Set aside a CCJ from Civil Enforcement

Le_Kirk

I think you leave the dates (in the six-point draft order) blank for the court to fill in.

ast8346

Quentin wrote: »

If you contacted the Court in February as stated in the ws (,news to us!), they will have a record of this!

See #7 regarding lying to the judge

Yes, of course. I had to contact the Court somehow in order to obtain the N244 form, also find out who the Claimant is. I have recovered the original PCN, but not the Claim itself or any other court papers, so this wasn't certain until I spoke to the Court on the phone. There's a bit about it in post #6, but perhaps I should clarify this in the original post too.

Coupon-mad

the Claimant has not attempted to reach the DVLA again at a later date to make sure

They can't. Not allowed.

You should be saying the Claimant, having received no replies to letters, made no attempt to trace the Defendant and this repeated conduct by this particular Claimant is so common that they are one of the reasons why (then talk about Sir Oliver Heald's CCJ reform which singled out parking firms as responsible for unfair secret CCJs like this).

Search the forum to find that used before.

You should not have July dates in the draft order. They are meant to be left blank for the Judge to put in as he/she sees fit.

In the N244 box just put sentences about the claim not being served.

I think you need a timeline to set out what you have done since January to try to resolve and find out about this secret CCJ, yet you still have never seen a copy of the claim form despite your best efforts and so have decided to act promptly to set the CCJ aside despite the silence from the Claimant in furnishing you with any data.

Did you send a SAR to CEL yet? You need to. BUT NO MORE DELAYING the N244!

ast8346

Thanks everyone! Here's the final version, I'm going to drop it off to the local Court now. If you spot something, please let me know ASAP!



[FONT=&quot]DRAFT ORDER

IN THE COUNTY COURT AT: xxxx

CIVIL ENFORCEMENT LIMITED (Claimant)

And

xxxx (Defendant)

CLAIM No:

IT IS ORDERED that:

1.1. The default judgment case number xxxx issued on __/__/____ be set aside.

1.2. Costs to be reserved.

1.3. Unless the Claimant serves a copy of the claim form on the Defendant by 4pm on __/__/____ 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.

1.4. If the Claimant serves the claim form as directed in paragraph 1.3 the Defendant shall file and serve a defence by 4pm on __/__/____.

1.5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 1.2 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.

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

WITNESS STATEMENT

2.1. I am xxxx and I am the defendant in this matter. This is my supporting statement to my application dated __/__/____ requesting to:

a. Set aside the default judgment case number xxxx issued on __/__/____ as it was defectively served using an old 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 dismissed.[/FONT]

[FONT=&quot]2.2. I have become aware of the County Court Judgement in January 2019 through a credit score report from Experian agency. Immediately upon discovering that, I have first contacted the Northampton County Court Business Centre to request the details of the County Court Judgement case number xxxx and the details of the Claimant. I was not aware of the identity of the Claimant nor of the subject of the claim prior to that. The Court’s representative explained to me that the Claimant’s name is Civil Enforcement Limited and the subject of the claim is a Parking Charge Notice (PCN) served at the address xxxx. Following this, I have written a subject access request letter to the Claimant. The Claimant has not responded and on 07 February 2019 I have requested the N244 form from the Court. [/FONT]

[FONT=&quot]2.3. Unfortunately I was unable to complete the N244 form immediately upon receiving it due to worsening condition of my health. I am suffering from the Irritable Bowel Syndrome which makes it difficult for me to focus on my work and studies and affects my ability to respond to events with due urgency. It has also caused me mental health issues such as prolonged depression which means that it is often hard for me to maintain a clear state of mind and focus throughout a working week. Upon request, I can provide a record of taking consulting services with the registered dietitian xxxx via receipts and email correspondence. For this reason, I have only been able to complete the form at the present time. [/FONT]

[FONT=&quot]2.4. In May 2019 I was able to recover the original PCN number xx issued on __/__/____ from the mail box at xxxx. No other letters were found at the property, so I presume them to be either lost or returned back to the post office. I have immediately noted that the PCN contains a spelling error in my surname. It is written as “xxxx” rather than “xxxx” which is how it is written in all my official documentation including the DVLA records. I have also noted that the PCN contains no evidence of any form to support the charge. Following this discovery, I have attempted to reach out to the Claimant again via a phone call. I have requested to appeal the PCN, but my request has been denied by the Claimant’s representative with the reason given that the PCN has been issued too long ago. I have informed the Claimant that I intend to submit the N244 form to the Court and request the judgement be set aside. The Claimant’s representative appeared to agree with me that this is the correct course of action, but offered no assistance in withdrawing this case. [/FONT]

[FONT=&quot]2.5. At the time of writing I have still not received any written correspondence from the Claimant nor have I been contacted by the Claimant by any other means. Also at the time of writing I have never seen a copy of the claim form despite my best efforts and so have decided to act promptly to set the CCJ aside despite not being able to receive any requested information from the Claimant.

