Just discovered CCJ on file - can probably get original ticked cancelled - what to do about CCJ?

henrik777

There are 2 ways to set aside a default judgment. (or 4 depending on your point of view.)

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13#13.2

Cases where the court must set aside judgment entered under Part 12

13.2  The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

(c) the whole of the claim was satisfied before judgment was entered.

A contested application under that rule, or a consented application under that rule.



Or

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13#13.3

Cases where the court may set aside or vary judgment entered under Part 12

13.3

(1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

A contested application under that rule, or a consented application under that rule.



Now it doesn't take Einstein to work out your prospects of success are better under 13.2 as if you fall under this rule the court must set a judgment aside. However the scope is narrow.

Further i always encourage people trying MUST set aside to have a fallback position under 13.3.


You have much larger scope under cpr 13.3 but the rules are more stringent. One of the stringent rules is considering that you acted promptly, which is over and above the other requirements. Promptness is a matter for the court and is clearly more important if you cannot reach consent with the opponent.


Some judges may gave only 2/3 weeks, others more. So you pretty much need to assume the worst or hope for the best.

Chucky1000

henrik777 - thank you for this information - have read and understood about the promptness.  Have also just discovered I needed to contact Northampton for details, not local County Court in Plymouth (only discovered after hours of trawling through posts). So now have basic details from them:
Particulars of Claim

THE CLAIMANT'S CLAIM IS FOR THE SUM OF       £100.00 BEING MONIES DUE FROM THE            DEFENDANT TO THE CLAIMANT IN RESPECT OF A    PARKING CHARGE NOTICE (PCN) ISSUED ON        25/11/2015 (ISSUE DATE) AT 10:19:17 AT       JACK RABBIT PLYMOUTH                         .                                            THE PCN RELATES TO  xxxx                    UNDER REGISTRATION xxxxxxxx.                  THE TERMS OF THE PCN ALLOWED THE DEFENDANT   28 DAYS FROM THE ISSUE DATE TO PAY THE PCN,  BUT THE DEFENDANT FAILED TO DO SO.           DESPITE DEMAND HAVING BEEN MADE,             THE DEFENDANT HAS FAILED TO SETTLE THEIR     OUTSTANDING LIABILITY.                       THE CLAIM ALSO INCLUDES STATUTORY INTEREST   PURSUANT TO SECTION 69 OF THE COUNTY COURTS  ACT 1984 AT A RATE OF 8% PER ANNUM A DAILY   RATE OF 0.02 FROM 25/11/2015                 TO 13/09/2018 BEING AN AMOUNT OF             £20.48.                                      THE CLAIMANT ALSO CLAIMS £60.00              CONTRACTUAL COSTS PURSUANT TO                PCN TERMS AND CONDITIONS.

Still trying to get through to someone at ex employer (as it was works car park & staff & customers allowed to park for free) but having difficulty due to lockdown.  

nosferatu1001

The employer can not possibly help right now 
You're not trying to defend the underlying charge. You're asking a court to set aside a judgement they made. The employer cannot do ANYTHING about that 

focus on productive elements. Getting. A statement that the employer should have cancelled this or whatever reason they're involved is for far, far later, and only matters if you get the side effect 

Chucky1000

Thanks for your comments. Really, really struggling (and beginning to panic) I'm afraid despite hours and hours of reading posts, but not wanting to sound ungrateful or totally stupid (which I am not!). I have read and re-read the newbie's post etc and 10's of threads but just end up going round in circles.

Should I/my son be contacting PPS to ask for their consent to a set aside - Legal Beagles says yes but advice on here seems to say otherwise? If so, how do I go about that? What would I need to write to them? Do I have to draw up a full defence to send to them?

