CEL CCJ - Set Aside Order and Witness Statement : Ready for submission?

Theadore

Hello

Firstly, this forum is such a lifesaver. Thank you so much for all the sterling work you are doing in helping people like me who would have had no idea what to do in this very stressful situation!

Like many posters, I found out when my credit rating nosedived last Friday that a CCJ was issued to me in February 2019 in relation to a CEL parking charge that I had no knowledge of as the claim forms and order had been served at my old address. The parking charge relates to a hotel stay where parking should have been waived so we assume it was an issue with inputing the wrong vrn. I am however using the Registered Keeper defence in good faith as I know I was definitely not driving due to the location of the hotel.

I was late in updating the V5C to our new address as I only realised this was necessary when I needed to make an overseas permit application. I have therefore been open about this in the statement.

I will submit a SAR to CEL but would like to get my N244 in asap so would be grateful for any advice or thoughts on the order and witness statement I have drafted below please. I have removed the date of the judgment so as not to be identified but will ensure that is completed when I submit.

Thanks in advance for any comments!

DRAFT ORDER
IN THE COUNTY COURT AT: XXXX
CLAIM No: XXXXXXXXXX
BETWEEN:
CIVIL ENFORCEMENT LIMITED (Claimant)
-- and --
XXXXXXXXXX (Defendant)
______________________________________________
DRAFT ORDER
______________________________________________

IT IS ORDERED THAT:
1. The default judgment dated on XXX February 2019 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/19 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 following 14 days on XX/XX/19.
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.
6. All enforcement be put on hold pending the outcome of the application.

WITNESS STATEMENT
IN THE COUNTY COURT AT: XXXXX
CLAIM No: XXXXXXX
BETWEEN:
CIVIL ENFORCEMENT LIMITED (Claimant)
-- and --
XXXXXXXX (Defendant)
______________________________________________
WITNESS STATEMENT
______________________________________________
1. I am XXXXX and I am the defendant in this matter. This is my supporting statement to my application dated XXX 2019 requesting to:
a. Set aside the default judgment dated XX February 2019 as it was not properly served at my current address
b. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.
c. Order for the original claim to be set aside.

2. Default Judgment

2.1 I understand that the claimant obtained a default judgment against me as the defendant on XXX February 2019. However, this default judgment has not been served at my current address. Therefore, I was not aware of the County Court Judgment until I received notification of a change in my credit rating score on the XXX March 2019.

2.2 On learning of the County Court Judgement on XXX March 2019, I immediately contacted XXXX County Court to find out details of the Default Judgement. It was only at this point that I discovered that Civil Enforcement Ltd was the claimant and that the judgment was regarding a parking charge notice. On XXX April 2019 I received a copy of the judgment from XXX County Court.

2.3 I understand that the judgment was served at an OLD ADDRESS (XXXXXXXXX). However, I moved to a new address in December 2017 with my tenancy at the old address ending on XXX January 2018. In support of this I can provide confirmation of the end of tenancy at this old address and details from XXX County Council showing my updated details for the purposes of paying Council tax as well as a mortgage statement at my new address. See EVIDENCE A

2.4 I have not ever received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.

2.5 Although all my details had been changed to my new address, including my driving licence I overlooked my V5C until June 2018 when I needed to apply for an overseas permit. This serves as further evidence that I acted in good faith and have not attempted to avoid any debt or contact. SEE EVIDENCE B.

2.6 I suggest the claimant did not make reasonable enquiries as to my current address before pursuing the court order especially considering they had good reason to believe they did not hold my current contact details. As stated in the Civil Procedure Rules CPR 6.9(3) where a claimant has reason to believe that the address of the defendant referred is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business . At the time of the County Court Judgment, my V5C, driving license and HMRC records were registered at my new address so I was there to be found by a simple trace SEE EVIDENCE C. Furthermore, considering they received no response from me to their correspondence I believe the Claimant had reasonable cause to question whether they were using an accurate address and that simple searches could have provided them with the correct address.

