Setting aside CCJ

Coupon-mad

could it be requested to post the witness statement/draft order here just to see if it's ok and to see what you all think,

Yes, please post it in a reply here, not by editing an older post.

Quinton715

I am XXXXXX and I am the Defendant in this matter.
This my supporting Statement in support of my application dated XXXXX to:
· Set aside the Default Judgement dated XXXXXX 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 until I went to apply for a consumer loan agreement as part of my rewards scheme with my current employer, which was then rejected. I then did a routine check over my credit file to find the Default Judgement in question. I understand that this Claim was served at an OLD ADDRESS; XXXXXXXX. However, I moved to a new address at XXXXXXXXX. In support of this I can provide confirmation from XXXXX City Council, my new and old tenancy agreements and new employment contract showing my updated details for the purposes of this hearing.

1.2. I have 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. At the time the County Court Judgement was issued, I was on the electoral roll at my new address, and was registered at the new address for council tax, banking, bills, my driving license and with the HMRC. As XXXXXXXX had received no correspondence from me at any point and I had not responded to the court summons, I believe they had reasonable cause to question whether they were using an accurate address and that simple searches could have provided them with the correct address.

1.4. In XXXXXX I contacted XXXXXX County Court to find out details of the Default Judgement. The court papers contain limited details of the alleged incident, and XXXXX County Council confirmed the details were collected via ANPR CCTV.

1.5. 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. In conjunction with this I also believe it is unreasonable to justify any such "Parking Charge Notice" when XXXXXX were aware the registered keeper was an employee of this business park and did not instead communicate with the registered keeper to request to re-locate the vehicle to an appropriate car parking space at that given time. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results to unnecessary burden for individuals and the justice system across the country. This is a topical issue: I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” He added: "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."

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. 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.

2.2. I wish to dispute the nature of the "Parking Charge Notice" being issued to begin with on the following grounds; I believe the vehicle was parked in an area of the car park that did not violate the Terms and Conditions of parking which occurred on XXXXXXX. The reason the vehicle was parked in this area was because the registered keeper was employed on this particular business park, in which the employer of the registered keeper stated they owned the buildings within the forecourt, and no such ruling by XXXXXXXX was issued to the employers that parking was prohibited in certain areas of the car park, so therefore such ruling was unbeknown to all parties involved. If XXXXX had such Car Park Terms and Conditions this should of been made aware to their business partners and associates. I would also like to challenge as to why XXXXXX or indeed XXXXXX were fully aware the vehicle in discussion was then still being parked in the exact same car park many months after the Parking Charge Notice was issued and they could evidently see this from the vehicle entering and exiting the car park every day, did not try to investigate why they were not receiving any correspondence from the registered keeper, or take any action to obtain the correct details from the registered keepers' employers to validate the address details. The registered keeper had reason to believe they were in their right to park in that particular section of the car park because XXXXX had not justified it's car parking rules to the registered keepers' employer, the spaces were not being used and none of the Terms and Conditions of right to park were displayed clearly.

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.

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 XXXXXX.

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.
Full name: XXXXXXX

Dated: XXXXXXX

Signed: ________________________________


Let me know what you think, thanks in advance.

Quinton715

Would anyone mind just checking the above just as I need to send it asap. Thank you again.

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/75916480#Comment_75916480

And where is your six point Draft Order, like you see in all other set aside threads?