I realise we also need to work on the N244 but despite repeated searching on here for 'draft order' '6 point draft order' etc nothing comes up and can't find anything, and not sure at all how much detail needs to go into section 10 (what evidence I'm going to rely on). Is there a template anywhere? 

henrik777 - I don't think we can argue a set aside under 13.2 as no acknowledgement of service was sent or defence entered due to knowing nothing about the court case, unless I'm misunderstanding, so would have to come under 13.3. I really want to get the N244 done but not sure how much information needs to go on it, & if I contact PPS to ask for consent to set aside I will have to give them a reasonable amount of time to reply, thereby pushing the time on. We're up to day 7 since discovering the CCJ now.

nosferatu1001 - I was hoping the ex-employer's legal department would step in and deal with the set aside to help under the circumstances.

nosferatu1001

I doubt they would, to be honest. Its not their issue and theyd be unwise to directly help. Costs. 
You need
- the form completing. Instead of saying "section 10" you could tell us precisely what that is asking you to do, to save usall individually going and finding a N244 to check. 
- a witness stateemnt that supports why you shoudl get the set aside. 
You CAN GET a set aside under CPR13.2 
You knew nothing because they failed to serve it to the right address, correct? Im sure youve been told this - they needed to confirm the address they used was a good one, before filing the claim. 
You ALSO use CPR13.3. Any other good reason, which means you need...
- a defence to the underlying clami
You also need a draft order. This is its own document. It has 6 points in it because it has 6 bullets. 

Le_Kirk

You have to search for six-point draft order posted by @Coupon-mad and you will find something like this -

DRAFT ORDER
IN THE COUNTY COURT AT

---

XXXXXX XXXXX LIMITED (Claimant)
And

---

(Defendant)

District Judge

---

UPON reading the Defendant's application dated

---

and the annexed witness statement of

---

dated

---

IT IS ORDERED that:
1. The default judgment dated [date]

---

be set aside.
2. Costs to be reserved.
3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4 pm on [date] 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 on [date].
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. That all enforcement be put on hold pending the outcome of the application.

henrik777

The employer can not possibly help right now 

Why not ? If they want to they can pay the fees and/or smooth the path to consent, prepare the documents etc etc

henrik777 - I don't think we can argue a set aside under 13.2 as no acknowledgement of service was sent or defence entered due to knowing nothing about the court case, unless I'm misunderstanding, 

You are misunderstanding.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13#13.2

Cases where the court must set aside judgment entered under Part 12

13.2 The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied







Conditions to be satisfied
12.3

(1) The claimant may obtain judgment in default of an acknowledgment of service only if –

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12#12.3




The relevant time for filing an acknowledgement of service

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part10#10.3

The period for filing an acknowledgment of service
10.3

(1) The general rule is that the period for filing an acknowledgment of service is –

(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and

(b) in any other case, 14 days after service of the claim form.

(2) The general rule is subject to the following rules –

(a) rule 6.35 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33);

(b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and

(c) rule 6.37(5) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).



If the claim form was not served (or validly served as some may put it) the time limit for acknowledging service has not begun. If it hasn't begun it can't have expired. If it hasn't expired that is a mandatory set aside.



This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016)

Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgment of service only if (a) the defendant has not filed an acknowledgment of service or a defence and (b) the relevant time for doing so has expired (my italics). I accept Mr McLaren's argument that, when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgment of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).



I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgment of service when "any of the conditions in rule 12.3(1)…was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.
This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all.

CPR 6 deals with service.

As I did not give an address to the claimant at which i could be served, primarily because I was not asked, CPR 6.9 applies.

CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."

The claimant, having not obtained an address directly from myself, and having obtained an address from a 3rd party quite some time ago and received no response, did not have the requisite knowledge nor perform the requisite "reasonable diligence" required to find my correct address in order to serve the claim form.

In Collier v Williams [2006] 1 WLR 1945 (CA) LJ Dyson said

"What state of mind in the server is connoted by the words "last known"? … As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word "known". In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, i.e. knowledge which he could have acquired exercising reasonable diligence. We arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments."

