Please help!Letter from Newlyn

nikkietoni

I read about that one where her she lost her case and her ticket dated back to 2005 I think it was and the judge gave her a hard time at the set aside hearing and she ended up paying £500 in the end so it does not encourage 

nikkietoni

Yes I see what you mean will put it up later thankyou 

nikkietoni

I have won loads of cases against the parking companies and helped other people with help from here and peppipoo in the past which is great but this just somehow seemed so much harder to understand and things do not usually faze me as I like a challenge but maybe just had a block with this 

Coupon-mad

OK, so you are at set aside stage waiting for a set aside hearing, yes?
While it is quiet, show us what you submitted and we can help you prepare for the hearing.

nikkietoni

Like I said you will probably think it is rubbish but here goes
first bit

IT IS ORDERED THAT:

 1. The default judgment dated xxxxx be set aside on the basis that the Judgment was not

 properly served at the Defendant’s current address.

 2. Costs to be reserved.

 3. Unless the Claimant serves a copy of the claim form on the Defendant by 4pm following 14

 days after the date on which the judgement is set aside 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 following 14 days after the date on which the judgment is set aside.

 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.

nikkietoni

2nd Part
witness statement

WITNESS STATEMENT 

7. I am xxxxxxxx and I am the Defendant in this matter. This is my supporting statement to my application dated  21st February 2020 requesting to: 

a. Set aside the default judgment dated as it was defectively served using an old address. 

b. Order for the claimant to pay the Defendant £255 as reimbursement for the set aside fee. 

c. Order for the original claim to be set aside on the basis that the Defendant has a reasonable defence or to be re-heard at a new hearing.

 

d. I have had no sight of the Parking Charge Notice claim against me 

8. I understand that the claimant obtained a default judgment against me on xxxxxx

However, it was not served at my current address, therefore I was not aware of the county court judgment until xxxxx when Newlyn sent a letter to my current address highlighting the money allegedly owed of £356 and “they were undertaking to gain payment in full of your outstanding County Court Judgment”.

 

9. I have never received any correspondence from the claimant apart from the recent letter from Newlyn on behalf of Horizon, therefore I was never able to challenge the original charge nor the judgment. At the time the CCJ was apparently served I was on the electoral roll at my new address and simple searches should have provided them with the correct address.

I moved out of xxxxxx in xxxxxx and my husband continued living there while the house was sold in xxxxxxx and he states there was never any correspondence regarding a Parking Charge Notice. He arranged to have all mail redirected when he moved from the property.

10. I have never received any correspondence and at no point prior to xxxxxx did I have any contact with the claimant. As Horizon Parking Limited have never received any correspondence from me at any point I believe they should have questioned whether they were actually using an accurate address for me over the last few years. 

On discovering the CCJ whilst reading the correspondence from Newlyn I contacted Horizon via e-mail on xxxxxxx asking under SAR rules for all photographs and data details of the alleged incident and parking charge notice. Up to date I have received no information from them apart from an automatic reply stating “we will aim to respond to your communication within 14 days but certainly no more than 35 days. This is therefore hindering me to defend the parking charge notice as I have no information.

I also contacted the Count Court Business Centre on xxxxxx to find details of the default judgment but I received no real details of the actual alleged incident so I do not know the actual details of why the Parking Charge Notice was given.

11. I believe the claimant has behaved unreasonably by not ensuring they used my correct contact details. According to publicly available information my circumstances are far from being unique. Apparently Parking Companies persistently fail to use correct and current addresses resulting in unnecessary stress for individuals and pressure on the justice system. This being a topical issue: Stephen Doughty MP stated at the second reading of a Parking (Code of Practice) Bill in the House of Commons ….“In some cases information has been wrongly obtained from the DVLA and documents have been sent to the wrong address or to an old address. People are then served with a series of demands and bailiffs letters. I regret to say a number of my constituents have ended up with County Court Judgements which do huge damage to their credit rating and their ability to get mortgages …”

Also another MP Sir Oliver Heald QC MP had stated previously that “It cannot be right that people who are unaware of debts can see their lives ruined by county court judgements. In the digital age we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals rather than simply relying on an old address” and “to better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.”

12. I suggest the claimant did not fulfil their duty or make reasonable enquiries as to my current address before pursuing the court order especially considering they would have had good reason to believe they did not hold my current contact details and the fact I no longer lived at this address.

13. The claimant was able to obtain my correct and current address after the judgment date to make me aware of the money owed but only after such time that a CCJ had been passed. This clearly demonstrates that they were aware that they did not have the correct address at the time of perusing the court order but only decided to update their information after it would be too late for me to defend the claim. If there have been multiple letters sent to me (which I do not know as I am awaiting this information)The Parking Company could have been more diligent in efforts to ensure the correct address to serve to Court.

14. Considering the above I was unable to defend this claim. Therefore, I believe that the default judgment against me was irregular and inappropriate and I respectfully request it is set aside. 

nikkietoni

Part 3

DRAFT DEFENCE

15. I further believe that the original parking charge notice has no merit and should thereforebe dismissed. The claimant is a parking company using ANPR in order to claim and issue parking charge notices which the Claimant believes are due as a result of an alleged breach of contract for parking by a driver. 

16. The claimant has obtained details of the vehicle for which the defendant was the registered keeper and used those details to raise a parking charge notice. I dispute this charge 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 have come into force. 

17. If the claimant can evidence that the alleged incident relates to the vehicle xxxxx  any notice to keeper issued by the Claimant must comply with 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 the Protection of Freedoms Act 2012 wording on the parking charge notices they issue and therefore cannot hold the registered keeper of the vehicle automatically liable for the alleged incident merely by being the registered keeper of the vehicle in question. 

18. A requirement of the Protection of Freedoms Act 2012 is that any notice to keeper must be served within 14 days of the date of the alleged incident. Since I have not received any documentation I submit the Claimant has not complied with the requirements of the Act and therefore cannot claim this charge against me as the registered keeper in any case. 

19. I further submit that the parking charge notice is without merit due to substantial issues in law. This is for the following reasons: 

a. Lack of Standing by Claimant: The Claimant is not 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 claim for any damages or trespass. The Claimant must identify the ‘relevant obligation’ and of the defendant to pay parking charges and the ‘relevant land’ on which the parking is said to have occurred and disclose full particulars and a contract, in order to evidence a claim in law.

b. 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 driver. Therefore, there is no consideration from the driver to Horizon Parking Limited.

20. 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. 

21. In my defence as keeper of the vehicle and inorder to make informed decisions and statements and if required to attend a further hearing the Defendant will require all copies of paperwork letters and documentation and pictures of all signs and cctv footage and full copies of PCN/NTK under SAR.

 

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

Coupon-mad

That's fine as a draft order, but you also need to file & serve a witness statement to support the application, to tell the Judge that you moved house and the Claimant failed to trace you and use a current address (as per other threads).  If you missed that out, then send that to the court and the Claimant (for openness) later this week and use it as an opportunity to prod the Claimant for a SAR.

nikkietoni

I think I repeated myself a few times..
also I have now received the details of the pcn which says the overstay was 25 minutes and photos of the car going in the car park and coming out  

nikkietoni

I thanks... I have put the three sections on separately to make easier reading 
the order
the witness statement 
the defence
would appreciate all help thankyou