Parking Charge Notice- Newlyn

BeckyT711

So not only do I want this set aside but I’m also disputing the charge in the first place due to the fact I was parking on my own land, do I need to explain this as part of my defence when I send my application in? Or does the defence come after.

The claim has definitely been sent to my old address knowingly because included in the paperwork Gladstones have sent is a letter before claim that was sent to my new address which I never received! This is dated before the claim form that was sent to my old address so they did know where I lived before sending the claim form.

Coupon-mad

The defence comes after but the Judge will want to be satisfied that you have good prospects of defending it.

The claim has definitely been sent to my old address knowingly because included in the paperwork Gladstones have sent is a letter before claim that was sent to my new address which I never received! This is dated before the claim form that was sent to my old address so they did know where I lived before sending the claim form.

Mandatory set aside then and ask for your £255 fee back from the Claimant due to their conduct, if you pay court fees.

BeckyT711

Does the fee need to be paid alongside the application or once it has been received?

Redx

BeckyT711 wrote: »

Does the fee need to be paid alongside the application or once it has been received?

I believe it is paid along with the set aside application form , so up front

BeckyT711

So I've been following the below template for my six point draft order..

IT IS ORDERED THAT:

Upon reading the Defendant's application dated XXXXXXXXXX.

It is ordered that:

1. The default judgment dated XX.03.2019 be set aside.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the claim form on the Defendant by 4pm on XX/XX/XX paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on XX/XX/XX.

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 plus the Defendant's costs for attending the hearing.

6. All enforcement be put on hold pending the outcome of the application.

Is this right? And what sort of time frame should I be putting down for the dates required?

KeithP

You leave the dates in paras 3 and 4 as XX/XX/XXXX. They are for the judge to decide.

Coupon-mad

BeckyT711 wrote: »

Does the fee need to be paid alongside the application?

Yes, unless your income qualifies for help with court fees (Google it).

Now show us your WS about the set aside, and what evidence you will bring that shows the Judge that the claim was never properly served and that UKPC failed in their duty to establish the correct address for service, with basic checks, as you were 'there to be found'.

Make sure you include this in your WS:

The claim has definitely been sent to my old address knowingly because included in the paperwork Gladstones have sent is a letter before claim that was sent to my new address which I never received! This is dated before the claim form that was sent to my old address so they did know where I lived before sending the claim form.

And at the hearing, really push for your costs of £255 to be IMMEDIATELY refunded by the Claimant, due to this unreasonable conduct for which there is no justification possible.

If the Judge says no, ask for the costs to be 'reserved' until the main hearing, as you are seeking a costs order either at this hearing or the next, due to the facts about them having your new address all along.

BeckyT711

Okay here is my first draft. I found the information regarding the 'order dismissing the claim' and omitted the parts that wouldn't be relevant to me. Can I use this as part of my witness statement? I also included the fact that the parking space was my own property which will be my main defence.

IN THE COUNTY COURT AT: xxxxxxxxxx

Claim No: xxxxxxxxx

BETWEEN:

xxxxxxxxxxx (Claimant)

-and-

xxxxxxxxxx (Defendant)




WITNESS STATEMENT



I am xxxxxxxxxx and I am the defendant in this matter. This is my supporting statement to my application dated xxxxxxxx requesting to:

Set aside the default judgement dated xxxxxxxxx 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.

DEFAULT JUDGEMENT

1.1 I understand that the Claimant obtained a Default Judgement against me as the Defendant in July 2019. However, this claim form had not been served at my current address and I thus was not aware of the Default Judgement until October 2019 when I received a letter from Newlyn Debt Collectors Ltd. This prompted me to do a personal search on Registry Trust which originally came back clear when searching under my name and current address (due to the fact the correspondence from Newlyn came to my new address). Following this I performed a credit check which again confirmed I did have a default CCJ. I contacted Registry Trust again and they confirmed it had been served to me at an old address, however I moved to a new address in March 2019. In support of this I can provide a solicitor’s completion statement showing the date of completion which is attached.


1.2 On the 14/11/2019 I contacted Gladstone Solicitors as UKPCM had passed my case on to them, to confirm which addresses they held for me on their records. They confirmed they only had my old address and that the Claim Form had been sent there so I requested they send me a copy of any correspondence to my new address.

1.3 Upon receiving the correspondence from Gladstones Solicitors, a ‘Letter Before Claim’ dated 4/07/2019 came to my attention (of which I never received) addressed to where I’m currently residing, yet the claim form, dated 19/07/2019 was still sent to my old address, thus proving that the claim form was KNOWINGLY sent to my old address and denying me the opportunity to act upon this in a timely manner. I received the correspondence from Newlyn Debt Collectors Ltd as they had performed a basic search to find my current address, a process that Gladstones and UKPCM should have done to ensure I received the Claim Form and any other vital correspondence.

1.4 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 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.” The Minister added 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.”

1.5 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.

1.6 On 21/11/2019 I made an e-mail request to the Claimant inviting them to consent to set aside the judgment due to the reasons set out previously.

1.7 The Claimant did not respond to my request.

1.8 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 and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant due to their conduct, should this request be successful, and allow me to submit my defence.

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. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
2.3.1. 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.
2.3.2. 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.
2.3.3. 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.
2.3.4. 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 UKCPM.

2.4 Further to this, the parking space in question was my, the defendants, own private property and have evidence to prove this from the Land Registry. The conditions of my lease agreement state that the allocated bay I was parked in was part of the shared ownership premises I purchased and there is no mention of needing to provide a permit to park there.

2.5. 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.

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


Statement of Truth
I, xxxxxxxxxxx , the Defendant, believe the facts stated within this Witness Statement to be true.
Signed: ________________________________
Dated: ________________________________

Evidence I will be including will be:

- Statement from the solicitors to prove completion on my new property
- All correspondence from Gladstones including the letter before claim to the new address, and the letter stating they'd made a change to my address in November.
- E-mail correspondence to UKPCM that were ignored
- Proof of land ownership from the Land Registry
- Copy of my lease agreement to show that there is no mention of having to use a permit in my allocated bay.

Coupon-mad

Remove this entirely:

2.3. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
2.3.1. 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.
2.3.2. 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.
2.3.3. 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.
2.3.4. 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 UKCPM.

And add in some of Henrik777's recent wording (click on his username to see his posts) about the rules on 'Mandatory Set Aside'.

BeckyT711

Okay great, thanks so much. I read on another post from you on another thread that you can take the paperwork and make payment at your local county court? Is this the case?