County Court Judgement Received

Coupon-mad

So perhaps you emailed from someone else's email address in the family, and they think you are Jack Bloggs instead of Jane Bloggs?

Blue1133

No it's not that

Blue1133

Guys, quick couple of questions before posting WS:

1. Can I send via special delivery to my local court rather than go in person (they require appointments) I am assuming this means the court names on N form will be the local instead of the original CCBC, and also which reference do I use for the claim number? the one on the PoC? and can I annotate 'see attached Witness Statement' in the box rather than copy into the small box on the N form
2. To whom do I send the Set aside i.e must I send to claimant and their representatives as well?
3. Any special fonts or formatting that I need to be aware of? i'm assuming I sign the WS as well?
4. Para 1.6 states I was a tenant and resident, unsure if this assists, as well as para 1.7.2 re ownership of vehicle

Blue1133

Witness Statement

I am xxxxxxx and I am the Defendant in this matter. This my supporting Statement in support of my application dated xxxxxxxxxx to:

- Set aside the Default Judgement dated xxxxxx 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 on the basis that the Defendant has a reasonable defence; or to be re-heard at a new hearing.

1. Default Judgement

1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on xxxxx. I am aware that the Claimant is Horizon Parking Limited, represented by Gladstones Solicitors Limited, and that the claim is in respect of an unpaid Parking Charge from the xxxxx at xxxxxxx. I further contest this charge for the reasons outlined in xxx

1.2. The claim form was not served at the defendant’s current address. The defendant was not aware of the Default Judgement until xxxxxxxxx when conducting a routine credit check on my credit file. The Defendant resided at xxxxxx from xxxx, and moved to a new address at xxxxxxxxx on the xxxxx. Evidence is attached (Item A) of a postal redirection via the Post Office and Royal Mail, ending on xxxxxx. No papers were ever received relating to this claim.

1.3 On xxxxx the Defendant acted promptly by telephoning xxx County Court, is given scant details of default order relating to the claimant namely Horizon Parking, and a telephone number to contact the claimant’s Representatives namely Gladstones Solicitors Ltd. xxx County Court emailed the Particulars of Claim to Defendant.

1.4 After unsuccessful attempts to contact the Representatives on the xx 2019 via telephone, the Defendant emails both Claimant and Representatives on the xxxx xx 2019. x xx, the Claimant’s Representatives advise defendant to contact the Claimant. xxx 2019, the Defendant is advised by the Claimant to contact their Representatives. xxxx, Defendant makes final attempt to discover further details regarding the matter by telephoning the Representatives, highlighting the urgency of the matter, and is advised it may take up to thirty days for a considered response.

1.5. The Claimant’s Representatives (Gladstone’s Solicitors Limited) have behaved unreasonably as they were in possession of the Defendant’s correct address details all along, and a simple trace must have found the defendant. A letter (Item was written to the updated address dated xxxx which is xx days after Judgement. The letter entitled ‘LETTER BEFORE CLAIM’ fails to name any person, client or vehicle in relation to a claim. The letter states an ‘Amount Due’ of ‘0.00’ and contains no other documentation of which it appears to refer to. The letter goes on to state that proceedings ‘will be served on you at the address in the attached Letter Before Claim’. As there were no identifiable persons, vehicles or amounts referred to within this letter, the Defendant was not aware of any pending claims and confuses the status of the claim. On the xxxx, after a phone call initiated by the Defendant, Gladstones referred the Defendant to the Claimant, who have since confirmed there are no other pending claims.

1.6 A Further email communication of xxx 2019 (Item C), addressed to the Defendant from Gladstones Solicitors states ‘you are not the named individual we were asked to pursue in this matter’. This further confuses the matter and the Defendant suggests that the claimant’s Representatives have erred in bringing this claim against the Defendant, a resident and tenant at the material time within the estate.

1.7 Experian Credit reference agency confirms the Defendant’s residency information was updated to the correct address as of xxxx (Item D).

1.7.1 Driver details were updated via DVLA, with replacement licence arriving in xxx (Item E).

1.7.2 Further to this, the vehicle referred to in this claim (xxxxx) was part-exchanged on xxx for a new vehicle, and therefore after this date, the Defendant’s ownership of this vehicle ceased.

