence that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA"), and this Claimant is known not to bother to comply with that statute.

In addition, the Claimant will not have transferred liability to the hirer in the prescribed manner under paragraphs 13 and 14 of Schedule 4 of the POFA. No parking firm complies with that requirement. So even if the Court is minded to believe that a purported 'Notice to Hirer' being sent to an old address is acceptable, the lack of enclosures renders the document as not properly served under the statute. Thus, a vehicle hirer who, on the balance of probabilities was not the driver on that occasion, has an absolute defence in this instance and the Claimant's claim has no merit.


I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. According to publicly available information (Default County Court Judgments A consultation on ensuring the process works fairly, for both creditors and debtors), my circumstances are far from being unique. There has been a general increase in the number of CCJs issued to consumers over the last five years. In Q3 2017 consumer CCJs rose by 24% to 317,793 with an associated value of £467.9m. But, alarmingly, in more than 80% of cases judgments are issued with no defence heard in court.

The consultation on default County Court Judgments which has been published in May 2018 (Default County Court Judgments A consultation on ensuring the process works fairly, for both creditors and debtors),it says “ It is inevitable that, sometimes, people are unaware that they are subject to a County Court judgment, but there is concern that in some cases this may be happening because creditors deliberately use addresses for debtors that they know to be old. This deprives debtors the chance to defend the claim and having to suffer the consequences of possible enforcement as creditors use this as leverage for future debt recovery”

The same document also mentioned “A claimant must take “reasonable steps” to ascertain the defendant’s current address. Where the claimant is unable to ascertain the defendant’s current address, the claimant must consider whether there is an alternative place or method by which the claim may be served with the permission of the court. If the claimant is unable to ascertain either the defendant’s current address or an alternative method of service, the claim may be served on the defendant’s last known address.” Considering that I moved from the address that has been supplied to the court by the claimant almost two years now which mean that my current is widely available in credit agency database. I strongly believe that the claimant has made no effort at all to ensure the correct address of the defendant.


Same document also mentioned “Our proposal is to provide that a judgment may be moved from the Register where:
• the court is satisfied that the defendant was unaware of the claim/judgment when originally issued/entered
• the court is satisfied that the defendant has only just become aware of the claim and judgment ”


Same document propose ”that anyone who has had a debt judgment passed against them without their knowledge will immediately have it struck from their record once unknown debts are resolved and a judge agrees that the person was unaware. Ministers are also considering moves to make firms prove they have sent courts correct address details when making claims”

Coupon-mad

Very good.

I would just change 'court fee' here (as a court filing fee is recoverable) to 'damages':

and then to an eye-watering attempt at tenfold recovery, at £353.48 to include imaginary, never incurred and never paid 'indemnity/debt recovery costs/damages and solicitor's costs [STRIKE]and court fee[/STRIKE], despite this being a typical cut&paste robo-claim with no direct involvement by any solicitor. I respectfully suggest that these amounts are erroneous and nothing more than an effort to generate more income and amounts to a penalty which is wholly disproportionate to any alleged loss suffered by the claimant. To charge a sum in excess of the sum stated on the Notice to keeper is also contrary to statute law (POFA Schedule 4 sets that ceiling).