CEL - Set Aside issued - Defence help for next steps!!

StickItToTheMan

Hi All,

Can I just say how amazing and helpful this forum has been with my fight so far!! I never thought I'd have the strength to go to court but I did and it's all (your fault ) thanks to your help that i've got through it!

So like many others on here I received a CCJ which I knew nothing about when applying for a mortgage and checked my Equifax account in September 2018.

I parked in a doctors/pub car park (spare bit of land that CEL have claimed) in June 2017. I visited the doctor and I was immediately rushed to hospital with suspected meningitis. Parking was least of my worries tbh. I ended up with viral meningitis and was signed off work for around 6 weeks.

I received no Notice To Owner or anything at my current address where the car was registered.
I have never received any paper regarding this ticket.
I presumed that as this car park had new signs/barriers etc that it obviously hadn't been set up yet and left it at that.

I have moved house twice since then always updating my V5 and have still received nothing from CEL. So you can imagine my surprise to receive a CCJ dated April 2018.

I applied for a set aside in November this year once I investigated all the details and I went to court on May 1st.

I used as much information as I could from this forum (THANK YOU) and made my case for the set aside. I have never been to court so I was completely petrified and I think even the judge could tell! CEL didn't show, as expected.

The judge laughed about some of the outdated information in my witness statement that was 'taken from the internet' but agreed to set it aside as long as I file a defence before May 29th in preparation for a second hearing.

So now

1. I will put a defence together, using similar defence set ups that I have looked at already on here. If i post it on here then will it be ok to receive some support please?

2. I will email my MP/MP of area I parked.

3. Hope that CEL do not respond to the defence or pay court fee and there is no second hearing! Then it will be cancelled? I am hoping for this.
I need my credit file clearing ASAP for my mortgage but I also do not want to pay a single penny to CEL as it's completely unfair.

Again, this forum has been so helpful! Thank you in advance for the awesome support I already know I'll get!

Coupon-mad

Your credit file will be cleared & updated very soon, as the set aside has wiped it. Glad to hear we helped to achieve this success!

will put a defence together, using similar defence set ups that I have looked at already on here. If i post it on here then will it be ok to receive some support please?

Of course.

Hope that CEL do not respond to the defence or pay court fee and there is no second hearing! Then it will be cancelled? I am hoping for this.

Happens quite a lot but if so, in a way that's a shame, as CEL are beatable at hearings and by discontinuing they often then get away with leaving the victim out of pocket by the £255 set aside fee and their travel & loss of salary/leave for the set aside hearing.

Unless the Judge said 'costs are reserved' (i.e. held in abeyance and ready to be ordered against the other party...)?

Do you mean your car was left in that doctors/pub car park for days while you were rushed to hospital and that the allegation was 'overstay' for days, before someone else removed the car?

StickItToTheMan

Do you mean your car was left in that doctors/pub car park for days while you were rushed to hospital and that the allegation was 'overstay' for days, before someone else removed the car?

No, I was only in the car park from 10:14 - 10:47 during my appointment and there were only 2 ways to pay:
1. A phone number to call which I did and it just rang off
2. Pay in the pub which wasn't open until 11am

The judge didn't say 'costs are reserved' so does that mean we can claim costs from CEL?

We have requested a SAR from the parking company but are awaiting a response.

Thank you again for your help!

Coupon-mad

The judge didn't say 'costs are reserved' so does that mean we can claim costs from CEL?

It would have been better if he/she had, as you could then definitely claim them when CEL likely discontinue.

StickItToTheMan

So I have written the defence (in between buying a house and teaching ahh) and I did find it quite difficult because I have never received anything from CEL to ever tell me I had a Parking Charge in the first place.
I think I am on the right lines though...I hope!
I would be so grateful for any support with this and THANK YOU in advance!

Do I also just send it back to my local court that I went to for the set aside and not to Northampton? And is it best to send everything by recorded delivery to CEL and the Court?

In the County Court

Claim No: XXXXXXX

Between:

CIVIL ENFORCEMENT LTD

And

THE DEFENDANT


Defence

1. The defendant denies that the claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration EXXXXX, of which the defendant is the registered keeper, was parked on the material date XXXXX at The Black Lion Pub.