Whilst these comments were obiter they were given further credence by

HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)

In Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012) it would appear that obtaining the information from a source that an individual is required by law to keep updated is adequate knowledge. However, i would submit that it is incumbent to have recent knowledge and not outdated knowledge as HHJ Hacon put it in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

"However I am in any event not persuaded by Ms Michaels on this point. The logic of her submission is that a claimant must conduct his inquiries into a defendant's whereabouts on the very date on which the step required for service within the meaning of CPR 7.5(1) is carried out, e.g. posting the documents. That seems to me to be an unnecessary burden and I doubt that it is what the Court of Appeal had in mind in Collier v Williams. I take the view that if a claimant has carried out inquiries with reasonable diligence as to the defendant's last known residence before that date and on that date it was objectively reasonable for the claimant to believe that the defendant's residence remained unchanged, then on that date it is still the defendant's last known residence for the purposes of service by that claimant. Of course the longer the delay between the inquiries and the date of the step required for service the harder it will be for a claimant to establish that there was good service.

In the present case MBGB's inquiries were sufficient to give it actual knowledge on 8 November 2012 that Mr Burton lived at 23 Irvine Place (which he did). No reason has been advanced as to why MBGB should not reasonably have believed on 12 November 2012 that he still lived there. In my view his last known residence on that date was still 23 Irvine Place so far as MBGB were concerned.

The current CPR 6.9 (3)

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

 (4) Where, having taken the reasonable steps required by paragraph (3), the claimant –

(a) ascertains the defendant’s current address, the claim form must be served at that address; or

(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is –

(i) an alternative place where; or

(ii) an alternative method by which,

service may be effected.

(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.

(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant –

(a) cannot ascertain the defendant’s current residence or place of business; and

(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).”



 I submit there can be no  "reason to believe" as per cpr 6.9(3)  means that (xxxx) should follow the procedure mandated by cpr 6.9.

These steps are 

3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –

(a) ascertains the defendant’s current address, the claim form must be served at that address; or

(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is –

(i) an alternative place where; or

(ii) an alternative method by which,

service may be effected.

(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.

(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant –

(a) cannot ascertain the defendant’s current residence or place of business; and

(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).



Cpr 6.9(4) is a mandatory requirement Sajid -v- Nuur (Central London County court 30/7/18) (xxx) it is believed (xxx) has not performed such.

I would conclude that a set aside is mandatory under CPR 13.2 due to the claimants incorrect service to an address that was no longer lived at.

Put simply, if you can convince the court service is defective then the court MUST set aside under 13.2.

(you're head is probably mush if you read all that. read it a few times and it'll start to flow)

Chucky1000

Hi, 
Quick recap - son had PCN  in 2015 at place of work where he was entitled to free parking (and parked there for free every day he worked). He moved house three times since 2015 and changed jobs twice. Discovered CCJ when he received BW Legal letter recently. He's a front line worker & working every hour so I'm trying to do this legwork for him.
Have drafted a witness statement to accompany the N244 - the second part is mostly copied from Coupon-mad's post as a supplement to WS.  Any relevant comments welcomed please plus a couple of questions at the bottom.

IN THE XXXXXXXXXX COUNTY COURT

Claim No. 

BETWEEN:

Claimant

– and –

Defendant

_______________________________

WITNESS STATEMENT OF

_________________________________

I , xxxxxxxxxx of xxxxxxxxxxxxxxxx, being the Defendant in this case will state as follows;

This is my statement to support my application dated xx May 2020 to:

1. Set aside the Default Judgement xxxxxxxxx dated xxx October 2018 as it was not properly served at my current address.

2. Order for the original claim to be dismissed

3. Order the Claimant to pay the defendant £255 as reimbursement for the set aside fee

1. DEFAULT JUDGEMENT

1.1 I learnt of the existence of this claim on 22 April 2020 when I received a letter from BW Legal requesting payment of the judgment detailed in paragraph 1 and I subsequently checked my Credit File. 

1.2 I understand that the Claimant has obtained a Default Judgement against me as the Defendant on xx/10/2018. I understand that this Claim was served at MY OLD ADDRESS (xxxxxxxxxxxxxxxxxxxxxxxxxxxxx) and not served at my current address (xxxxxxxxxxxxxxxxxxxxxxxxxxxxx) where I had moved in April 2018. Confirmation of this will be provided at any set aside hearing, in the form of utility bills and a Council Tax bill from Devon County Council. 

