Another CEL CCJ- Set Aside granted

edited 6 August 2019 at 6:21PM in Parking Tickets, Fines & Parking
10 replies 386 views
KellyWellyWooKellyWellyWoo Forumite
11 Posts
edited 6 August 2019 at 6:21PM in Parking Tickets, Fines & Parking
*updated - set aside granted"

Hi,

Thank you for all your advice and support. The set aside was successful and the original claim was dismissed however, the judge had no interest in the WS and said ‘Alex’ “didn’t have a leg to stand on” because he didn’t update his address with DVLA when he moved. . He prepared a full bundle of evidence showing electoral role, credit checks showing address, insurance which shows two drivers etc and used the defence that he couldn’t defend himself as he knew nothing of the CCJ hearing and no reasonable steps were taken to find him but the judge said legally, he has no grounds to stand on.

However, CEL didn’t turn up and sent a letter to Alex offering a set aside by consent and to dismiss the original claim. It was on this ground the judge granted the set aside and dismissed the claim. At least it’s all over now!





Posting on behalf of somebody I know (we’ll call them Alex) as they don’t have an account. Long story, short;

- Prior to the CCJ Alex has previously had a really good credit rating- never had any credit refused, higher than average score etc.

- Alex found out about the CCJ by doing an Experian/ Noddle credit check a few days ago after a request for a small amount of credit was refused by two providers- one of which was his bank.

- Alex found out the CCJ related to a parking fine in December 2017 by paying to see the judgment date and then contacting the CC Business Centre. however, Alex moved address in March 2017. Alex has not received any correspondence about the parking fine, application for CCJ etc as it was all sent to his old address. The CCJ was made in November 2018 against his old address.

Thanks to all the advice on here he has a good list he’s working through (contacting DVLA, CEL and asking for all correspondence sent etc.) and he is preparing a set aside application/ witness statement as obviously this CCJ has massively impacted his credit report and could affect mortgage renewals etc.

Despite all the above, Alex doesn’t actually dispute the original fine as he was there (just the making of a CCJ when he knew nothing about the original fine- if he had, he would have paid it).

Alex also has evidence from June 2018 that he paid another parking fine for overstaying (which originally went to his old address but they located him at his new address and the fine was paid) so this will be sent as proof. When Alex received this fine, he realised he hadn’t updated his car reg doc (driving license was done immediately) so he then done this.

My question is, on his behalf, should he pay the CCJ amount (which is now £351) and apply for set aside/ reimbursement of set aside only? Or do nothing with the £351 and pursue a set aside/dismissal? All he wants is the CCJ off his credit report and he is obviously disputing the method in which they obtained it (including failure to notify him).

Thank you in advance!

Replies

  • QuentinQuentin Forumite
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    He either pays it off and gets a set aside by consent or gets a set aside then fights the claim (assuming the PPC pursues him with a new claim
  • Coupon-madCoupon-mad
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    Don't try a set aside with consent, with CEL.

    Just do a £255 set aside as per the NEWBIES thread and the other cases you've seen.

    :)
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • That’s great, thank you both. I’ll tell him just to go for the set aside.
  • Coupon-madCoupon-mad
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    OK but tell him how/ to come here to see the WS and SIX POINT ORDER to attach.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • edited 4 June 2019 at 6:48PM
    KellyWellyWooKellyWellyWoo Forumite
    11 Posts
    edited 4 June 2019 at 6:48PM
    Hi,

    Further to my previous thread, please could you have a look at the draft set aside statement my friend, 'Alex' has prepared? He has a couple of queries I've put in red. Thank you very much for all your help- this forum has been a life saver!

    I am XX and I am the Defendant in this matter.

    This my supporting Statement in support of my application dated XX to:
    · Set aside the Default Judgement dated XX as it was not properly served at my current address;
    · 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, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXXXX until I was doing a routine check on my credit file on the 24th May 2019. I understand that this Claim was served at an old address (XX). However, I moved to a new address in March 2017. In support of this I can provide confirmation from X Bank showing my mortgage payments since March 2017 along with a bank statement showing that rent paid to the landlord of my previous address ceased from March 2017.

    1.2. I have also never received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.

    1.3. On X I returned to the United Kingdom after being out of the country on holiday. I contacted the County Court Business Centre to find out details of the Default Judgement on X. The information provided by the County Court Business Centre contain no details of the alleged incident and I do not know what the Default Judgement relates to. - Can he write this? The information from CCBC states “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. Drivers are allowed to park in accordance with the terms and conditions of use ANPR cameras and/or manual patrols are used to monitor vehicles entering and exiting the site. Debt and damages claimed XXX” and details the time he parked and left

    1.4. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

    1.6. 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.

    1.7. 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. 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.

    2.3. 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. - how can he know this without seeing the PCN?

    2.4. 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.

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

    2.5.1. 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.

    2.5.2. 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.

    2.5.3. 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.

    2.5.4. 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 Civil Enforcement Limited.

    2.6. 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.

    2.7. 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.

    He has also compiled a draft order:

    T IS ORDERED that:

    1. The default judgment dated xxxxxxxx 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 xxxxx [what timescale should he put here] 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 15/5/2018

    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 the hearing.

    6. That all enforcement be put on hold pending the outcome of the application
  • Anybody help please? 😊
  • KeithPKeithP Forumite
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    Just looking at your draft order...

    In 3. The date should be left as dd/mm/yyyy - exactly like that. It is for the Judge to decide.

    Similarly for the date in para 4.
  • Coupon-madCoupon-mad
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    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • That’s great- thank you both! I didn’t realise he’d based it off an old template- I’ll get him to review.
  • Bumping for update on first page!
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