3. The order to the claim be dismissed due to the following reasons;
a. No notice to driver was affixed to the vehicle on the material date.
b. Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 as no notice to keeper was issued to the defendant.
c. Claimant did not issue evidence to the defendant relating to the alleged contravention.
d. Claimant has no evidence of landowner authority or a legal contract, in contravention to the BPA Code of Practice and established legal precedents.
e. Due to the lack of communication the defendant was not aware of any breach of contract, contractual liability, or trespass.

4. Claimant’s conduct has denied Defendant the opportunity to dispute or appeal alleged contravention as no pre-action dialogue was received. In fact, until the defendant had herself pursued the Credit Agencies to identify the CCJ on Defendant, she had no idea the cause of action being pursued or the evidence being relied upon, which resulted in her having to defend the claim on all fronts.

5. Had Claimant complied, all Defendants points could have been outlined prior to court proceedings and issues before the court today could have been disposed of or narrowed.

6. The Protection of Freedoms Act 2012, Schedule 4, at section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100 as can be seen in the signage in the car park. The claim includes 349.00, which appears to be an attempt at double recovery.


7. The Claimant is put to strict proof that it has incurred legal representation cost specifically related to this claim, for which a £50 cost has been included in the claim.

8. In summary, it is the defendant’s position that as the Notice to Keeper was not issued then it is invalid and this claim does not meet the legal requirements, the claim discloses no cause of action, is without merit and has no real prospect of success. Accordingly the court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

StickItToTheMan

I have also written the below to add to the defence as the background. Is this sufficient/too much information?

Thank you again so much for all your help!

The vehicle ???? ??? was parked in the Black Lion Pub Car Park on ??/??/????. The phone number displayed on the parking signs sounded a ‘number unobtainable’ tone and the call did not connect.
The other way to obtain a parking permit was to go to the bar in the Black Lion Pub, which did not open until 11:00hrs. The parking infraction occurred between 10:14 and 10:47. Having been advised to go directly to hospital with suspected meningitis, obtaining a parking permit was not attempted again.

No ticket was affixed to the car and no subsequent claim was received at the cars registered address. Even though the registered keeper moved house 6 months later, the car was registered at the new address and post was forwarded through the Postal Service for a further 6 months following the move.

No communication was received from CEL Ltd at any time through this process.

The CCJ was first identified upon application for a mortgage. CCBC was contacted on 16/09/2018 to provide information on the particulars of the claim which they provided highlighting that CEL Ltd had issued the CCJ for a parking infringement on 07/06/2017 time 10:14 – 10:47.

A set aside was then applied for and the judge ruled that the parking company should have been able to find the address to issue the ticket and subsequent fines and therefore would set aside the CCJ on 01/05/2019.

A picture of the signage in the carpark was taken and at no point in the T&C’s displayed that damages will be charged. Parking fine displayed £100 but DEBT + DAMAGES CLAIMED THE SUM OF 236.00. Final judgement amount £349.51.

The_Deep

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. 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, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but 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.

Coupon-mad

Do I also just send it back to my local court that I went to for the set aside and not to Northampton?

You send it to your local court, as the Judge said this:

The judge laughed about some of the outdated information in my witness statement that was 'taken from the internet' but agreed to set it aside as long as I file a defence before May 29th in preparation for a second hearing.

He/she is misinformed or outdated themselves, IMHO. You had no outdated info (unless you tried to argue ''no loss'' and hadn't done your homework by reading and fully distinguishing your case from ParkingEye Ltd v Beavis [2015] UKSC 67!).

And is it best to send everything by recorded delivery to CEL and the Court?

Never use 'signed for' post for either of them!

PPCs might refuse to sign and leave it at the Post Office, and courts might not sign, and then all you get is tracked proof of NON DELIVERY. Especially if posting on a Friday, given that neither place are open on a Saturday and next Monday is a Bank Holiday...

You can email your defence & below enclosures to CEL (search the forum for CEL email).

