No Summons but Judgement ordered

Lynxy

Ok, so I called and the Judge was away that day so he didnt get a chance to look at it. They told me to call back in Friday but I will call again today.

Lynxy

Bad news I am afraid.
They will not consider the correspondence as I did not attend the hearing and I need to apply for a set aside.

I asked if I could appeal the judgement amount as it the cost are greater than the original fine of single £60/£100 PCN and mentioned the Beavis case and POFA and the proportionality rules in the CPR preclude such made up double recovery. (Thanks to coupon-mad for this info). She said the claimant can request an amount and the judge can accept this.
--Answer was no, appeals can only be heard by attendees and as I did not attend the hearing, I have no right to appeal the amount.

I was told to apply for the set-aside based on the reason that I did not receive the hearing and for it to be considered on that basis.

I also asked if I successfully defend my claim, will the court refund me for the set aside cost - The answer was no, the court does not refund the set aside - but I can request this as a cost against the claimant which if I win, will be awarded.

She said I need to do the set aside ASAP, possibly by Monday and for me to call in first thing with my set aside to be sent via an email.

As you can understand, I am stressing a bit. I will put up the set aside up draft shortly.

Lynxy

I just found this while reading the Civil Procedures:

Part 23:
Application to set aside or vary order made without notice
23.10

(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside(GL) or varied.

(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part23#23.9

I fear I missed the date

waamo

You still have time to apply for a set aside if you act quickly. The court accepts applications made as quickly as practically possible.

Delay and they won't accept it. I think this will hinge on if the court accepts you didn't receive the hearing date.

BrownTrout

How much is the actual claim for again......

Lynxy

Under £500.

Just under £200 for the Judgement for Claimant
And Claimants cost assessed over £250

Quentin

If they told you that if you win your set aside application the £255 cost will be "awarded" to be paid to you by the claimant, then is misleading

If the claimant has done nothing wrong with regard to making the claim then the best you can hope for is that your costs may be paid by the claimant should you win any subsequent hearing of the original claim (or the claimant decides not to pursue you further,)

Lynxy

Quentin wrote: »

If they told you that if you win your set aside application the £255 cost will be "awarded" to be paid to you by the claimant, then is misleading

No, they didnt. They said, if I can defend the claim, I can ask the court fee to be refunded.

waamo

Lynxy wrote: »

No, they didnt. They said, if I can defend the claim, I can ask the court fee to be refunded.

You can ask. The odds of them agreeing aren't great though.

Lynxy

1st Draft:

_____________________________________


WITNESS STATEMENT

______________________________________




I am XXXXXXXXXX and I am the Defendant in this matter.
This my supporting Statement in support of my application dated XXXXXXX to:
· Set aside the Default Judgement dated XXXXX as the court hearing was not sent or misplaced;
· Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
· Order for the original claim to be dismissed.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in XXXXXX. However, the hearing date had not been served at my current address thus I was not aware of the call to court. I was not sent any information regarding a hearing date and it is my belief that there was an omission by the court or postal service, in failing to inform me that a hearing was to take place, which I would certainly have attended. I was awaiting the court's next communication regarding the hearing and directions. I believe the order was premature and I was not given an opportunity to attend a hearing or submit any evidence or my Witness Statement.

The last communication I had received before the Judgement in Default was the Notice of Allocation to the Small Claims track (Hearing) dated 05/11/18.

1.2. On the 03/08/2018 I wrote to XXXXXXX County Court and rejected the Claimants request to have a trial by letter. Please see the attachment and the court clerk confirmed my request for my day in court.

1.3. On the 15/09/2018, XXXXXXX County Court contacted me requesting for a copy of the directions questionnaire as it was misplaced.

1.4 On the 04/10/2018 XXXXXXX County Court contacted me again requesting another copy of the directions questionnaire. This was the second time in the space of few weeks. On this basis, I believe I either did not receive the court hearing date due to court admin error or it was not delivered via postal service.

1.5. On the basis provided above, I believe that refusing the Claimants trial by paper, re-issuing the directions questionnaire twice to XXXXXXX County Court, I remained compliant to the courts requests so I could have my day in court. I would not have fulfilled and obeyed these requests if I was not going to turn up in court.

1.6. Considering the above I 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.



2. Order dismissing the Claim

2.1. I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that 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 motorist.

2.2 The claimant did not not allow the mandatory 'grace period' and only showing evidence of the car there for two minutes (from the gap of time in photos) which is insufficient time to have allowed the driver to have gone upstairs to the flat being visited, and fetch a visitor's permit that cannot possibly have been in the driver's possession on arrival, as such a suitable grace period for permitted authorised visitors to the residents must be allowed.

2.3. If the Claimant has obtained details of the vehicle for which the Defendant is 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.

2.4. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, any Notice to Keeper served by the Claimant would have needed to comply with the requirements of 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. I submit that the Claimant cannot provide such evidence and 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 the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

2.5. A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. 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.

2.6. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.6.1. Lack of Standing by Claimant: The Claimant is unlikely to be 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 sue for any damages or trespass.

2.6.2. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.

2.6.3. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.

2.6.4. 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 motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to [name of claimant].

2.7 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. The claim includes an additional £148.55, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

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

2.9. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

2.9. In order to make informed decisions and statements in my defence as keeper of the a vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.




Statement of Truth:
I believe that the facts stated in this Witness Statement are true.