1.3 I have never received any previous documentation from the Claimant in this matter and I was never able to properly challenge the Claimant’s claim. Further I put the Claimant to strict proof that they did post such communications to the Defendant’s current address.

1.4 I have never received any correspondence and at no point prior to 22 April 2020 did I have any contact with the claimant.

1.5 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

1.6 The claimant was able to obtain my correct and current address after 8 October 2018 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 pursuing the court order but only decided to update their information after it would be too late for me to defend the claim.

1.7 I submit that by the virtue of the Claimant sending the letters to my old address, I was not afforded any method by which to appeal, nor any opportunity to get this charge cancelled by the landowner/leasehold business, which I would have done was I aware of the charge.

1.8 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 DISMISSING THE CLAIM

2.1 I learnt from the Particulars of Claim that this Judgement relates to a Parking Charge Notice issued on xx/11/2015 in a car park at xxxxxxxxxxxxxx in Plymouth.  

2.2 On that date I was employed by the xxxxxxxxxxxx as Assistant Manager and was entitled to free parking in the car park. I parked there on every occasion I worked and, as was the case for all staff and customers to the establishment, was not required to pay for parking. I was allowed the right to park without payment by the leasehold business, my employer. Therefore I was not in breach of any parking conditions as an express permission to park had been granted to the Defendant by the leasehold business.  

2.3 The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

I.    Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

II.  The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

III.  Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim

IV.   Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

(a). This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

(b). In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

(c). At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

(d). At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

The POFA 2012 and the ATA Code of Practice are against this Claim

V.   The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

(won't fit in one post - had to split it)

Chucky1000

The Consumer Rights Act 2015 ('the CRA') is against this claim

VI. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

(a). In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

(b). That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

(c). In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

i. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in the Beavis case. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

ii. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

iii. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:

(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).

(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.

(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

iv.   At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

v.   A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

(d). Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

(e). The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

VII. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

 (a)The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

VIII. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

IX. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

X. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

On 29 April 2020 I made a written request to the Solicitors inviting them to consent to set aside the judgment due to the above reasons.

The Claimant did not respond to my request / turned down my request.

I therefore respectfully request that the Court sets aside the judgment and dismisses this claim.

Statement of Truth

I believe that the facts stated in this witness statement 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.

Signed: ________________________________

Dated: ________________________________

Although I have spent hours searching through threads here I have found it very difficult to find things that people point to - the search facility seems to not work very well.

So - when sending the N244 I will also send 6 point draft order & witness statement. Could someone just clarify please:

1. Do I also need to send an outline defence at this stage and how should that differ from the WS?  

 2. If I do need to send an Draft Defence what should it look like? (Have searched but can only find examples of complete defence) LegalBeagles example of Draft Defence is a very short bullet point doc. Is that what I need or do I need to have a comprehensive defence ready to go now plus all corroborating docs? 

3. Does anyone know if the N244 etc can be submitted by email? Can't find any instructions on the court website but assume would have to ring up to make payment first.

Thanks in anticipation for your time & help.

Johnersh

Jeez that is FAR too long. A busy judge just really won't want to be bothered with it. 

There are 3 points:
*what are you asking for?
*why?
* what rule do you rely on?

You want a set aside, because the proceedings were never served properly.

Because the claim was issued in sept 2018, long after the parking event it was an erroneous assumption that you'd still live at the same address. The steps taken to locate you and to enforce the judgement could and should have been taken pre-issue to ensure that the claim was served properly. Whereupon you would have filed a defence.

The civil procedure rules are cited above. 

Don't pad good arguments with generic points, when this is clearly defensible if it comes to that.

Do include a paragraph explaining that you were a whitelisted car as an employee. Whilst it should be argued that set aside is mandatory because of failed service, you should aim to address the fallback position - that there is a defence. That doesn't mean you need to file a defence as well.