CCJ from a parking fine

henrik777

Egf wrote: »

Unfortunately I sold the car last year and no longer have the paperwork.
Should I wait for the DVLA information to come before doing the set aside application?
Couldn’t find timescales on how long they take

Phone them(dvla) and ask.

The problem you have is that a discretionary set aside has to be done quickly. A mandatory set aside doesn't have a time limit but you'd nearly always be backing it up with a discretionary one.

Egf

Hi. This is my witness statement for my set aside application, I’d be grateful if I could have some opinions on whether it is ok:

I am xxxxxxx and I am the Defendant in this matter.
This my supporting Statement in support of my application dated 01/10/2019 to:
· Set aside the Default Judgement dated July 2019 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 August 2019. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until 26 September 2019 when I visited my tenants xxxxxxxxxxxxxxxx when they handed me some mail addressed to me. I understand that this Claim was served at an address that I have never lived at nor had any correspondence going to. My car was not registered to this address at any time that I owned it. In support of this I can provide confirmation from DVLA confirming I did not have the car registered to this property.

1.2. I have received a parking fine from the claimant on 10 December 2015 for failure to display a valid ticket. I followed the appeal process on their notice and submitted an appeal to the fine on 11 December 2015 attaching a picture of the valid ticket I had displayed in my vehicle. I did not receive a response apart from the acknowledgement of receipt of my email. This acknowledgement requested further information which was not relevant to the incorrectly issued ticket. I sent a response to this effect and asked for the fine to be cancelled as it had been issued incorrectly. No response was received from the claimant.

1.3. Between February 2016 to June 2016 I received correspondence to my address, from a third party debt company requesting payment. I contacted them by phone and email each time confirming I had appealed the ticket. In March 2016 I received a reply saying the time to appeal was no longer available. I called and emailed “Debt Recover Plus” to let them know I had appealed on time. Each time, my appeal within the 21 day time scale was ignored and I was told I no longer had time to appeal. I forwarded a copy of my email from December 2015 to them however this was ignored and correspondence stopped in June 2016.

1.4. On 26 September 2019 I contacted ELMS Legal as the correspondence handed to me by my tenants was from them and Northampton County Court. ELMS legal confirmed that I now had a CCJ following a claim by their client, the claimant. I confirmed that correspondence had been sent to the incorrect address and for this reason I was not able to respond. ELMS legal confirmed that the address was obtained from DVLA records.
I have made a SAR request from DVLA to confirm the car was not registered to this address.

1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me for two reasons. Firstly they are pursuing payment for a parking fine which was incorrectly issued. I have appealed this fine as per their process and this has been ignored on numerous occasions. Secondly, 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 follow their own appeals process when issuing a fine and they 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. 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’’even tho they had corresponded with the Defendant at the correct address, 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.
In any event, the Claimant has provided an appeals process which they have not allowed the Defendant to follow.

2.3. If the Claimant can evidence that the alleged incident correctly 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 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.
2.6. 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.


Statement of Truth:
I believe that the facts stated in this Witness Statement are true.

Egf

Hi. This is my witness statement for my set aside application, I’d be grateful if I could have some opinions on whether it is ok:

I am xxxxxxx and I am the Defendant in this matter.
This my supporting Statement in support of my application dated 01/10/2019 to:
· Set aside the Default Judgement dated July 2019 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 August 2019. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until 26 September 2019 when I visited my tenants xxxxxxxxxxxxxxxx when they handed me some mail addressed to me. I understand that this Claim was served at an address that I have never lived at nor had any correspondence going to. My car was not registered to this address at any time that I owned it. In support of this I can provide confirmation from DVLA confirming I did not have the car registered to this property.

1.2. I have received a parking fine from the claimant on 10 December 2015 for failure to display a valid ticket. I followed the appeal process on their notice and submitted an appeal to the fine on 11 December 2015 attaching a picture of the valid ticket I had displayed in my vehicle. I did not receive a response apart from the acknowledgement of receipt of my email. This acknowledgement requested further information which was not relevant to the incorrectly issued ticket. I sent a response to this effect and asked for the fine to be cancelled as it had been issued incorrectly. No response was received from the claimant.

1.3. Between February 2016 to June 2016 I received correspondence to my address, from a third party debt company requesting payment. I contacted them by phone and email each time confirming I had appealed the ticket. In March 2016 I received a reply saying the time to appeal was no longer available. I called and emailed “Debt Recover Plus” to let them know I had appealed on time. Each time, my appeal within the 21 day time scale was ignored and I was told I no longer had time to appeal. I forwarded a copy of my email from December 2015 to them however this was ignored and correspondence stopped in June 2016.

1.4. On 26 September 2019 I contacted ELMS Legal as the correspondence handed to me by my tenants was from them and Northampton County Court. ELMS legal confirmed that I now had a CCJ following a claim by their client, the claimant. I confirmed that correspondence had been sent to the incorrect address and for this reason I was not able to respond. ELMS legal confirmed that the address was obtained from DVLA records.
I have made a SAR request from DVLA to confirm the car was not registered to this address.

1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me for two reasons. Firstly they are pursuing payment for a parking fine which was incorrectly issued. I have appealed this fine as per their process and this has been ignored on numerous occasions. Secondly, 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 follow their own appeals process when issuing a fine and they 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. 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’’even tho they had corresponded with the Defendant at the correct address, 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.
In any event, the Claimant has provided an appeals process which they have not allowed the Defendant to follow.

2.3. If the Claimant can evidence that the alleged incident correctly 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 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.
2.6. 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.


Statement of Truth:
I believe that the facts stated in this Witness Statement are true.

Egf

Is it the same form? I’m going to submit as soon as dvla reply. Is the above statement for the set aside ok?

Umkomaas

These statements appear contradictory

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.

1.2. I have received a parking fine from the claimant on 10 December 2015 for failure to display a valid ticket. I followed the appeal process on their notice and submitted an appeal to the fine on 11 December 2015

ParkingEye v Beavis put paid to much of the following, don't go there would be my advice unless you understand and are able to articulate all the changes to this part of the law and how they do or don't impact on your case.

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.

2.2. 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’’even tho they had corresponded with the Defendant at the correct address

Spelling.

In overall terms, I don't think there's any 'correct' type of WS - it is your account of the circumstances - and only you know the intimate details of those.

nosferatu1001

You need
1) Defence to the underlying charge
2) Witness Statement supportnig the reason for the court to grant a set aside. If you have an autonmatic set aside reason - failure to effect good service - then name this explicitly AND also state IN THE ALTERNATIVE you ask the court to sert aside under CPR... which allows for any other good reason, such as a reasonable chance of success at defending the underlying claim.
3) SIX POINT draft order, which Reserves costs AND makes it so that if the C disctoniues, you still get your costs.

Egf

Hi. I have received my court date for December. Should I get in touch with VCSs solicitors to check what they are doing and if they are willing to resolve based on everything in my favour or should I wait to see if they turn up?

Coupon-mad

Certainly no contacting the C before a set aside application hearing!

You do not want to prod that snakes nest to prompt them to notice you more and send someone to contest it. They do not have to turn up to a set aside, and it would be easier for you if they do not.

So leave it, and read LOTS of set aside threads in November here by searching the forum for them.

We even had one refused (very rare indeed) so you need to read that to see where the OP went wrong* and read posts by Henrik777 to understand whether yours is actually a mandatory set aside that can't be refused, or not.


*We will not search for it and link it, as anyone can search the forum & I'm sure we don't recall the case details except I think the poster's name started with a 'p'.