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Parking ticket now a ccj advice please

edited 30 November -1 at 1:00AM in Parking Tickets, Fines & Parking
32 replies 1.1K views
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  • CrebagCrebag Forumite
    16 posts
    Sorry for being a pain C-M I know it must be frustrating having to point us newbies in the right direction all the time, I really, really appreciate your help. I think ive found it now? (please god) lol

    DRAFT ORDER

    IN THE COUNTY COURT AT: xxxxxx

    CIVIL ENFORCEMENT LIMITED (Claimant)

    And

    MR ---- (Defendant)

    CLAIM No: ---

    IT IS ORDERED that:

    1. The default judgment dated -01/04/201 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 on XX/XX/2019.

    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 plus the Defendant's costs for attending and preparing for the hearing.

    6. All enforcement be put on hold pending the outcome of the application.

    WITNESS STATEMENT

    7. I am
    and I am the defendant in this matter. This is my supporting statement to my application dated --/05/2019 requesting to:

    a. Set aside the default judgment dated 01/04/2019 as no correspondence was received and I was not the driver on the day of the alleged offence

    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 dismissed on the basis that the Defendant has a reasonable defence, or to be re-heard at a new hearing.

    1 SET ASIDE DEFAULT JUDGMENT

    1.1. I was the registered keeper of the vehicle at the time of the alleged offence. The claim apparently relates to an alleged debt arising from parking in a private car park.

    1.3. I understand that the claimant obtained a default judgment against me as the Defendant on --1/04/2019. However, the claim form was not served at the Defendant’s current address and was never received.

    .

    1.4 The Defendant not aware of the default judgment until 14/05/19 when they were informed of something on their credit report as part of mortgage checks for renewing their mortgage. On further investigation the Defendant found a CCJ on their credit record from County Court Business Centre. On telephoning the County Court Business Centre for further information, the Defendant was informed that this CCJ related to a parking charge for a private car park, issued by Vehicle control services ltd (the Claimant) for an alleged contravention on --/03/2018.



    1.5. On 14/05/19 the Defendant contacted the Court a second time to request further details of the Default Judgement. The Particulars of Claim only give ‘Claim for monies relating to a parking charge for parking in a private car park managed by the Claimant in breach of the terms and conditions’ as the reason for the Claim. In support, details the court had emailed to the Defendant have been provided. (Annex C)

    1.6. The Defendant has never received any previous correspondence from the Claimant in this matter, therefore they were never able to challenge the original charge nor the judgment. Further, the Defendant puts the Claimant to strict proof that they did post such communications to the Defendant’s address.



    1.7 Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016 (Annex D). The Right Honourable Sir Oliver Heald QC MP on 23 December 2016 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. The Minister added:

    "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That 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 address.”


    .

    . A further reason to set aside the claim is that if the claim form was received and the Defendant was given sufficient details about the claim against them, it was more likely than not that the Defendant would have defended the claim and/or satisfied the outstanding debt, however the Defendant was not given this chance. In the Court of Appeal case Godwin v Swindon Borough Council [2001] EWCA Civ 1478 LJ May said the following:
    “Rule 13.3 (1) (b) has a disjunctive alternative, so that the court may set aside or vary judgement entered in default if it appears to the court that there is some other good reason why the judgement should be set aside or varied or the Defendant should be allowed to defend the claim. In my view, this is plainly extendable to circumstances where the Defendant has not received the claim form and particulars of claim before judgement was entered against him. It is not an absolute right, but does not have to depend on the Defendant having a real prospect of successfully defending the claim. The Court therefore has sufficient power to do justice in these cases and will, no doubt, normally exercise this discretion in favour of a Defendant who establishes that he had no knowledge of the claim before judgement in default was entered unless it is pointless to do so. The Defendant, for instance, may justifiably want to have the judgment set aside on the basis that, had he known about the claim, he would have satisfied it immediately without having an embarrassing judgement recorded against him.”

