CCJ given on parking - sent to wrong address

Adean_2

Hi All,
So yesterday I checked my credit score and found that it was massively low. On checking I found that I have a CCJ that was based on a parking fine for an address I lived at. Basically I rented a removal van to move out of my flat. At that point I still had a permit for the address (but not for this van specifically). The ANPR caught the van and they gave a £180 fine to the rental company who provided my details (which they had for the flat I was moving out of). Thus I never recieved an of the paperwork and only found out yesterday. I have been reading quite a few posts on here about this subject and am going to apply for a 'set aside'. I have drafted my letter to be attached to my N244 form and would be incredibly grateful for feedback or advice from all you lovely people. Thank you :j:T

With regards to the claim number ***.
Defendant: **
Claimant: **
Judgment date: 15/07/2019

1. I request that the judgement be set aside
2. I further request that the cost of applying for the set aside be reimbursed.
3a) The original fine and the paperwork for the CCJ were sent to ***.
3b) I (***) moved out of this address on the 15/9/18. Returning only for a brief handover meeting with the management company on the 5th of October at 16:00. There was no post for me on this date and I did not return to the property after this.
3c) I therefore never received paperwork relating this and was unaware of any of it until checking my credit score on the 12/9/19. Whereupon I immediately contacted the court to obtain details. Then I immediately contacted the creditor for further details and spoke to the agent for the property. I then composed this letter and sent it as soon as I was happy all the particulars had been set out appropriately.
4a) The fine was issued for a removal vehicle that I rented from *** (***) to move from *** on the date of the fine 13/9/19. On this occasion I provided my current address (that being *** until the end of the day) as well as other contact details including phone number and e-mail address.
4b) The property management company was aware that I was moving on this date. I had a parking permit on this date to park at this location and had paid rent until the end of the month.
4c) I believed the parking company would be aware that a moving van would be present on this date and thus did not expect a fine.
5a) *** limited sent the paperwork to my original address at which I was not present. All of the ongoing paperwork was also sent to this address and so I never received it and was not able to respond either by paying or contesting the fine.
5b) *** made no attempt to contact me or discover my new address despite the fact that:
5c) I was registered on the electoral roll at my new address (***)
5d) The van rental company would have had access to my phone number
5e) The letting agent for the property (***) had my contact details (e-mail and phone). *** had me as a registered permit holder at this address and so could have contacted the letting agent for my details.
5f) Despite the above no attempt was made and I was thus unable to pay or contest the fine given.
6a) With regards to fine itself I contest based on the fact that the fine was unfair:
6b) I lived at the property and had a permit. Had I received the fine I would have contacted the property agents to have the fine revoked on the basis I was paying rent, had a permit and was using the van to move house. Under these circumstances permission was granted for me to park on this land and so a parking fine is unreasonable and unfair.
6c) On the same basis as the car park was managed by the property agent who then leased me a space the parking agent had no legitimate authority to issue a fine based only on the fact that I was using an alternative vehicle.
6d) In the case of ParkingEye Vs Beavis it was held that the large amount charged in that circumstance was necessary to deter overstaying; if they did not issue penalties then the car park would be unfairly used. In this circumstance I had a legitimate permit for the car park and the fine was delivered because I was using a different vehicle. In such circumstances the ‘overstaying’ principle does not hold.
6e) I would also suggest that an initial parking fine of 182 (which I have found from reading the CCJ details supplied from the court) is excessive in the extreme.
7a) To summarise:
7b) The fine (and other paperwork) were delivered to an address that I no longer lived at. The claimant made no attempt to contact me via other channels despite the fact that my new address was on the electoral register and they had other means to find alternative ways to get in touch. Because of this I had no means to respond to the fine either by paying or appealing it. I also contest the fine was unfair on the bases that I had a permit on this date making the need to enforce a parking fine unnessasary.
7c Based on the above I request that the CCJ be set aside and the fees for this process be reimbursed.

Kindest regards,
***
13/9/19

Coupon-mad

Looks good. Add more here:

4c) I reasonably believed the parking company - who are a direct contractor of the property management firm who knew about my move - would be aware in advance that a moving van would be present on this date and thus I did not agree to any 'penalty' contract, having made reasonable endeavours to communicate with the Claimant's principal for permission. I was not told to display any specific permit for the moving van and therefore there was no 'relevant obligation' or 'relevant contract' (see Protection of Freedoms Act 2012, schedule 4 definitions) that could give rise to a parking charge.

Also add a point about Jopson v Homeguard being a persuasive appeal case dealing with exactly this scenario and already determined in a consumer's favour by HHJ Harris QC.

And attach a transcript of it (it's in the Parking Prankster's case law pages) and quote the Judge where he talks about life in a block of flats/estate being impossible if every delivery driver/loading episode was treated as if it was a parking event and ripe for a penalty.

