Parking CCJ set aside advise

Confusedbylaw

Hi All,
Grateful if I can get some advice regarding the CCJ I learned about few days ago. I have read the newbies thread and other similar posts. I understand what my course of action should be so just needs validation if I am thinking right.
The context behind the CCJ - It relates to parking on an open without boundary private land managed by Parking Control Management Ltd. The PCN was issued in April 19, at that time my car was registered at my previous address therefore all letters were sent there. I did not have access to that property hence never knew they sent these letters. V5 updated in Sept.19 which is when a letter was received from a company called Trace Debt Recovery addressed to me as a RK to my new address. this is the first time I learnt there was a PCN. They asked for £160 which I thought was ridiculous, Upon contacting them they advised that since the matter was going on from April and they couldn't get in touch with me the case is apparently closed and no action was needed. At that time I read few of the posts here and thought that since its a private PCN perhaps its gone away therefore took their word for it. Few days ago while checking my credit file I learnt about a CCJ of £262 which was processed by Gladstones.
Here's what I am thinking to do now, send a set aside request to the court and submit my grounds which I am basing on the following:

1. gladstones got a default judgment against me without serving notice to my current address
2. no previous documents received and the evidence related to the PCN
3. made contact with Trace but was advised case was closed. Also it proves they were aware of my new address
4. court papers contains no details therefore not aware of what the case is. Need claim documents from gladstones to defend my case
5. claimant behaved unreasonably and did not fulfill their duty to use defendants current address

Related to my point 2 above, I did a search using references mentioned on Trace's letter on the PCM website where I saw the photos of my car parked in open land with notice well behind in the background. There is indeed a notice board but well inside the land and it seems there is only one notice board for the entire patch which perhaps wasn't visible to the driver as the car was parked at the front of the land inside the curb. There is also a parking ticket like paper tucked in the windscreen vipers which the driver didn't notice back. So as the registered keeper of the car I am thinking if even a contract was made with the driver? the font on the board is also small and not visible which can be a secondary point.

I am also worried about the letter from Trace. Should I have made contact with PCM? Should I have asked Trace to confirm case was closed in writing?

Also doing a cost benefit analysis here, there is a charge of £255 for set aside which I may not get and the penalty is £262 and I am within the 30day period. if I have a solid case I am inclined to follow the set aside route and claim the fee.

I have also sent a SAR request to DVLA and PCM. Should I send one to Gladstones?

Any help greatly appreciated

henrik777

3. made contact with Trace but was advised case was closed. Also it proves they were aware of my new address

If a company has reason to believe you don't live at an address they MUST make enquiries to try and find you. If these fail to produce a new address it may be permissible to use an old address as "last known address".

So did they know of your new address before issuing a claim ?

Was there a significant time gap between DVLA access to your details and issuing a claim ?

https://forums.moneysavingexpert.com/showpost.php?p=76473858&postcount=24

https://forums.moneysavingexpert.com/discussion/6064421/parking-ccj-anpr-camera-and-ccj-docs-sent-to-old-address

Coupon-mad

It was at a 'kerb' not curb.

That USA-based typo really grates, sorry, and I just want to make sure you don't type that for the Judge who will likely be a pedantic detail-minded person too!

So did they know of your new address before issuing a claim ?

TRACE were acting for the parking firm and they did make contact and established his/her new address, so when they were contacted by phone by this OP (well before the date of the wrongly served court claim...needs confirming by this OP?) the address had been confirmed as the new one and PCM should have updated their database.

Even if they/Trace considered the matter 'closed' from the Trace enquiries POV, an updated address for their client, PCM, is certainly a material fact Trace had to pass to PCM.

And at all times, PCM were the primary data controller, and Trace their agent.

PCM's fault then.

henrik777

Coupon-mad wrote: »

It was at a 'kerb' not curb.

That USA-based typo really grates, sorry, ad I just want to make sure you don't type that for the Judge who will likely be a pedantic detail-minded person too!
TRACE were acting for the parking firm and they did make contact and established his/her new address, so when they were contacted by phone by this OP (well before the date of the wrongly served court claim...needs confirming by this OP?) the address had been confirmed as the new one and PCM should have updated their database.

Even if they/Trace considered the matter 'closed' from the Trace enquiries POV, an updated address for their client, PCM, is certainly a material fact Trace had to pass to PCM.

And at all times, PCM were the primary data controller, and Trace their agent.

PCM's fault then.

Prove that for a set aside and it's a shoe in.

All seems rather quick and unclear to me. Certainly suggests this is correct but i like to be certain in case someone runs down the wrong road.

Confusedbylaw

I am assuming PCM and Gladstones were passed on all the data by Trace who knew of my new address. Is that a fair assumption to make? do I have solid grounds for set aside if Trace is not required to pass on the information?

There's another detail which I should mention and which makes me the most nervous is about updating my V5. At the time of the PCN issuance, it was registered at my previous address although I had moved out of it some time ago. But it was updated before the claim was processed. Therefore with the law about DVLA access permitted only once, how will the judge see it? Obviously I was not aware that the case was still active behind the scenes otherwise I would have updated PCM or Gladstones about my new whereabouts.

with regards to dates:
PCN was issued in April 19
Trace made contact in Jul 19
CCJ in Nov 19

Also when it comes to defending in court, I have jotted down a few generic points reading through the threads. Do I stand a chance to base my claim on the following? Appreciate your help in reviewing

1. Claimant has obtained details of the vehicle for which I am the Registered Keeper, and used those details to make a claim for a private “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. If the Claimant can evidence that the alleged incident relates to a vehicle for which I am the Registered Keeper, 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. 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.

3. A requirement of the Protection of Freedoms Act 2012 is that 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

4. 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 to sue for any damages or trespass

5. The 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

6. Claim amount of £262 includes additional charges which are non-recoverable under POFA2012

7. No contract with the claimant: Any contract must have offer, acceptance, and consideration both ways. There would not have been a 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 PCM ltd.

Do I have enough to get a favourable judgment?

Thank you for all your help!

henrik777

Trace made contact in Jul 19
CCJ in Nov 19

But when were court proceedings started ?

Le_Kirk

The "no loss" argument is a non-starter. You have some good points in there but it needs to be put in the format shown in the NEWBIE sticky post # 2 example defences (and there are 17 of them) and all defences are written in the third person. Additional (spurious) costs are an abuse of process and more ammunition can be found for your defence (or your Witness Statement - if preferred) by searching for a thread by beamerguy using the Search this Forum facility and Abuse of Process as keyword(s).

Confusedbylaw

i don't know when the court proceedings started as I wasn't sent any letters. I am assuming here they were sent to my previous address as it was my registered address at the time of PCN issuance

henrik777

Confusedbylaw wrote: »

i don't know when the court proceedings started as I wasn't sent any letters. I am assuming here they were sent to my previous address as it was my registered address at the time of PCN issuance

It's an EXTREMELY important point. Call the court and ask.

Confusedbylaw

Date of service was 12/10/2019 which is when letters were sent to my address. The court agent on the phone said date of issue was 5 days prior to that which means 7/10/2019

The_Deep

[FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP after the election, or to all likely candidates now, it can cause the scammer extra costs and work, and often, if they know an MP is in the loop, they will cancel the charge..

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.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT]