Reply to Defence

Valah0

Hello Everyone,

Thanks for reading and any input.

I recently got a CCJ overturned by Civil enforcement Ltd. As they were sending the mail to the wrong address.

The judge ordered the judgement to be set aside. Being satisfied that I should be allowed to defend the claim.

Civil enforcement have subsequently re-plied to the defence.

They are claiming I overstayed the parking by 2 hours and 25 minutes.

Does anyone know what happens now?

Also I received a corrections questionnaire (small claims track) with the general form of judgement or order.

Is that something I need to fill in?

Many thanks

Le_Kirk

What does it say on the judgment or order and did you mean Directions Questionnaire?

Valah0

Sorry, yes I meant a direct questionnaire.

It says the judgement is set aside. The court being satisfied that the attendant should be allowed to defend the claim.

The defendants statement .....as attached to his application dated.....shall stand as the defence in this action.

Confirmation of my address

The claimant, if so advised file at crown court and serve a reply to the defence by ....

Small claims directions questionnaire shall issue

KeithP

Valah0 wrote: »

The claimant, if so advised file at crown court and serve a reply to the defence by ....

And it didn't say crown court, did it?

Detail is important, otherwise you may well find yourself being given wrong advice.

Do not allow predictive text to ruin your claim.

Valah0

Apologies. Yes it did say crown court.

waamo

Valah0 wrote: »

Apologies. Yes it did say crown court.

My crystal ball says it doesn't. It will say County Court.

Le_Kirk

Looks like you need to complete the DQ but the court is accepting the defence as previously filed.

Valah0

I think your crystal ball is working very well. The case was heard in the county court, not crown court.

Le_kirk Am I ok to post my defence here for you guys to look at? (Obviously minus the dates etc)

waamo

Valah0 wrote: »

I think your crystal ball is working very well. The case was heard in the county court, not crown court.

Le_kirk Am I ok to post my defence here for you guys to look at? (Obviously minus the dates etc)

Yes. Post up a suitably redacted version of your defence. If you've submitted it then you can't easily change it. In saying that it may help when constructing a witness statement.

Le_Kirk

As waamo says post your defence here, even though the judge has accepted your previously filed defence, there may be some guidance we can still give.

Valah0

Retracted defence


Draft Defence
Monday
In the County Court Business Centre

Claim Number:
Claimant:
Defendant:

I am the defendant in this matter and was the registered keeper of the vehicle at the time of occurrence. I no longer am the registered keeper. I currently reside at

This is my supporting Statement in support of my application dated

* Set aside the Default Judgement dated as it was not properly served at my current address;
In
* Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee; 

* Order for the original claim to be dismissed, or to be re-heard at a new hearing; 

* Order to stop any enforcement applications by the claimant pending the set aside hearing.

1. Default Judgement

1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 04/06/2019, however, this claim form was not served at my current address and I thus was not aware of the Default Judgement until I checked my credit report online on 06/06/19 and noticed a CCJ issued against me. On the same I went to my old address and recovered the Particulars or claim form dated

1.2. As all the correspondence were sent to my previous address I was completely unaware of claim and could not responded to the court summons, I believe they had reasonable cause to question whether they were using an accurate address. Further endeavors should have been reasonably undertaken to discover I was no longer residing at said address.(previous add mentioned here)

1.3. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. 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.” He added:

"It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. 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."

1.4. 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.

1.5. The Claimant states that the parking fine was issue on 18/07/19, however for how much I can re-collect I have not ignored any yellow sticker that was stuck to the car neither I have received anything in the post till I went to my old premises to locate this claim form.

1.6. I have also not received any previous documentation from the Claimant representative in this matter and I thus was never able to properly challenge the claim. This is despite my best efforts as noted below.

1.7. I attempted to contact the Claimant representative via phone number on their website and on the email received from county court’s administrator more recently (10/06/19). I was not able to get through to a member of the Claimant’s representatives staff to discuss the matter as they have an automated phone system that does not allow you to talk to an advisor and only an automated voice to accept payments.

1.8. Considering the above I was unable to defend this claim properly. 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 have received no documentation/photographic evidence showing that the concerned vehicle was present at the location mentioned in the email received from the county courts administrator.

2.2. The Claimant, Civil Enforcement LTD has not proved that the alleged incident relates to a vehicle for which I am the Registered Keeper. Further to this, even then any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. This includes the requirement to issue the Notice to Keeper within 14 days of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, or indeed after, 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.

2.3. 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 ever parking at the location of the alleged incident. The vehicle that I was the Registered Keeper of, can driven by other insured adult and is on occasion driven by other adults with their own comprehensive insurance. I submit that the Claimant cannot provide such evidence of the identity of the driver. 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. 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.

2.5. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.5.2. 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.

2.5.3. 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 Hounslow Enforcement Limited.

2.6. In order to make informed decisions and statements in my defence as keeper of a vehicle, I will require copies of all paperwork, photographs relating to contraventions and pictures of all signs from the Claimant.

2.7. The Protection of Freedoms Act 2012 does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Also any interest added due to claimant failure to provide the right address of the defendant need to be cancelled.
2.8. The government have put in place a mechanism whereby liability can be transferred from driver to keeper, under the Protection Of Freedoms Act 2012, sch 4. The claimant has made the conscious decision not to avail themselves of this legislation and use a notice to keeper which fails to comply with 8.1, 8.2a, 8.2c, 8.2f, 8.8b, 9.2.a, 9.8b of the Act.

2.9 On the other hand it is believed that the Claimant may seek to rely on a rather
unique interpretation of the judgement in Elliott -v- Loake which is different from this case.

2.10 This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

2.11. 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 Statement are true.
Full name:
Dated:
Signed