The_Deep

Nine times out of ten these tickets are scams (especially residential ones), so consider complaining to your MP.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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

henrik777

If a claim form has not been served then you are after CPR 13.2 i.e. a mandatory set aside.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13#13.2

Cases where the court must set aside judgment entered under Part 12

13.2 The court must set aside 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







Conditions to be satisfied
12.3

(1) The claimant may obtain judgment in default of an acknowledgment of service only if –

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12#12.3




So what is the relevant time for filing an acknowledgement of service ?

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part10#10.3

The period for filing an acknowledgment of service
10.3

(1) The general rule is that the period for filing an acknowledgment of service is –

(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and

(b) in any other case, 14 days after service of the claim form.

(2) The general rule is subject to the following rules –

(a) rule 6.35 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33);

(b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and

(c) rule 6.37(5) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).





If the claim form was not served (or validly served as some may put it) the time limit for acknowledging service has not begun. If it hasn't begun it can't have expired. If it hasn't expired mandatory set aside. No need for defence etc.




http://www.bailii.org/ew/cases/EWCA/Civ/2016/71.html


Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgment of service only if (a) the defendant has not filed an acknowledgment of service or a defence and (b) the relevant time for doing so has expired (my italics). I accept Mr McLaren's argument that, when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgment of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).



I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgment of service when "any of the conditions in rule 12.3(1)…was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.
This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all.

You need to focus on the point that they had "reason to believe" the address they had was incorrect. This puts the onus on the claimant to show they tried to find you but couldn't. (you've indicated that wouldn't have been an issue which is spot on).

So we have

1. No response.
2. Rental vehicle.
3. Management company.

If the judge agrees they haven't served the claim form, then the defence is not needed at this stage as your set aside is mandatory.

tboo

Can I ask



5c and 5f seem to be repeated in the summary of 7d - is that correct? Is there a need to summarise?



and it's not a parking fine but is that relevant now?

Adean_2

Hello all, thank you so so much for you support and feedback. I have updated my statement in line with some of your feedback and would love to hear your thoughts.

1. I request that the judgement be set aside
2. I further request that the cost of applying for the set aside be reimbursed.

3. Reasons for witness statement being submitted on this date.
3a) The original parking fine and paperwork for the CCJ were sent to xxx in October.
3b) I (xxx) moved out of this address on the 15/9/18. Returning only for a brief handover meeting with the management company on the 5th of October at 16:00. There was no post for me on this date and I did not return to the property after this. See appendix A for a confirmation that I handed in my keys to the property management company on the 5th of October
3c) I therefore never received paperwork relating this and was unaware of the situation until checking my credit score on the 13/9/19.
3d) As soon as I became aware, I began an investigation into the events leading up to the CCJ and submitted this statement with an N244 form as soon as I had all the information needed.

