Parking Eye - Set Aside | Ready?

FinesAreBad

Hi Coupon-Mad,

Thank you very much, thats awesome news for me then! It makes my life a lot easier by not having to worry about preparing anything else for the hearing.

In that case I only need to take a copy of the witness statement, draft order and any evidence that I have already submitted with the N255 application, for my own reference, correct?

henrik777

1. Do I actually have to submit a defence for the hearing for a set-aside? - Do I defend the original claim in this defence?

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

Very much depends on whether you want a mandatory set aside (no defence required) or a discretionary set aside where you pretty much do need to file a defence.

Cases where the court may set aside or vary judgment entered under Part 12
13.3

(1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim


There is no such clause in 13.2

Cases where the court must set aside judgment entered under Part 12
13.2 The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because–

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

(c) the whole of the claim was satisfied before judgment was entered.

2. Does the defence to have the CCJ set aside vary from a defence against the claim? - My understanding is the hearing is ONLY for the set-aside and that is where the judge will agree to set-aside the judgement and if the judgement is set-aside a new hearing will take place where I will have to submit a new defence against the original claim.

It is only for the set aside but you may have to show a real prospect of defending the case (have a good defence) as above.

2. Do I have to submit a skeleton argument?

There is no requirement. However a good skeleton argument rather than a bumbling nervous wreck who isn't used to court can help no end in persuading a judge. (and help you know what you're talking about and not forget something)

3. Do I have to submit a schedule of costs now?

If you're going to have one prepared you might as well submit it. Many are so relieved the hearing is over they simply forget to ask !

FinesAreBad

Okay, a bit of conflicting advice here.

henrik777 wrote: »

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

Very much depends on whether you want a mandatory set aside (no defence required) or a discretionary set aside where you pretty much do need to file a defence.

I have made it clear in my witness statement that I am applying for a discretionary set-aside. With my application I included about 60 pages of evidence, so plenty for them to believe "I have a real prospect of a successful defence"

henrik777 wrote: »

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13
It is only for the set aside but you may have to show a real prospect of defending the case (have a good defence) as above.

I believe I've done that with the witness statement and evidence attached. If that doesn't show what they are going to be looking for then [STRIKE]IT'S ALL A SHAM![/STRIKE] I would probably regret not listening to your advice. The part that confuses/annoys me the most is that no deadlines for submitting a defence were mentioned in the letter I received from the court. There are 2-3 sentances on the whole page that simply say I will have a hearing on XX at XX. Thats it. No other instructions.This is what confuses me to what I have to do.

henrik777 wrote: »

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13
There is no requirement. However a good skeleton argument rather than a bumbling nervous wreck who isn't used to court can help no end in persuading a judge. (and help you know what you're talking about and not forget something)

Totally agree! I think It will benefit me the most out of anybody else. With the skeleton argument do I submit it in advance or do I just give a copy to the usher when I arrive at the court.

henrik777 wrote: »

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13
If you're going to have one prepared you might as well submit it. Many are so relieved the hearing is over they simply forget to ask !

I don't have one but should prepare one anyway. Again do I submit that in advance?

henrik777

I have made it clear in my witness statement that I am applying for a discretionary set-aside. With my application I included about 60 pages of evidence, so plenty for them to believe "I have a real prospect of a successful defence"

Every time somebody replies to an individuals thread you have to remember they won't recall too much in the way of detail about the unique case that is yours(or any other poster). I mean, i don't post much, but imagine Coupon Mad who posts loads having a recall like that ?

Generally you'll get answers based on the last post or 2.



As for 60 pages, i'm not sure many judges will read, or attempt to read, all of that. Certainly, if you make oral submissions, it'd be quite some length if you need reference all that material.

Your submissions need to be on point.

The part that confuses/annoys me the most is that no deadlines for submitting a defence were mentioned in the letter I received from the court. There are 2-3 sentances on the whole page that simply say I will have a hearing on XX at XX. Thats it. No other instructions.This is what confuses me to what I have to do.

You really shouldn't have to do anything. (other than prepare for the day)

You've made the application, which should've been supported by evidence.