1.8 The Defendant has at no time tried to avoid paying for any known debt, and was at all times there to be found by a simple trace. It is submitted that the Claimant should have taken those reasonable steps, and would have known or should have surmised that it was likely that the Defendant was not at the old address, given the length of time from the alleged parking charge and the fact that the Claimant was receiving no reply from the Defendant.

1.9 The Defendant has never received any previous documentation from the Claimant in this matter and was never able to properly challenge the Claimant’s claim. Further, the Defendant puts the Claimant to strict proof that they did post such communications to the Defendant’s address.

2.0. The Defendant believes the Claimant has behaved unreasonably in pursuing a Claim without ensuring they held the Defendant’s correct contact details at the time of the claim, alternatively, they have pursued a claim in error. The information used was xxx year and xxx months out of date.

2.1. According to publicly available information, my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system across the country. This is a topical issue, ex-Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald QC MP on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses." The Minister added

"It cannot be right that people who are unaware of debts can see their lives and finances ruined by County Court Judgments. 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.”

2.2 As per Civil Procedure Rules (CPR) 6.9 (4), that proceedings were not validly served because the Claimant was incorrect in assuming that this was the Defendant’s last known address and did not take reasonable steps to ascertain the Defendant’s current address. This leads to no service, they were not entitled to Judgment and the court must set aside the claim.

2.2.1. The Defendant submits that by the virtue of the Claimant sending the letters to his old address, he was not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented the Defendant from being able to get this charge cancelled by the landowner, a right that he believes existed as an exemption clause in this situation, written into the landowner contract/retailer user manual but a material fact which is withheld from consumers. If the Defendant could have appealed to Parking on Private Lands (POPLA) or had been informed that the landowner could deal with such complaints and cancel charges, he would have done so.

2.2.2. On the basis provided above the Defendant suggests that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

2.2.3 . Considering all of the above the Defendant was unable to defend this claim properly. The Defendant believes that the Default Judgement against him was issued incorrectly and thus should be set aside.

3 Order Dismissing the Claim

3.1 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.

3.2. 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’, the Defendant thus dispute the claim in its entirety as he does not know the wording of the contract nor does he know the means by which the contract was alleged to come into force.

3.3. If the Claimant can evidence that the alleged incident 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 (POFA) 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.

3.4. The Defendant understands Horizon Parking Limited to be a Private Parking Company. 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. If the Claimant has not complied with the requirements of the Act they cannot claim this charge against the Defendant as the Registered Keeper in any case and where said keeper is unable to identify the driver.

3.6 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 submit that the Claimant cannot provide such evidence to prove the driver of the vehicle they claim was involved in the alleged incident.

3.6.1 Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of a car x years and x months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

3.7. For the Claimant to have obliged the Defendant to provide the drivers details at the time of said breach the Claimant would be required to apply for a ‘Norwich Pharmacal Order’, the Defendant is not aware of any such order being made upon him.

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

3.8.1. 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.

3.8.2. 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.

3.8.3. 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.

3.8.4. 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 Horizon Parking Ltd.

3.9. 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.

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

The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

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

Blue1133

sorry for the bump, looking to get this sent off asap so any thoughts greatly appreciated

Le_Kirk

You seem to be half writing a defence and half a witness statement (WS). A WS should be (can be) written in the first person so you can use "I" instead of "the defendant" Since you know the story, it is difficult for "an outsider" to comment on the facts of the case within your own knowledge. If this is a WS in support of your set-aside, you don't need the defence aspect of it, which should be provided when the judgment is set aside and the judge gives a date for the original claim to be heard. You should, of course, have a defence "in your back pocket" in case you are asked at the hearing.

If of course you have been directed to produce a defence as well that is fine. If you leave it in, I doubt it will harm the hearing. You should take out GPEOL in 3.8.2 as this died with the Beavis case.

Blue1133

I guess that rules out the paragraph immediately after as well

Blue1133

Thanks for your response :beer:

Blue1133

i have amended accordingly. Really unsure about the processing side of things i.e can I enter another court name on the N form and the document entitled draft order, and the WS as it is my local? Do I send everything in with the N form? How do I pay to make sure it is accepted! so basic I know, but don't want it to be ignored for not following the correct process

Le_Kirk

From memory there are full instructions on how to complete the N244 and how to pay in a guidance document.