    1.15. In summary, the Defendant has acted promptly when they found out about the judgement. The Defendant has explained why they did not respond to the claim issued. The Defendant believes that service of the claim form was invalid, and that there is also a real prospect of defending the claim (please see paragraphs 2.1-2.9 below). The prejudice The Defendant would suffer by not being allowed to defend this claim greatly exceeds the prejudice to the Claimant if the judgement is set aside. For these reasons, the Defendant respectfully asks the Court to set aside the judgement under CPR part 13.

    2. ORDER DISMISSING THE CLAIM

    2.1 The Defendant believes that the original parking charge notice has no merit and should thus be dismissed. The Claimant is a parking company which seeks to claim for parking charge notices which the Claimant believes are due as a result of an alleged breach of contract for parking by a driver.

    2.2. The Claimant has obtained details of the vehicle for which the Defendant was the registered keeper and used those details to raise a parking charge notice. The Defendant disputes this charge in its entirety as the Defendant does not know the wording of the contract nor do they know the means by which the contract was alleged to have come into force.

    2.3. If the Claimant can evidence that the alleged incident relates to the vehicle ---- any notice to keeper issued by the claimant must comply with Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. The Defendant submits that the Claimant cannot provide such evidence and further submits that the parking charge notice issued by the Claimant is not PoFA 2012 compliant, and therefore the Claimant cannot hold the registered keeper of the vehicle automatically liable.

    2.4. A requirement of the Protection of Freedoms Act 2012 is that any notice to keeper must be served within 14 days of the date of the alleged incident. Since the Defendant has not received any documentation, the Defendant submits the Claimant has not complied with the requirements of the Act and thus cannot claim this charge against the Defendant as the registered keeper.

    2.5 . Furthermore, as the alleged contravention occurred almost a year ago, the Defendant is unable to confirm or deny visiting the stated car park on the specified date, nor confirm the driver (there was more than one person insured to drive the vehicle ----). The Defendant is therefore unable to name the driver, as well as being under no obligation in law as keeper to do so. This was confirmed by the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that the registered keeper can only be held liable under the PoFA Schedule 4 and not by presumption or any other legal argument.

    2.6. The Defendant further submits that the parking charge notice is without merit due to substantial issues in law. This is for the following reasons:

    a. Lack of Standing by Claimant: The Claimant is not 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 standi to litigate in their own name. Any consideration will have been provided by the landholder and only they would have been able claim for any damages or trespass.

    b. No Contract with the Claimant: Any contract must have offer, acceptance, and consideration both ways. There would not have been consideration from the Claimant to the driver; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the driver to Civil Enforcement Ltd.

    2.7. In order to make informed decisions and statements in defence as former keeper of the vehicle, the Defendant will require copies of all paperwork and pictures of all signs from the Claimant. These have been requested on 15/05/19 via email, but as yet the Defendant has not had a reply or any acknowledgement of this correspondence.



    2.8. On this basis the Defendant believes that the claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

    Statement of Truth:

    I believe that the facts stated in this Witness Statement are true.
    Full name: ---
    Dated 10/05/19
    Signed
  • Coupon-madCoupon-mad Forumite
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    Boom!

    That's the right format, yes. Albeit the DRAFT ORDER should be on a separate sheet of paper IMHO or it looks unclear as to what it is. Hope you understand to leave these dates (day & month) blank, for the Judge to put in:
    XX/XX/2019.

    I haven't checked it for relevance, that's for you to do (i.e. change the facts to suit, about why you didn't get to see the N1 claim).

    And change the date at the bottom to be the actual date you sign it.
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  • edited 16 May 2019 at 6:26PM
    CrebagCrebag Forumite
    16 posts
    edited 16 May 2019 at 6:26PM
    Brill, thanks so for that, so should I leave ALL dates blank including date I noticed ccj etc? I will print Draft order separate, your 24kt mate. Appreciate the time you spend answering me. One last thing, where should the completed N244 forms and WS/DO be sent to?
  • Coupon-madCoupon-mad Forumite
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    so should I leave ALL dates blank including date I noticed ccj etc?
    Obviously not. I wasn't talking about your WS.

