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Questions on Setting Aside CCJ Judgement

edited 30 November -1 at 12:00AM in Parking Tickets, Fines & Parking
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DergolemDergolem Forumite
18 posts
10 Posts
edited 30 November -1 at 12:00AM in Parking Tickets, Fines & Parking
Hi everyone,

I've read through the Newbies thread and I've got a few questions. Here's the situation:

My partner recently received a Claim Form in the post. It was dated before Christmas but didn't arrive until over three weeks after that date. She then received a Judgement in Default letter a few days later. I was planning to help her defend the claim but by the time the Claim Form arrived the 14 day period had passed and she was unable to send an Acknowledgement of Service.

Do you think this makes a good case for having the judgement set aside, given that she wasn't given chance to defend herself? Most of the similar cases I've read about involve a Claim Form being sent to the wrong address which isn't the case here. She received previous correspondence regarding the parking fine but there's nothing she could do without the Claim Form, which didn't arrive until it was too late. And it was over the Christmas period so problems with the post are quite commonplace. I think she's eligible for having the application fees waved so it makes sense to apply anyway but any advice you can give would be much appreciated.

I understand she should include a draft of the defence along with the application, to show the judge she has a good case. The incident took place in a private car park where the ticket machine was broken. My partner tried to purchase a ticket but was unable to. Is this a good line of defence or should I focus on some of the other defences I've seen examples of on this forum? My partner initially tried to appeal via the parking company's website by mentioning the broken machine, which means she probably admitted to being the driver, not just the keeper. Is that a big problem?

Thanks very much for your help. Once I've got the answer to these questions I'll put together a draft application to have the judgement set aside and post it in this thread.
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  • RedxRedx Forumite
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    AFAIK if you (she) can prove it wasnt delivered until 3 weeks after it was sent , when it should have been 2 days , (sent by the CCBC so strange it took so long) then if you pay the £255 set aside fee I believe a judge may reset it, but she might not get the £255 back

    read post #2 of the newbies faq sticky thread where set asides are dealt with

    sometimes being an admitted driver and being honest, plus a first person witness to events on the day , is an advantage , so can be better than trying to hide behind POFA (if the PPC complied with POFA then no point arguing it as keeper anyway)
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
  • BrownTroutBrownTrout Forumite
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    IMO you are wasting your time, unless you get fee examption you wont get that fee back and unless its a large claim i would just pay it
  • henrik777henrik777 Forumite
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    Do you think this makes a good case for having the judgement set aside, given that she wasn't given chance to defend herself?

    Yes.
    I think she's eligible for having the application fees waved so it makes sense to apply anyway but any advice you can give would be much appreciated.

    It is definitely worth it if fee exempt.
    My partner tried to purchase a ticket but was unable to. Is this a good line of defence or should I focus on some of the other defences I've seen examples of on this forum?
    I'd include it but be prepared for a judge to say she should've then left.
    Is that a big problem?

    For keeper liability probably. For other defences such as broken machine, abuse of process etc not at all.
  • Coupon-madCoupon-mad Forumite
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    BrownTrout wrote: »
    IMO you are wasting your time, unless you get fee examption you wont get that fee back...
    Seems they do! No-brainer then, to get it set aside.

    I wonder if any other CCBC Claims were held up like this? Not heard of any.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • DergolemDergolem Forumite
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    Hi again everyone. I've put together a draft statement to accompany my application, complete with an outline of my defence that was mostly taken from an example I found online. I took out a paragraph differentiating the case from Beavis because that was mentioned on the 'irrelevant defences' thread. What do you think? Any advice much appreciated.

    I am xxxx and I am the Defendant in this matter.
    This my supporting Statement in support of my application dated xx/01//2020 to:
    • Set aside the Default Judgement dated December 2019 as it was not properly served;
    • Order for the original claim to be dismissed

    1. Default Judgement
    1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in December 2019. However, the claim form was not served to me in the legally required time period. I was unaware of the claim against me until December 30th when I received a claim form dated December 6th. The claim form was therefore served to me 24 days later than legally required.

