Need help with CCJ set aside

JohnnyWelsh

By!JohnnyWelsh20th May 19, 11:53 AM

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Help needed with CCJ set aside

I noticed a CCJ on my credit report over the weekend. I rang the county court business centre and apparently if was for a PCN issued last June in a hospital car park by CEL.

The date of the incident was 8th June but I moved out of the area on 9th June after having been made homeless following my marriage breakdown. The PCN was sent to my old address so I never received it. The DVLA was notified of my new address within 4 weeks of moving.

I don't know if I have grounds for a set aside but I'd like to try. I've downloaded the N245 form. Any advice or experiences would be most appreciated.

Coupon-mad

N244 form.

And then just copy what all the other set aside threads here have done in 2019, it always works as long as you have evidence to satisfy the Judge that you didn't receive the claim and were there to be found if they'd bothered to trace you, and that you have reasonable prospects of defending the claim.

There is at least one other set aside thread replied on here today, and loads every week. All showing the WS and Draft Order we recommend you attach to the WS. Maybe you also qualify for help with court fees (Google it to check before you shell out £255 in court fees).

Also send a SAR today, to CEL's DPO by email (see post #2 of the NEWBIES thread).

JohnnyWelsh

Thank you very much. Is there any guidance on how to complete the n244?

Do I need to attach a draft order?

Coupon-mad

Yes, as I said, this is on all the other set aside threads:

There is at least one other set aside thread replied on here today, and loads every week. All showing the WS and Draft Order we recommend

You only need to search the forum for set aside draft order and change the ADVANCED search to 'SHOW POSTS' not threads.

JohnnyWelsh

______________________________________________
1. I am XXXX and I am the defendant in this matter. This is my supporting statement to my application dated 2 May 2019 requesting to:
a. Set aside the default judgement dated 10th April 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 Judgement

2.1 I understand that the claimant obtained a default judgment against me as the defendant on 10th April 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 was informed by a financial advisor who is assisting me with the purchase of my first home on the 19th of May 2019.

2.2 On learning of the County Court Judgement on 19th May 2019, I immediately contacted Northampton 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 judgement was regarding a parking charge notice. On 20th May 2019 I received details of the judgement from Northampton County Court. All attempts to reach the Claimant telephone or email have proved unsuccessful, hence I still do not have any evidence of details of the alleged incident other that what was made available by the court.

2.3 I understand that the judgment was served at an OLD ADDRESS (XXXX). However, I moved to a new address (XXXX) 9th June, 2018 with my tenancy at the old address ending on 9th June, 2018 after having been made homeless alongside 3 children. In support of this I can provide confirmation of the end of tenancy at this old address and details from Cardiff Council showing my updated details for the purposes of paying Council Tax as well as a rent statement for the address I moved to. See EVIDENCE A, B, C.

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, the Car was sold at the end of June 2018 before I had a chance to change the registration details. This serves as further evidence that I acted in good faith and have not attempted to avoid any debt or contact. I have since moved to XXX on 16 February, 2019and again, all my details were changed accordingly.

2.6 I suggest the claimant did not make reasonable enquiries as to my current address XXXX or my preceding address XXXX 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 for my current car, driving licence and HMRC records were registered at my current address. I am also on the Electoral Roll for my new address as well as my previous addresses 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.

2.7 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."

2.8. 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.

2.9. 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 was the Registered Keeper was driven on the day of the alleged incident by at least 2 other individuals who were assisting with the moving process. 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 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.

3.5. 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.

3.6. 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:
Signed: ______________________

JohnnyWelsh

I've now filled in the N244 and collated some evidence. I sent an SAR to CEL yesterday via email but they didn't respond. I've tried their number which is an @'0871' number but no one is answering. I'm going to put an SAR letter in the post today and attach it to an email to them. Do I need to wait 7 days for them to respond or can I send N244 form and statement today?

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.

Le_Kirk

Companies have 30 days to respond to a SAR.

JohnnyWelsh

Okay. So do I wait for their response before sending the N244?

Umkomaas

A set aside must be applied for almost immediately on discovery of the CCJ. Waiting 30 days for the SAR response before applying for the set aside is unlikely to impress a Judge. Don't risk it.

Coupon-mad

I've tried their number which is an @'0871' number but no one is answering.

And please stop ringing them.

You seem to have missed the six point draft order everyone else does (a separate sheet with blank dates and wording you want the Judge to use).