2.6 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details. According to publicly available information, my circumstances are far from being 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, while The Rt Hon Sir Oliver Heald QC MP has been quoted as saying on 23rd December 2016: "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. 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 "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."

2.6. 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.

2.7. Considering the above I as the Defendant 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.

3. Order dismissing the Claim

3.1 I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand the Claimant to be a Private Parking Company that uses ANPR in order to issue “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 that the Claimant has obtained details of the vehicle for which I am the Registered Keeper and used those details to make a claim for a ‘Parking Charge Notice’. Any Notice to Keeper served by the Claimant must comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. 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 me as the Registered Keeper in any case. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

3.3 If the Notice to Keeper was not issued within 14 days, then the Claimant is required to prove who the driver of the vehicle was at the time of the alleged incident. The vehicle to which I am the Registered Keeper was at the time insured to be driven by two adults (see EVIDENCE C) I submit that the Claimant cannot provide such evidence to prove the driver of the vehicle they claim was involved in the alleged incident.

3.4 I further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold myself as the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

2.5. If the Claimant has obtained details of the vehicle for which I am 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.

2.6. I submit that this is not a penalty charge notice but a private one based on contract law and therefore the Claimant must:

a) 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

b) set out the facts on which it is asserted that the claimant has a cause of action against this defendant, and

c) identify the 'relevant obligation' of the defendant to pay parking charges and the 'relevant land' on which the parking is said to have occurred

d) state whether the claim is in relation to a 'relevant contract' or in respect of an alleged trespass or other tort (as per the POFA 2012 Schedule 4)

e) disclose full particulars and a contract, in order to evidence a claim in law

f) evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a brazen attempt at triple 'recovery' reaching over £290 despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed).

3.6. On this basis I believe that the Claimant has not provided any reasonable cause of action and absent the above being produced in short order, I ask 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, despite not being shown to be liable for any parking charge at all.

3.7 If required to defend at a further hearing, I will require all copies of paperwork, letters and other documentation including pictures of all signage from the Claimant in order to make informed decisions and statements in a comprehensive defence as keeper of a vehicle.

Statement of Truth:

I believe that the facts stated in this Witness Statement are true.
Full name: XXXXXXXXXXX
Signed: ______________________

Evidence enclosed:
A: Proof of end of tenancy
B: Overseas permit application
C: Current Address Details
Insurance details

Umkomaas

Please check your paragraph numbering on your WS.

Theadore

Thank you Umkomaas. Numbering updated in the WS so I will go ahead and submit. Will keep the forum updated on how I get on!

Le_Kirk

As well as your numbering still being wrong in post # 1, how can you prove your point 3.4, if you did not receive the original PCN? Did you submit a SAR and find out that way?

Theadore

I picked up 3.4 from other posts as not yet received the SAR disclosure from CEL. Should I amend it to say that I understand CEL do not use the wording but await a copy of the Penalty Charge Notice issued for this case to verify?

Le_Kirk

You could say that you have researched it but clearly cannot say you have seen it because you never received it!

Theadore

Thanks LeKirk! Have amended to this (with all numbers now correct in my WS!)

3.4 Research I have undertaken states that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue. As stated at 2.4, I have not ever received any previous documentation from the Claimant about this matter so await full disclosure of the Penalty Charge Notice issued that I have requested via a Subject Access Request (please see evidence f). If the Parking Charge Notice in this matter did not include ‘Protection of Freedoms Act 2012’ wording, the Claimant cannot hold myself as the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

D_P_Dance

Are you aware that on 18th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

Until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Theadore

Thanks D_P_Dance - Shall add that to my paragraph referencing Heald.

Coupon-mad

I hope you haven't hung around and have submitted this promptly?

Theadore

Thanks Coupon Mad. I submitted it that same day and have now received correspondence from my local court confirming the date on which my set aside application will be heard. I'm therefore now working on my skeleton argument to help structure what I say at the set aside hearing. Will keep you all posted on how I get on here!