DEFAULT JUDGMENT

3.1. I understand that the Claimant has obtained a default judgment case number xxxx against me on __/__/____. However, it was not served at the address where I resided at the time (xxxx), therefore I was not aware of the county court judgment until January 2019 when I have first found out about it though a credit score report from Experian agency. I understand that this claim was served based on the PCN NO: xxxx issued on 27/10/2017. However, I have moved to the above address on 22/10/2017 which can be proved by the signed lodger agreement enclosed with this statement. Following the conversation that I had with the Claimant’s representative over a phone call I was made aware that the PCN has been issued to the address provided to the Claimant by the DVLA (xxxx). However, at the time when the PCN has been issued I had not had sufficient time to update my address details with the DVLA and the Claimant, having received no replies to letters, made no attempt to trace me. This repeated conduct is common for this particular Claimant, and 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. 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 old address”. 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.

3.2. Prior January 2019 I have not received any correspondence from the Claimant, therefore I was not able to challenge the original charge nor the judgment. When I explained to the Claimant’s representative during our phone conversation that I would like to challenge the original PCN, my request has been refused with the reason given that the PCN has been issued too long ago.

3.3. I have at no time tried to avoid paying for any known debt, and was at all times there to be found by a simple trace. It is submitted that the Claimant should have taken those reasonable steps, and would have known or should have surmised that it was likely that I was not at the old address, given the length of time from the alleged parking charge and the fact that the Claimant was receiving no reply from the Defendant.

3.4. I suggest the Claimant did not make reasonable enquiries as to my current address before perusing the court order, considering they received no response from me to their correspondence this should have been a clear indication of the obsolescence of the address xxxx.

3.5. Considering the above I was unable to defend this claim. Therefore, I believe that the default judgment against me was irregular and I respectfully request it is set aside.

ORDER DISMISSING THE CLAIM

4.1. I further believe 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.

[/FONT]
[FONT=&quot]4.2. 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. I dispute this charge 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 have come into force.

4.3. If the Claimant can evidence that the alleged incident relates to the vehicle for which I was the registered keeper at the time of issue of the PCN, 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. 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 registered keeper of the vehicle automatically liable.

4.4. 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 I have not received any documentation prior January 2019 I submit the Claimant has not complied with the requirements of the Act and thus cannot claim this charge against me as the registered keeper in any case.[/FONT]

[FONT=&quot]4.5. 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. I have no recollection of the driver of the vehicle at the time of this incident. The vehicle in question (xxxx) was at the time insured to be driven by two adults. I submit that the Claimant cannot provide such evidence of the identity of the driver.[/FONT]

[FONT=&quot]4.6. I submit that this is not a penalty charge notice but a private one based on contract law and therefore the Claimant must:[/FONT]

[FONT=&quot]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[/FONT]
[FONT=&quot]b) set out the facts on which it is asserted that the claimant has a cause of action against this defendant, and[/FONT]
[FONT=&quot]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[/FONT]
[FONT=&quot]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)[/FONT]
[FONT=&quot]e) disclose full particulars and a contract, in order to evidence a claim in law[/FONT]
[FONT=&quot]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 £346 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).

4.7. I further submit 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.

d. 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. Therefore, there is no consideration from the driver to Civil Enforcement Ltd.

4.8. 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, the Defendant asks 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, plus a compensation for the amount of hours it has taken the Defendant to prepare for and attend this hearing at a rate of £19 per hour.[/FONT]

[FONT=&quot]4.9. If required to defend at a further hearing, the Defendant 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.

[/FONT]


[FONT=&quot]
Statement of Truth:
I believe that the facts stated in this Witness Statement are true. [/FONT]


[FONT=&quot]__/__/____[/FONT][FONT=&quot]xxxx[/FONT]

Le_Kirk

3.4. I suggest the Claimant did not make reasonable enquiries as to my current address before perusing the court order

Should it be: -

3.4. I suggest the Claimant did not make reasonable enquiries as to my current address before [strike]perusing[/strike] pursuing the court order

ast8346

Le_Kirk wrote: »

Should it be: -

Thanks!




I have submitted the case to the local Court now. Fingers crossed everything goes well.

Should I start thinking about my defence or not yet?

Le_Kirk

I believe the usual advice is to have a defence ready for the court appearance in the case the judge requests sight of it.

ast8346

To be fair the only valid defence statement that I've got is that the accident took place too long ago and it's impossible to identify who was the driver, since two adults were indeed insured to drive this car. I can dig out the old insurance policy document to support that.

If that works, does anyone have an idea for a defence template based on this statement? Perhaps from another case. I would really appreciate that.

Other than that I can only think of visiting the Currys store and asking them if they can share some documents or suggest anything that would help me =\

Le_Kirk

the accident took place too long ago ????????????

ast8346

Le_Kirk wrote: »

the accident took place too long ago ????????????

I meant incident, sorry :facepalm
PCN in other words
ps. I'm stressed out and exhausted by this already. No wonders I couldn't find strength to deal with this earlier...