    1.2. I intended to defend the claim but by the time the claim form was served to me the 14 day period in which to acknowledge service had expired. I was therefore unable to acknowledge service and defend the claim.

    1.3 On January 2nd I received notice of a County Court Judgement in default. I believe the claimant has behaved wrongfully by not giving me sufficient notice of their claim.

    1.4. 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 for the original claim to be dismissed
    2.1. I am aware that the claim is for an unpaid Penalty Charge Notice (PCN). I contend that I am not liable for the parking charge and the grounds for this are laid out below in in further detail, and in summary are:
    • The ticket machine wasn’t in operation
    • Unclear, ambiguous, inadequate and lack of International Parking Community (IPC) compliant signage
    • No contractual agreement with the driver

    2.2 On the day of the incident the defendant used the car park and attempted to purchase a parking ticket. When the defendant attempted to pay in cash the ticket machine wouldn’t accept any coins, therefore they were unable to purchase a parking ticket.

    2.3. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice. The claimant is a member of the BPA, whose requirements they did not follow. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.

    The signage is inadequate in terms of the following:

    - Lack of clarity and prominence of terms and conditions
    - Illegible text due to font size, density, colour and complexity


    2.4. Photographs of the defendants vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.


    2.5. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to HX Car Park Management Ltd.

    a) HX Car Park Management Ltd is not the lawful occupier of the land
    b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

    2.6. The Protection of Freedoms Act 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 Claimant claims a sum of £261.50 as the amount claimed (for which liability is denied) which includes £97 for unspecified costs. The Defendant 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.

    2.7. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

    2.8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

    Therefore I ask the court to respectfully strike out this claim with immediate effect.
    I believe that the facts stated in this Statement of defence, (date I intend to send) are true.


    Signed
  • BrownTroutBrownTrout Forumite
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    Coupon-mad wrote: »
    Seems they do! No-brainer then, to get it set aside.

    I wonder if any other CCBC Claims were held up like this? Not heard of any.
    No its rather unusual but with fee exemption very very little to be lost, although what exemption she gets is only found out on application
  • DergolemDergolem Forumite
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    Hi everyone. Quick update:

    My partner eventually had the judgement set aside. The initial hearing went very badly. She had a very aggressive judge who insisted she didn't have a good defence. He was ready to throw the case out but after much pleading said he would defer the hearing for now and give her time to produce phone records proving she tried to ring the parking company on the day of the incident. She wasn't able to get those but last week she had a telephone hearing with a deputy judge who said she had a good case and agreed to set the judgement aside no problem.

    I was hoping someone could look over her defence before she sends it to the county court. It's largely the same one I posted before but I've added a whole section from the template in the newbies thread about added costs. Thanks for any help you can give me.

    I have one quick question though. The fee demanded from the claimant on the judgement in default letter is £261.50, but the fee demanded on the claim form is £238.62. Given that the judgement was set aside does the fee revert to the one on the claim form or does it stay the same as the one on the judgement in default letter? I'm unsure which figure to put in my defence. 

    Anyway here's the defence. Thanks again.

    DEFENCE
    1. I am aware that the claim is for an unpaid Penalty Charge Notice (PCN). I contend that I am not liable for the parking charge and the grounds for this are laid out below in in further detail, and in summary are:

    - The ticket machine wasn’t in operation
    - Unclear, ambiguous, inadequate and lack of International Parking Community (IPC) compliant signage
    - No contractual agreement with the driver
    - No legal basis for the sum claimed 

    2. On the day of the incident the defendant used the car park and attempted to purchase a parking ticket. When the defendant attempted to pay in cash the ticket machine wouldn’t accept any coins, therefore they were unable to purchase a parking ticket.  

    3. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice. The claimant is a member of the BPA, whose requirements they did not follow. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.

