Advice on CEL response to CCJ set aside application

benzini86

Hi guys, first time poster hoping for some advice on here.
In short:
Moved house 2015 and did not update DVLA keeper details on vehicle
2017 - park vehicle in ANPR controlled shop car park and forgot to validate my ticket.
2018- CCJ issued for £236 by CEL
May 2019 - I discover the CCJ when applying for a loan.


I have completed my set aside defence and applied to the county court to have the CCJ set aside and a request for the claimant CEL to pay myself £255 as reimbursement for the set aside fee.


Ground for my defence statement are that CEL did not fulfil their duty to use my current address when bringing the claim. I have paperwork from another 'reputable' debt collection company which shows they found my correct address in two days! when trying to locate me for an unrelated fine from DVLA also related to not changing address of vehicle. This shows that CEL made no real effort to locate me using credit checks etc like most companies do. Have also included other points of law that CEL do not follow etc in statement.


I received a letter from CEL yesterday which states :


Without prejudice save as to cost - ref number


We refer to the application to set aside which has been forwarded by county court business centre.


Having considered the contents of your application and the in the interest of both parties saving costs we would be willing to consent to the judgement being set aside in accordance with following terms:


CCJ set aside
Claim dismissed
No order for costs.


Please confirm if you wish to accept our offer.


Need some advice here guys!


From their letter I am taking it to read they will drop the CCJ and the fine imposed on me if I do not continue with the set aside in court and agree to drop my request for costs from them?


I feel that with them writing to me they feel they have a weak case already and it is worth continuing through the court to try and get my costs back!


What are peoples thoughts, never been in this situation before so all advice appreciated.


Thanks Ben

benzini86

This was my set aside statement:


I am .........and I am the Defendant in this matter.
This is my supporting Statement in support of my application dated 08/07/19 to:
· Set aside the Default Judgement dated 22/05/18 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 on 22/05/18. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until 18th February 2019 when I was doing a routine check on my credit file whilst applying for a loan. I understand that this Claim was served at an old address ............... However, I moved to a new address ..................in October 2015. In support of this I can provide confirmation from Gloucester County Council showing my updated details for the purposes of paying Council tax.

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

1.3. On the 18/02/2019 I contacted Northampton County Court to find out details of the Default Judgement. The court papers contain minimal details of the alleged incident.

1.4. On 18/02/2019 I attempted to contact the Claimant using information given to me by Northampton County Court. I was not able to get through to a member of the Claimant’s staff to discuss the incident, as their phone is never answered and constantly rings out. This means as the Defendant, I still do not have any details of the incident the Claimant alleges has taken place, other than the summary of charges now owed, and a basic time date and address for the alleged offence which is shown on the Court papers.

1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s 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.
I can also provide letters and documentation from Advantis Credit, a debt collection agency who were able to locate me within two days at my current address for an unrelated matter. They used publicly accessible credit databases and we resolved the matter quickly as soon as I was aware of it.

1.7. Considering the above I was unable to defend this claim. 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 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, I cannot recall who was driving my vehicle at the time of the alleged offence, my wife was insured on my vehicle and I also occasionally lend my vehicle to friends who are covered by their own insurance. I 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 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. The claimant must 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 over double 'recovery' reaching £251.52 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).
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 Ltd.
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 defense as keeper of the vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.

Quentin

Cel are beatable

So if you accept the offer you are down £255

But if you continue with the set aside and subsequently they withdraw or lose in court you get your £255 paid by them

The_Deep

If they do resurrect their claim they might struggle.

If the validation machine was not prominent judges often regard these BOC claims as a trifling matter. Read this

https://en.wikipedia.org/wiki/De_minimis

Not a real BOC at all.

Indeed, 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.

beamerguy

Hmm, sounds like a gagging order to me

The_Deep

I would invite them to go forth and multiply. (Arkell v Pressdram refers).

Coupon-mad

Ground for my defence statement are that CEL did not fulfil their duty to use my current address when bringing the claim.