    Think about what a Draft Order is...what is its intention, as far as you can see?
    where should the completed N244 forms and WS/DO be sent to?
    Your nearest court that hears small claims.
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  • CrebagCrebag Forumite
    16 posts
    As I see it The draft order is the outcome which is preferred by the defendant? My main concern is just asking for the CCJ to be Set aside, is it not pushing it a bit asking for money from them (vcs)?
  • Coupon-madCoupon-mad Forumite
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    is it not pushing it a bit asking for money from them (vcs)?
    No!

    The fact is, VCS have ruined the credit rating of a person who wasn't the driver, and who cannot be held liable in law at all, and VCS have not complied with the POFA requirements to hold you liable.

    Have you found out:

    - the claim number (surely you need that for the set aside application?)

    and

    -the reason for this PCN?

    and

    - the car park involved? We need to know that to help you know what the defence position is.
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  • CrebagCrebag Forumite
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    I have the claim number, The car park involved was The Lowry Salford Quays ran by VCS, the signage says "No Parking Loading/Unloading only".
    "BY entering this private land you are entering into a contract with Vehicle control services ltd. Do not remain on this land unless you fully understand and fully agree to the contractual terms and conds. stated on this sign, if you breah the T&C you agree to pay the parking charge stated below"
    It also states CCTV/ANPR is in use so surely if they have this then that's there proof a female was driving? .

    I will ring the court and ask about reason for PCN in the morning.
  • Coupon-madCoupon-mad Forumite
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    It also states CCTV/ANPR is in use so surely if they have this then that's there proof a female was driving? .
    Nope, because VCS don't use CCTV, and ANPR is what it says on the tin - number plate recognition, not facial recognition, but it might just about show the driver was female.

    This is the third parking firm you've mentioned on this thread and only one is right:
    CIVIL ENFORCEMENT LIMITED (Claimant)

    Spend the weekend checking the details, no rushing to submit it tomorrow.

    Do it on Monday once you feel fully informed from your research. For a start you need to remove a lot of words that make no sense for your case, given that the PCN & the subsequent claim N1 wasn't sent to the wrong address, was it?:
    1.7 Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016 (Annex D). The Right Honourable Sir Oliver Heald QC MP on 23 December 2016 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. The Minister added:

    "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That 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 address.”
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  • edited 17 May 2019 at 11:21AM
    CrebagCrebag Forumite
    16 posts
    edited 17 May 2019 at 11:21AM
    Yes I know theres a few mistakes as it was a copy and paste job in the main, I will edit it carefully and run it by you over the weekend if that's ok.
    The firm is definitely VCS. I feel the reason I'm rushing is the fact I read the quicker you apply for set aside the better it looks. But your right I will go through it with a tooth comb, get it right 1st time round. What in your experience are the chances of winning this case?

    Spoke with courts today, Reason the courts said they have was simply a "parking contravention at turning circle/taxi drop Salford quays" 2018.
    .
  • Coupon-madCoupon-mad Forumite
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    Next week is fine, easily prompt enough to do the N244!

    We never see set asides lost on this parking forum, but your situation is different as you are not saying they served it to the wrong address. So your hardest job is to satisfy the Judge that the upheaval at your house was so significant and post was completely lost (post box stolen, I think you said?) that this had the same effect as if the N1 claim was never posted to you at all, and you would certainly have defended the case, not ignored it, had a Claim been properly served, not least because VCS admit their PCNs do not use POFA wording and they simply try to rely on a dodgy and unlawful assumption that a keeper was the driver.

    Read Excel v Smith (on appeal, as the first Judge misapplied the law) and have that case in mind as one to use as later defence evidence, as it's an appeal case that explains why a parking firm can't make any lawful presumption and nor can they use the 'law of agency' against a consumer and somehow say your gf was driving the car 'as your agent'!

    Read that appeal case - it's linked by the Parking Prankster in his case law pages. And Excel and VCS are sister companies owned by the same fat cat ex ''Captain Clampit'' so VCS can't say they don't know they can't presume a keeper's liability!

    https://www.dailymail.co.uk/news/article-2713705/The-parking-ticket-fat-cats-one-s-chum-Prezza-two-drive-Aston-Martins-Meet-men-ve-millions-motorists-misery.html

    That's the guy who signed the claim form you never got. He doesn't need your hard-earned, and has no right to ruin your credit rating.
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