Please help confirming my witness statement is sufficient

zap99

I finally have a court date. After submitting everything in late March and waiting, waiting and waiting some more, I will be heading to my set-aside hearing in early November.

It is now time to prepare my skeleton arguments. I have read all the necessary posts etc as recommended, but I do have a few questions:

1) Can I still use "registered keeper" / POFA arguments if the alleged offence was in a hired car where I was explicitly the named driver?
2) The parking lot is now managed by a different company, so I can't use any legibility arguments as I don't have any evidence.
3) The letter of demand was initially sent to the hire company within permissible time limits, so I can't use those arguments either.
4) I *do* have in my possession a letter from an energy company (regarding the final bill of the previous address) which proves that I was traceable,

Ultimately, I'm trying to figure out the best approach in order to ensure that all my ducks are in a row. I've copied the Skeleton Argument from one of newbie posts, but I'm just feeling a bit lost in terms of knowing whether or not I can use the arguments.

Is it going to be enough to show evidence from:

1) Trust Online showing CCJ filed at incorrect address
2) Utility provider showing that I was traceable via commonly used mechanisms
3) SAR issued to CEL showing they only ever sent notices to previous address
4) Grace periods generally being 'ten minutes either side', and I only overstayed by 12 minutes.
5) The fact that I lived at the address of the alleged offence, and was clearly loading the vehicle with the intention of moving out of the property.

I'm concerned that if I just copy/paste from other cases that some of it may not be relevant. As such, I'm just asking for some guidance in terms of where I should focus, given that this is through a hire-car company (per hour hire).

Thanks

nosferatu1001

1) Yes,, because its their job to prove who drove, not you. Just dont talk about it yourself - no need to highlight it! THEIR BURDEN ALWAYS - dont make their job easy!
2) Yes you can, you can make a statement to that effect. ANd pointing out they got replaced wont make them look too good!
3) Well no but you can use the fact that the notice to hirer did not contain teh mandatory enclosures, as it didnt. You lknow this as it son EVERY hire thread that youmsut have read about a dozen of by now. Para 13/14. Plus ANY other failure of POFA
4) Good!

A set aside is, however, NOT the place where you defend the *claim*, other than showing you HAVE a viable defence to get a set aside under 13.3. Youre showing why the judgement should be *set aside* as you didnt get served correctly. SO no need for a big skellie argument.

zap99

Hi there,

My court date is in a little under a month. I cannot wait to have this 'black mark' removed off my name!

With this in mind, please could you give my skeleton argument a read, and let me know if I need to add/remove anything? I've read through several skeleton arguments and taken the bits that apply to my case. I'm confident I've got enough here to satisfy the judge. Thanks in advance!



Skeleton Argument


1) 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 to the current address.

2) The claimant has altered the claim amount, the original amount is believed to be around £60, I am not aware of the exact amount as I didn’t receive the original PCN. This amount was increased to £343.12 to include solicitor’s costs. 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.

3) The claimant had no locus standi at the time of this parking event and at best, were contractors of a principal, the landowner. They have failed to show a cause for action by way of sight of a copy of the contract they have with the landowner to assign the right to enter into contracts with the public and to make claims and take civil action against drivers in their own name, in 2016.

4) The Claimant places reliance on its provision of signage at the site and upon the content of that signage. However, the Claimant is under a duty to the Court to provide full and fair disclosure by informing it of all relevant issues. The Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage. At the time the driver allegedly parked at this location, it is contended that a criminal offence was being committed in order to artificially create the appearance of a contract.

5) The commission of an illegal wrong being present at the time of a driver allegedly entering the contract means that the Claimant will not be able to enforce the contract. The illegality is central to the contract (the terms on the signs themselves) and is not merely a minor aspect thus it should not be held to be too remote to render the contract enforceable.

6) 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.

7) 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.

8) 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.

9) 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”

10) 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 on the same day of the alleged offence, my current address was widely available in several credit agency databases. I strongly believe that the claimant has made no effort at all to ensure the correct address of the defendant. This is further evidenced by the letter received for settlement of a final utility bill at the address in question, whereby the company had followed reasonable steps to trace my identity and current address and located me successfully. (Attachment A)

11) 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”

12) Same document proposes: ”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”

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



Signed xxxxxxxxxxxxxxxx


Dated xxxxxxxxxxx

zap99

Could someone please give this a read to confirm I'm on the right track? Much appreciated!