    The signage is inadequate in terms of the following:

    - Illegible text due to font size, density, colour and complexity. Due to a mix of small fonts and the choice of white text on a light green background the signs are very hard to read even from a short distance (see Appendices A, B and C). 
    - The signs can be easily obscured behind vehicles when the car park is in use. On busy days such as the date of the alleged offence it is impossible to get close enough to read the signs due to vehicles blocking access (see Appendices B and C). 
    - The upkeep of the signage is not maintained rendering some text illegible or difficult to read (see Appendices A and D).

    4. Photographs of the defendants vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.

    5. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to HX Car Park Management Ltd.a) HX Car Park Management Ltd is not the lawful occupier of the landb) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case. 

    6. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

    7. In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme. However, this Claimant is claiming a global sum of £261.50. This figure is a penalty, far exceeding the £85 parking charge in the Parking Eye Ltd v Beavis case.

    7.1. The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty on the Court to consider the fairness of a consumer contract. The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair.

    7.2. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of costs. The sum exceeds the maximum amount which can be recovered from a registered keeper, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’). It is worth noting that in the Beavis case where the driver was known, the Supreme Court considered and referred more than once to the POFA.

    7.3. Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019. Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Appendix E) and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Appendix F).

    7.4. Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made.

    7.5. The Judge found that the claims - both trying to claim £160, with some ten or more similar cases stayed - represented an abuse of process that ‘tainted’ each claim. It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage. That Judgment is appended (Appendix G).

    7.6. The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity. The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided. The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA. 

    7.7. Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.'' 

    7.8. The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long. They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019. Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute. In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for: ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''  

    7.9. In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice. Further, the Particulars of Claim are embarrassing and incoherent, lacking specificity re the location of the event and status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action. There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process. 


    7.10. The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction. The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’ And at [99] ‘‘the penalty rule is plainly engaged.” 


    7.11. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable. The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings set a high bar that other claims fail to reach. Unusually for this industry, it is worth noting that ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out. 


    7.12. This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish drivers nor to present a motorist with concealed pitfalls or traps, nor to claim an unconscionable total sum.


    7.13. In summary, the Claimant's Particulars disclose no legal basis for the sum claimed. This Claimant knew, or should have known, that an exaggerated ‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 ATA CoP ceiling is disallowed under the CPRs, the Beavis case, the POFA and the CRA, The Judge in the instant case is taken to the Appendices, demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum.

    8. For any or all of the reasons stated above, the Court is invited to dismiss this claim.

        Statement of Truth I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.


    Defendant’s signature: …........................................................................

    Defendant’s name: …........................................................................

    Date: …........................................................................


    Appendix A attached: Photograph of signage at the site of the alleged incident.

    Appendix B attached: Photograph of signage at the site of the alleged incident.

    Appendix C attached: Photograph of signage at the site of the alleged incident.

    Appendix D attached: Photograph of signage at the site of the alleged incident.

    Appendix E attached: Order to strike out a similar claim; abuse of process (Skipton).

    Appendix F attached: Order to strike out a similar claim; abuse of process (Warwick).

    Appendix G: Judgment and reasoning for refusal to set aside Order (Southampton).

  • nosferatu1001nosferatu1001 Forumite
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    The amount is the one on the claim form

    any reason not to use the feb 2020 template defence?
    ehat did the court Order you to do?
  • edited 23 April 2020 at 6:15PM
    DergolemDergolem Forumite
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    edited 23 April 2020 at 6:15PM
    The amount is the one on the claim form

    any reason not to use the feb 2020 template defence?
    ehat did the court Order you to do?
     Thanks. I did use a big part of the Feb 2020 defence but I didn't want to change my original defence too much because the judge was happy with it. Would you recommend using the Feb 2020 defence in its entirety and including my own arguments when relevant? Does it matter if I reproduce a template defence almost verbatim? 

    The court just asked me to send them my defence.
  • nosferatu1001nosferatu1001 Forumite
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    Odd, usually you'd be serving both the court and claimant. 

    What's your deadline?
    its up to you what you use
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