4. Reasons for requested ‘set aside’
4a) On the 15/9/18 I rented a removal van from xxx (xxx) to relocate from xxx to xxx (my new address). The Address given to xxx was; xxx the reason being that on the date I moved this was still my address.
4b) I stopped the rental van outside of the block of flats while I filled it with my possessions and then moved my possessions to my new address.
4c) My understanding of the events that followed (from speaking to xxx) is that the company issued a fine to xxxx who then contacted them to say they were not liable. xxx then gave xxx the details I provided when I rented the van.
4d) Following this, xxx sent the paperwork to my original address (xxx) which had been provided by the van rental company. This fine and the paperwork following were sent to this address after the 5/10/18. As already stated, I was no longer in residence at this address having handed in my keys at the handover meeting.
4e) As a result of the above I never received the paperwork for the fine or the CCJ and thus was unable to respond in any way.
4f) xxx had strong reasons to believe that I was no longer at the address they were sending the paperwork to. They received no response from me (either in appeal or payment) and obtained the address they used not via the DLVA or electoral register but through the company from whom I rented the van.
4g) Despite having reason to believe I had not received the fine they continued to send the paperwork to my old address.
4h) xxx made no attempt to contact me or discover my new address even though:
4i) I was registered on the electoral roll at my new address (please note I had been registered at the new address for the entirety of this time. I had lived at xxx previously and not registered at xxx) Appendix B is an e-mail from the local authority confirming I was registered at xxx at this time.
4j) The van rental company would have had access to my phone number which xxx could have requested.
4k) The property manager for the property xxx had my contact details (e-mail and phone). Xxx had me as a registered permit holder at this address and so could have contacted the letting agent for my details.
4l) Despite the above no attempt was made and I was thus unable to pay or contest the fine given.
4m) As I was never actually served with a claim form, I would suggest the situation warrants a CPR 13.2 ‘mandatory set aside’.
4n) In CPR 12.3 it states that the following conditions must be met for a default judgement to be given:
(1) The claimant may obtain judgment in default of an acknowledgment of service only if –
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.
4o) 13.2 CPR states that a mandatory set aside is applicable if the conditions in 12.3 have not been met. In this situation the papers were never actually served to me and the claimant had strong reasons to suspect I was no longer at that address. (CPR-12.3.1.b) The relevant time for acknowledgement of service or defence could not have expired as the papers were never received and hence the mandatory time never actually began. Hence, I request the ‘Mandatory Set aside’.
Summary of section 4 – request for set aside
The Judgement should be subject to a mandatory set aside on the basis that the paperwork was never delivered to me and so I never had a chance to respond and so the relevant time to respond never expired (as it never began) (CPR-12.3.1.b). The company had strong reasons to suspect I was not receiving the paperwork sent and equally did not make any additional effort to discover where they could contact me despite the fact there were several methods whereby, they could have found this information.
5. With regards to the original fine. I argue it is invalid for the following reasons:
5a) I lived at the property and had a permit. Had I received the fine I would have contacted the property agents to have the fine revoked on the basis I was paying rent, had a permit and was using the van to move house. Under these circumstances’ permission was granted for me to park on this land and so a parking fine is invalid.
5b) On the same basis as the car park was managed by the property agent who then leased me a space the parking agent had no legitimate authority to issue a fine based only on the fact that I was using an alternative vehicle.
5c) I have spoken with the property manager (xxx) and she has confirmed that had I received the paperwork and contacted her she would have instructed the company to waive the fine as I was (at that time) a resident using a removal van to move out of the property. (see appendix A) Therefore had I received the paperwork the fine would have been waived in any case and is thus invalid.
5d) In the case of Parking Eye Vs Beavis (appendix C) it was held that the large amount charged in that circumstance (which was less that that in this situation) was necessary to deter overstaying. if they did not issue penalties then the car park would be unfairly used. In this circumstance I had a legitimate permit for the car park and the fine was delivered because I was using a different vehicle. In such circumstances the ‘overstaying’ principle does not hold and so the precedent for such a large fine (£180) is invalid.
5e) I was not able to make contact with the building manager on my moving date to inform her that I would be using a rental van to move as it was a Saturday and I did not find out the number plate of the vehicle until the time I picked up the van itself (see Appendix a – confirming the building manager unavailability)
5f) I believed common sense would prevail in such matters. It was clearly a removal van and clearly used to help a resident remove belongings.
5g) I would argue I was not ‘parked’ during this time but simply loading a removal vehicle (see below precedent).
5h) I the case of Jopson v Homeguard (full transcript attached – see appendix D) a very similar scenario played out and the court found in the consumers favour. HIS HONOUR JUDGE HARRIS QC stated that:
“Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree. I think in the end this was agreed. A milkman leaving his float to carry bottles to the flat would not be “parked”. Nor would a postman delivering letters, a wine merchant delivering a case of wine, and nor, I am satisfied, a retailer’s van, or indeed the appellant, unloading an awkward piece of furniture. Any other approach would leave life in the block of flats close to unworkable, a consideration which those instructing Miss Fenwick seemed reluctant to accept. I am quite satisfied, and I find as a fact, that while the appellant’s car had been stationary for more than a minute and without its driver for the same period (whatever precisely it was), while she carried in her desk, it was not “parked”. Accordingly, for that reason too, the appellant was not liable to the charge stipulated in the respondent’s notice.“
5h) I would also suggest that an initial parking fine of £182 (which I have found from reading the CCJ details supplied from the court) is excessive in the extreme.
6) To summarise:
6a) I request the court invoke a ‘mandatory set aside’ as the paperwork was never served in which case the time to respond never started. The company could have made contact by other means but made no attempt to do so and had good reason to suspect I was not receiving the paperwork.
The fine itself in invalid. It would have been cancelled by the property manager if they had been aware and precedent does not support a fine in these circumstances.
6b) Based on the above I request that the CCJ be set aside and the fees for this process be reimbursed.

henrik777

5. With regards to the original fine.

When you skip from mandatory set aside to discretionary set aside i would add a phrase such as,

If the court is not with me on mandatory set aside under CPR 13.2 i set out the follow reasons for a discretionary set aside under CPR 13.3 ....

Or some such.

Coupon-mad

That's a good phrase.

Nice to see you posting here more than before, henrik777 (he of pepipoo and Legal Beagles fame).

:T

Adean_2

Very well phrased, have made the change. Just waiting to hear from the building manager with the confirmation that she would have cancelled the ticket if I had been aware and brought it to her attention.

The Parking companies legal people were meant to ring yesterday (still hoping to get this sorted without needing to go to court) but heard nothing so far.

Adean_2

So I phoned today and made the payment then sent my N244 over to them by e-mail. Can I just check I am correct in thinking sending by e-mail to ccbcfees@justice.gov.uk is okay and I don't have to send by post???

The guidence e-mail says: Court fees can be paid by a Cheque or Postal Order made payable to HMCTS or by contacting the Helpdesk on the number below between 9.15 and 15.30 Monday – Friday or on the Court’s last working day of the month between 9.15 and 15.00.

After payment has been made via phone the application can be emailed to: ccbcfees@justice.gov.uk.

But now I am second guessing myself and worrying that they mean an application for help with fees not the N244?

Thank you again

Coupon-mad

After payment has been made via phone the application can be emailed to: ccbcfees@justice.gov.uk.

But now I am second guessing myself and worrying that they mean an application for help with fees not the N244?

Hmmm, not sure.

I would have said email it to the CCBCAQ email addy that KeithP posts on every claim thread!