Le_Kirk

A Skeleton Argument is supposed to be just that - a skeleton -but you seem to have put as much flesh on the bones as you would find in a defence or a witness statement. A skellie is better as a set of bullet points pointing to paragraphs in your defence (already submitted) and your witness statement and evidence (already submitted) and is used to guide you through the presentation you want to make to the judge.

zap99

I had my hearing today and the judge agreed to the set aside!

First and foremost, than you all for your help. I literally could not have done this without you. You were a calming influence, and provided guidance that was totally invaluable.

Now, the actual experience - woah! I arrived at the London Court, and found my case on the board. It was a bit obscure - listed under a specific court number, but with a different judge (on a separate piece of paper). I went to the listed room, waited 10 minutes for someone to appear, and asked them to confirm that my case was being heard there.

Nope, it wasn't. It was at another bloody court close to St Paul's! I had 10 minutes to get there. I cycled my legs off and arrived ten minutes late. I apologised for being late, and explained that my letter had explicitly said the other court, and I even called to confirm. They apologised and admitted this was an administrative error, and could 'possibly explain' why nobody else was showing up on that day! :rotfl:

I met with the judge and handed over my documents. Problem is, the skeleton argument and a bunch of evidence I had submitted via email just never made it to the judge (even though I received an auto confirmation).

Luckily, I was prepared and gave her printouts I had spare. I didn't have a copy of the judgement, and I was concerned she wasn't going to set it aside as she did say 'there's a limited amount I can do without the actual judgement'.

Thankfully, I had another printout of the SAR I had submitted against CEL, and gave this to her. With this, she was satisfied and granted the set aside.

She then explained that it resets the case back to its initial state, and I now have to file a defence. She asked if I want to submit my skeleton argument as a defence, and I said I would rather prepare this separately.

So now I will wait for this notice to appear, and then will get busy preparing a defence. To be honest, I don't have the time to do any of this stuff, and I'm hoping that CEL will just discontinue proceedings.

If they don't however, do i have the legal option to just contact them and pay an agreed upon amount for them to discontinue?

Thanks again for all your assistance - what a relief!

Coupon-mad

If they don't however, do i have the legal option to just contact them and pay an agreed upon amount for them to discontinue?

Yes...but don't even think about that as it would be around £250. And - unless this set aside was free for you under the Help With Fees scheme - you are OWED £255 in fees (plus your travel and loss of leave/salary).

It would leave you some £600 out of pocket, for a scam.

They'll discontinue I expect. Nicely done re the CCJ!

Did she reserve costs so you can claim the £255 and other costs, from CEL in the end?
It is vital.

nosferatu1001

Did the judge mention anythign about your costs ? Reserved or similar?

zap99

To be honest, I was just relieved that she granted the set-aside, as she seemed to intimate that I didn't have the necessary documents (the actual judgement). Not sure how I was supposed to get that when neither court could provide it.

She also didn't have a copy, which I find totally weird.

She did not read any of the documents she did have (initial witness statement, draft order), and paid no attention to the skeleton argument either. She said she would draw up the draft order, even though I had already written one.

This is where it's obviously beneficial having an actual lawyer with you - I was clearly just relieved that things had gone my way, the last thing I cared about was trying to recoup the costs. This has caused me endless stress, and at that point I would've paid £5000 to get this thing to go away.

She also mentioned that they may appeal the set-aside, which I find weird. So at this point it's a waiting game - I'll see what arrives in the post, but I won't reach out and try and settle with CEL until things have ticked along.

I would love to dedicate more time to this and recover costs, but at this point the sooner I can just be done with this whole ridiculous mess, the better.

nosferatu1001

The CCBC would be able to find it. G'teed. Its filed on their systems.

They wont appeal it. Not a hope. There was a hearing, they lost. They have no gruonds to appeal

You should have raised the question about costs in the hearing, at least asking they be reserved.