And you should post your defence FTAO the named Judge, 1st class, taking the envelope to the local PO and asking for a FREE certificate of posting (a little receipt) and keep it stapled to your copy of the defence that you keep in a file in case this proceeds to a hearing of the case (it might not; CEL might discontinue).

I would ALSO include:

(a) your costs schedule so far (including the £255 and any loss of leave/salary and/or travel for the first hearing) making it clear that the attendance losses will be double in the event of a second hearing, and

(b) a signed Directions Questionnaire N180 downloaded from t'internet, giving the dates you are NOT AVAILABLE for a hearing, as you are a teacher, and

(c) a covering letter to both CEL & the court, stating that your Defence is attached by order of DJ xxxxxxx but that as the registered keeper of this car, you have never seen the Particulars of Claim, nor anything explaining the basis of claim (POFA 2012 'keeper liability' being relied upon or not?) nor any evidence/photos/contract that was alleged to have been broken, and as such you respectfully ask the court for the following

(enclosure d!) Draft Order:

{DRAFT} GENERAL FORM OF JUDGMENT OR ORDER

IN THE COUNTY COURT AT: ***local court***

CLAIM No: XXXXXXX

CIVIL ENFORCEMENT LIMITED (Claimant)
And
Mr ********************* (Defendant)

A. Upon receiving (as requested, before 29th May 2019) and having read the defence, costs schedule, N180 and covering letter from the Defendant, and

B. Having heard the Defendant's oral account in person at the set aside hearing on 1st May 2019 confirming that he has never received a single piece of paper relating to this alleged parking event, and

C. Having noted that the Claimant did not attend the set aside hearing and having found as fact at that hearing, that the particulars of claim were not served at the Defendant's current address where the vehicle in question is registered,

IT IS ORDERED THAT:

1. The default judgement dated on ****** be set aside.

2. The Defendant's costs from the 1st May hearing be reserved.

3. Unless the Claimant:
(a) pays a hearing fee of £25 and
(b) serves a copy of the N1 claim form and full Particulars of Claim - including the 'relevant contract' and/or 'relevant obligation' and 'Notice to Keeper' and whether the Claimant is able to rely upon alleged 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012 - on the Defendant by 4pm following 14 days after the date on which the judgement is set aside;
then paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's reserved costs summarily assessed at the sums set out in the Defendant's Costs Schedule, and the claim shall be struck out as having no prospect of success, pursuant to CPR 3.4.

4. If the Claimant files and serves full Particulars and their basis of claim and basis of alleged liability, and pays to the court the hearing fee as directed in paragraph 3, both parties shall duly file and serve all Witness Statements and evidence upon which they intend to rely, by 4pm on xx/xx/19.

5. The court shall then write to both parties with the next available hearing date, paying regard to the fact that the Defendant is employed as a teacher and taking into account his dates of non-availability as set out in his N180 Directions Questionnaire.

6. Should the Claimant discontinue the Claim after the default judgment is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's reserved costs summarily assessed at the sums set out in his Costs Schedule.

7. Because this order was made without a hearing, the parties have the right to apply to have the order set aside, varied or stayed. A party making such application must send or deliver the application to the court (together with any appropriate fee) to arrive within 7 days of service of this Order.

StickItToTheMan

I'll put this all together today and then shall I repost or do you think that is good to go?!

Thank you so much for this support and help. I wouldn't be able to any of this without the support of this forum and all of you amazing people!

StickItToTheMan

7. Because this order was made without a hearing, the parties have the right to apply to have the order set aside, varied or stayed. A party making such application must send or deliver the application to the court (together with any appropriate fee) to arrive within 7 days of service of this Order.

I've read this bit a few times and I dunno if I'm just being dense but I don't understand it.

I did have a hearing for the set aside on 1st May which the judge agreed to set aside but on the condition that I send the defence by 29/05/19. I did miss the first hearing over a year ago (April 2018) because I knew nothing about the alleged contravention.

What order was made without hearing?

Also, I didn't lose any pay for the day but I can work out a notional salary as a Leave of Absence may not be granted again for the next hearing.

Thank you again!

Coupon-mad

I've read this bit a few times and I dunno if I'm just being dense but I don't understand it.

It's standard court-speak, but you can remove #7 as you did have a hearing.