That's not grounds for the actual defence. Make sure you know that the Judge will want to be satisfied about two distinct things:

- that you did not receive any claim form

- that you have grounds to defend the actual charge (not the above answer!).

The reply you got is CEL's way of bullying people into paying their £300-odd, plus losing their £255 court fee, because people don't understand that a set aside WITH CONSENT is not the same as what you've already paid for, and their version requires you to pay their stupid inflated claim in full, on top of the court fee (the fee you paid already funds a hearing that you are entitled to!).

They want to get people to breathe a sigh of relief, grab the straw they've offered to wipe the CCJ their way, and end up paying them a stupid sum, and that victims end up over £550 out of pocket.

I bet they make a pretty penny from that template letter from desperate people.

WE want you to end up wiping the CCJ and defending/beating the whole thing, either for £255 tops, or for nothing in the best case scenario if the Judge is persuaded by you to grant the fee against CEL for not bothering to properly trace you, as discussed here:

http://parking-prankster.blogspot.com/2016/12/government-announce-ccj-review-due-to.html

https://www.gov.uk/government/news/new-measures-to-protect-consumers-from-debt-claims

''assess the role of parking companies and examine how drivers are informed of fines''

Show the Judge that PPCs are the cause of a Govt CCJ review. Shocking industry!

You need to print that off and understand why you not updating your DVLA data was silly, but NOTHING compared to CEL's conduct in deliberately not bothering to find you, not even a basic attempt to trace the Defendant was made and they had no reason to conclude you lived there in 2018 after silence since the 2017 PCN a year before.

Can anyone find the DVLA instruction to PPCs that told them they are expected to make an effort to trace a person's address before suing them, or that they can use tracing companies (can't recall what it said but it was from the DVLA)?

legal_magpie

Key question is whether this is a regular judgment. If you didn't notify the DVLA of your move, it almost certainly is which means that even if you succeed in getting the CCJ set aside, you will lose your £255 anyway. The SJA isn't the end of the matter as the company might decide to carry on with the case and you might or might not win. You also have the hassle of having to attend the hearing if you insist on them paying your application fee. So from a purely practical point of view I'd accept it and move on as that CCJ is going to blight you until it's actually set aside.

The_Deep

Key question is whether this is a regular judgment. If you didn't notify the DVLA of your move, it almost certainly is ...

What do you mean "regular hudgement"? this is a default judgement.

which means that even if you succeed in getting the CCJ set aside, you will lose your £255 anyway.

But is it a regular judgement? IMO default judgements served to an old address are not.

The SJA isn't the end of the matter as the company might decide to carry on with the case and you might or might not win.

True but hardly likely, we win most cases we advise on.

So from a purely practical point of view I'd accept it and move on ]

Very poor advice imo, especially from a retired solicitor.

Quentin

legal_magpie wrote: »

Key question is whether this is a regular judgment. If you didn't notify the DVLA of your move, it almost certainly is which means that even if you succeed in getting the CCJ set aside, you will lose your £255 anyway. The SJA isn't the end of the matter as the company might decide to carry on with the case and you might or might not win. You also have the hassle of having to attend the hearing if you insist on them paying your application fee. So from a purely practical point of view I'd accept it and move on as that CCJ is going to blight you until it's actually set aside.

This is very confusing for the OP

1) there's no key question regarding the ccj! It's a default

2) the set aside fee is not automatically "lost" when a set aside is granted.

3) cel aren't guaranteed to continue the claim after the successful set aside - far from it in fact - have you read the wording of their suggested order??

4) see all the reports of posters in the same position on their set aside hearings. Not much hassle mentioned is there?

5) The OP is well aware of the impact of the ccj which why a set aside application has been made and the fee paid

If you are an ex solicitor this is such poor advice to dish out on a subject you don't seem su fair with

The_Deep

Indeed Quentin, reading some of Legal Magpie's previous posts, I am concerned that he/she may be misleading people.