County Court Judgement Received

Blue1133

In an ideal world I woudn't accept that, and was prepared to go all guns ablaze on it, however, the prospect of another year with the CCJ is so prohibitive.
The court is closed, just checked that, no staff to deal with County Court matters according to the tracker, and no video link/telephone hearings I assume as have not heard anything relating to that.
Thing is - the WITH consent order received needs to be signed by both parties, however how can I submit this/file to court with just my signature?
Re the defence, it had what I can describe as an out line summary though no specific defence was filed, though as I have that to hand can post a new one if that is required.
Also - am I open to claims for costs on this?
In response to another post - yes £255 was paid to the county court to set aside without consent. I am assuming the solicitors are asking for payment on the new £100 to set it aside now with consent,

nosferatu1001

You dont. Thats why THEYRE asking YOU to sign it and send to them, and pay them £100 so they can pay the court. 
As ive said, thats a terrible order, as it means you wil have paid £355 total and wont get any of it back, g'teed. 
You cant pay the CCJ and then claim it back through scc, thats not possible. 

D_P_Dance

You cant pay the CCJ and then claim it back through scc, thats not possible.

I do not understand, why not?

nosferatu1001

Because you cant sue in court for a judgement ordered by the same court.
It would be an OBVIOUS abuse of process.

D_P_Dance

I am sure there must be ways round this.  The claim would only be lodged due to the Unprecedented  times we find ourselves in.  .I do not believe that the system is as inflexible as you think it is.  I worked as a Civil Servant for nearly 40 years, I know from experience that senior CSs have considerable amount of latitude to bend the rules and apply common sense where it is appropriate.  Have you not read my signature?  

nosferatu1001

No.
Theres a proper route for this. Unless you can show a document stating that the normal courts process has been obviated, please, stop. 
A claim against them, for payment of a CCJ (which itself doesnt actually result in the CCJ being removed), would be an abuse of process. 
This opens up the claimant to costs being assessed against them, as (rightly) the CCBC should ensure this is either not accepted, or it would be struck prior to allocation. 
THere IS a process for this, which will cost around £300 - assuming about £180 for the transcript. 

Blue1133

DEFENCE

Preliminary
1. The claim form was not served at the defendant’s current address despite credit and driver information being up to date. The Defendant was not aware of the Default Judgement until the evening of xxxxxxxxxx when prompt action was taken by the Defendant to set aside. The Claimant’s representatives (xxxx) held the correct address on file and so either knowingly posted the documentation to an old address, failed to perform a trace for the Defendant to find the current address, or failed to serve any paperwork to the defendant as required.

2. The Particulars of Claim lacks specificity, are vague, and are contradictory. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an amended Defence should the Claimant add to, or expand their Particulars, or make any additional assertions at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
3. It is admitted that at the material time, the Defendant was the registered keeper of vehicle registration mark xxxxxx which is the subject of these proceedings. The vehicle was insured with xxxx, and the Defendant had consent for any other insured and appropriately licensed drivers to drive the vehicle.

3.1 The Defendant was resident at xxxx at the material time and had permission to park two vehicles on the grounds.

4. The signage at xxx is sparse, with small wording, is located in unreasonable locations, and is defective and misleading. This is an attempt by the Claimant and their Representative’s to unreasonably target and harass law abiding tenants, residents, and motorists for profit.

4.1 At around the time of the alleged parking charge, there were maintenance works being carried out to the parking bays, this severely limited parking options for a period of around six to eight weeks, as the bays were being repainted and amended by xxx xxxx Management, the painting took place over this period. Many bays were out of use at the time until works were completed and paint dried, these works on occasion over-ran due to bad weather or other unspecified reasons. Many bays were out of use at any given time, garage areas were unavailable due to residents agreeing to share parking areas temporarily, and residents in the vicinity of works had no choice but to park in alternative locations at express permission of xxx xxxxManagement. At this time, xxxx Parking unreasonably targeted residents with menial, trivial and harassing ticketing of resident’s cars.

4.2 It is clearly stated by xxx xxx Management that anybody visiting private properties can park in a ‘V’ bay, with no mention of charges or permits needed.

5. The Claimant’s representatives have stated to the Defendant in an email dated xxxxxxxxxx ‘you are not the named individual we were asked to pursue in this matter’. The claim should therefore be struck out due to this fatal error.

6. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
6.1. The Claimant provided or served no evidence or court paperwork whatsoever (in pre-action correspondence or otherwise) nor for that matter any evidence that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of xxxxxxxxxxxxx, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant bay, as long as it is a non-commercial vehicle, and is roadworthy, ownership of vehicle does not affect this, there is no expectation or requirement of the user of the vehicle to display a parking permit. A witness statement will be provided as evidence that prior permission to park had been given.

7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

8. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

Blue1133

Would appreciate a review of the above draft, many thanks in advance.

Coupon-mad

It WILL NOT be another year before the CCJ can be set aside.  They are winding you up.

Normally we use the new template defence (it's new so not in the NEWBIES thread yet).  Search the forum.  Takes just half an hour to edit the red bits to suit your case, and you can put in your specific details and facts in #16 and #17.

However, forget a defence at the moment and give this a shot with the court and stop trying to dance to Gladstones' tune!  You already have a N244 in and so YOU have the power to put in your own Draft Order!  Why not?

What I would do is this (unless resident 'parking CCJ set aside' expert henrik777 says otherwise):

Email the local court and refer them to your previous £255 paid and N244, to set aside an unfair CCJ regarding a claim form that was never served.   Attach proof that you live at (new address) if your WS didn't cover this.  Then state:

Given the wrong address was used by the Claimant you are aware that this is a mandatory set aside situation, however, the likelihood of a hearing in person at the moment has clearly been removed. 

As such, you now wish to amend your N244 to be taken as a 'non-hearing' application, but you do ask that steps are taken to ensure swift justice takes place and you ask the court for Directions, in view of the following.

To expedite the matter you have been asking the claimant's solicitor (who are fully aware that the Claim was sent to an old address and that this falls within a 'mandatory' set aside scenario) to agree to a set aside 'with consent'.  They have indicated their agreement and that email trail is attached.

However, thus far, they have been unreasonably asking for £100 so that THEY can apply with a new N244 - notably 'on their terms' which you do not accept because their terms (see attached email) fail to reserve your costs and expects you to pay another £100 when your already-paid £255 already covers a set aside, and it also expects you to be able to file and serve a defence, (effectively 'blind & with two hands tied behind your back') despite not having seen any contract (sign), or evidence, or photos of the alleged breach, or breakdown of the costs, or even a claim form.

In view of the Claimant's agreement and intention not to oppose the set aside you ask the court for Directions and to consider this set aside without a hearing/with consent of both parties. 

As such, you have created the following draft Order (head it up the same as Gladstones did, but I suggest like this):

Re claim xxxxxxxx DRAFT ORDER
UPON reading the Defendant's initial N244 application dated xx/xx/xx (you add the date here) and the Defendant's subsequent email sent during the Covid_19 lockdown at a point where hearings in person are not taking place, and having regard to email evidence that the Claimant's solicitor has indicated their agreement to a set aside 'with consent' as a result of communications between both parties having established that service of the original Claim was defective and thus there is 'good reason' for the court to set aside the judgment, IT IS ORDERED THAT:

1.  Judgement dated xx/xx/2019 be set aside
2.  Entry to be cancelled and removed from register.
3.  Claimants do serve to the Defendant a copy of their claim form accompanied by further/full particulars of claim, including photographic evidence of the alleged parking contravention and the signs that is alleged to have been in place at the location on the material date.  This to be served to the Defendant by xx/05/2020, with a copy of the further/full particulars being filed with the court on the same date that the Defendant is served.
4.  Defendant do file and serve their defence within 14 days of receiving the documents in (3).
5.  Having complied with (3) and (4) respectively, both parties must then await further Directions regarding the hearing of the claim itself and the deadline and requirements for both parties to file and serve witness statements, exhibits and all evidence upon which they intend to rely.
6.  Costs be reserved. 
7.  In view of the N244 application being dealt with summarily, the Court to refund £155 of the £255 fee already paid and the application be amended to, and proceed as, an uncontested 'non-hearing' application.
8.  Any party affected by this Order has a right to apply to have the Order set a side, varied or stayed. A party wishing to make an application must send or deliver the application to the court to arrive at the court office 7 days from the date of the service. No court fee will be payable.
Dated xx/xx/2020 (leave this date like this).
------------------------------

henrik777

I'm not sure about attaching details of "negotiations to be honest.

I'd be asking for a telephone hearing (and hope to get it without a hearing if a judge sees it and sees no need as it's so obvious they just set aside pronto)

Claims wasn't served, set aside please. Here's the evidence they knew. here's case law if you need it. Costs please. That's pretty much your main argument.