(3) An application under rule 13.3 (cases where the court may set aside(GL) or vary judgment) must be supported by evidence.

With the skeleton argument do I submit it in advance or do I just give a copy to the usher when I arrive at the court.

Few days before. You want the judge to read it beforehand.

I don't have one but should prepare one anyway. Again do I submit that in advance?

Not sure it's essential, but i would.



Anything sent to court should be sent to the opponent (usually their legal representatives)

FinesAreBad

Hi henrik777,

When I said "I made it clear in my witness statement" I meant that I have made it clear to the court. I didn't mean to pick on anybody on this forum that is taking the time out of their life to help people like me and I am very greatful for all the help I have received!


Today I received an email from the legal department of PE saying they will agree to a set-aside given the evidence I have provided. Only if I pay them their legal costs of 97 pounds.


What weasels....


Obviously I am not going to agree to this, especially now that I have invested so much time and money into this. In my honest opinion I think they have realised how screwed they are and are still trying to make the most of their situation. I wouldn't be suprised if they even try to abandon the claim. In which case they automatically pay me £255 pounds + costs for attending as I have suggested so in my draft order.


Any thoughts?

Coupon-mad

In which case they automatically pay me £255 pounds + costs for attending as I have suggested so in my draft order.

ONLY if your Judge agrees at the hearing, to reserve the costs!

Bear in mind you cannot show/refer to PE's Without Prejudice offers in court, except when it comes to the final matter of costs at the actual hearing but that's miles off.

When I said you didn't have to field a signed defence now, I didn't mean you might not have to answer a few Qs to satisfy the Judge that you have chances of successfully defending it. I agree with Henrik777, no conflict.

FinesAreBad

Coupon-mad wrote: »

ONLY if your Judge agrees at the hearing, to reserve the costs!

Bear in mind you cannot show/refer to PE's Without Prejudice offers in court, except when it comes to the final matter of costs at the actual hearing but that's miles off.

When I said you didn't have to field a signed defence now, I didn't mean you might not have to answer a few Qs to satisfy the Judge that you have chances of successfully defending it. I agree with Henrik777, no conflict.

Thank you for the clarification, much appreciated and I am sorry if I upset you guys by not being clear when expressing myself.

Coupon-mad wrote: »

Bear in mind you cannot show/refer to PE's Without Prejudice offers in court, except when it comes to the final matter of costs at the actual hearing but that's miles off.

Good to know this, is it acceptable for me to reject their current offer and in my response send them an updated version of their Tomlin Order. In the updated version I would add my costs for the application. Is that acceptable practice or should I not bother and politely reject their offer?

henrik777

FinesAreBad wrote: »

Thank you for the clarification, much appreciated and I am sorry if I upset you guys by not being clear when expressing myself.



Good to know this, is it acceptable for me to reject their current offer and in my response send them an updated version of their Tomlin Order. In the updated version I would add my costs for the application. Is that acceptable practice or should I not bother and politely reject their offer?

Not upset.

Worst that can happen is they say no.

FinesAreBad

Hi,

Can you please read over my SA and my SoC and let me know if I should change, add something? I have already submitted all the evidence with my application. I've included a table of reference with them and I will reference them in the SA when I finalise it.

Thanks.

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SA content

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1. Request

1.1 The Defendant asks the court to set-aside the default judgement issued on the XX/XX/XXXX.

1.2 The Defendant asks the court costs to be reserved.

2. Reasoning

2.1 I was not aware of the claim made against me prior to learning about the CCJ in XX/XX.

2.2 All documents sent by the Claimant and the court have been delivered to an old address of mine. I was thus denied a fair trial and the opportunity to properly defend my case.

2.3 I purchased the vehicle with registration XXXXXX on the XX and it was registered at XX. I moved away from that address on the XX.

2.4 I had arranged with my old landlord to get my post until I received my logbook. I then sent my logbook back to the DVLA to get my address updated and waited for a few weeks to hear back from them as on the DVLA website it states it can take up to 6 weeks to receive a new logbook.
2.5 I didn't receive anything until XX, so I contacted the DVLA and it turned out they never received my logbook. I was told I had to pay a fee to get my logbook reissued. I completed the form and paid the fee XX I only received my reissued logbook in XX.

2.6 I have done my best to keep my details with the DVLA up-to-date. The DVLA updated my address a week after the Claimant requested my details from the DVLA.

2.7 Since learning about the CCJ I have been trying to establish a meaningful conversation with the Claimant in an effort to reduce costs for both parties.

2.8 This includes a representation made to the Claimant by a member of parliament, XX who is my MP.

2.9 The Claimant has not followed the Pre-action Practice Direction and has ignored direct correspondence from me and a member of parliament for nearly XX months, although promising and reassuring the MP that they are going to contact me.

2.10 Compliance with the Pre-Action Direction is not voluntary. It is part of the CPR and is binding. It requires both parties to engage in a meaningful conversation in an effort to avoid litigation. The court may punish those who do not. Inter alia, the court’s powers include a costs order, and this may be on the indemnity basis (16(a) and (b)) and the power to remit (or increase) interest 16(c)/(d). Such sanctions can apply even against a successful party (paragraph 16).

2.11 Paras 3, 8 and 12 of the PD set out its purpose, which is to primarily to avoid litigation (para 8) by laying down a procedure which allows the parties to:
- understand each other’s positions (para 3)
- make decisions about how to proceed (para 3)
- explore settlement/consider ADR (para 3)
- support the “efficient management” of any proceedings and reduce costs (para 3)
- “stocktake” and review their respective positions after following the PD by exchanging information, to see if proceedings can be avoided and to “at least” narrow the issues (para 12).

2.12 Paras 6(a) & (c) oblige a Claimant to enter into a meaningful dialogue with a Defendant at an early stage by imposing specific obligations to:
- explain the claim in a Letter Before Claim,
- provide relevant core documents, and
- answer any questions asked by the Defendant in sufficient detail for the Defendant to understand and respond

2.13 The Claimant had a reasonable doubt to believe my details are incorrect as I did not reply to any of their letters or any of the court papers. As a parking company which specializes in issuing and recovering PCNs daily, the Claimant has certainly been in this situation before and;

2.14 has had a good reason to believe they did not have my correct details. Yet they proceeded with further litigation actions, which has caused me great distress and hardship.

2.15 It is noted that because of such unreasonable behaviour of parking companies, Government in their right mindset have announced a CCJ review due to parking companies exploiting the legal system in December 2016. The Right Honourable Sir Oliver Heald QC MP on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses." 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.”

2.16 I note that parliament has been well aware of the MO of such private parking companies, and on the 15th of March 2019 a Bill was enacted to limit the damage they cause to normal people’s life.

2.17 I ask the court to consider all points in my Draft Order and;

2.18 Costs, as listed in my Schedule of Costs be reserved.

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SoC content

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In the County Court at XXX

Claim No.: XXX
Between

PE XX
(Claimant)

-v-


XX
(Defendant)

DEFENDANT'S SCHEDULE OF COSTS



Ordinary Costs, as stated in Civil Procedure Rule 27.14.2(e)


Loss of earnings/leave, incurred through attendance at Court 03/10/2019 (7.5 hours x £19.22) £144.15

Return mileage from home address to Court (5 miles x £0.45) £2.25

Parking near Court £5.10

Sub-total £151.50

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Further costs for Claimant's unreasonable behaviour, pursuant to Civil Procedure Rule 27.14(2)(g)

Court fee for N244 application for set-aside: £255.00

Research, preparation and drafting of documents (8 hours at Litigant in Person rate of £19.00 per hour) £152.00

Stationery, printing, photocopying and postage: £15.00

Sub-total £422.00

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£ 573.50 TOTAL COSTS CLAIMED

KeithP

In your Costs Schedule, I would move "Court fee for N244 application for set-aside: £255.00" into the 'ordinary costs' section.

You don't want a judge to read 'unreasonable behaviour' and not read further.