Surprise CCJ - please help!

123MrsT

Thank you so much henrik777 - I've been reading a lot of your responses as suggested further up and they have been really helpful. 

The claim papers were sent to the address my car was registered to at the time which was my parents - ironically as I was moving around a lot with work I thought keeping some things there would mean I was less likely to miss post! I always updated my insurance as to where I was keeping my vehicle but to be honest didn't understand the importance of updating the V5.

The only comms I have had were the original notices which I found over 6 months later when I visited home and my Dad has found the claim papers today when I've asked him to look, and that took some searching! 

I was worried about the judge's perception of it being served to my parents' address - unfortunately it never used to be a problem as if I got post they'd let me know, but my mum has not been very well for a couple of years now, this and other family circumstances mean that as I don't get post there generally, any post for me would just be assumed junk mail and put in a pile and forgotten about. I'm not trying to create some kind of sob story / excuse here, it's just the truth. I wasn't overly concerned about this as all of my banking and things are online and when we bought a place over 18 months ago I thought I'd changed everything. 

I was thinking about being factual in that I didn't receive the court papers as they were served to a previous address and here is evidence of my address now. If the judge asks of course I will be honest that it's my parents' address but try to explain that there are extenuating circumstances which do mean even if they were delivered here I wouldn't have received these papers before the date. Do you think that this is the best approach or should I avoid any risk and see if they will set aside with consent? 

Sorry for all of the details, I just wanted to add some context as I am genuinely not trying to dodge anything I owe here.  

nosferatu1001

You won't be asked
you will need to explain it up front. 

That the claimant took NO steps to ensure the address they used was correct. 

henrik777

The only comms I have had were the original notices which I found over 6 months later when I visited home and my Dad has found the claim papers today when I've asked him to look, and that took some searching! 

I take it you just ignored the original notices you found after 6 months ? (i.e. you made no contact with them giving a new address ?)

123MrsT

Thank you for coming back henrik777.

I didn't respond to them as these were the only communications I found, so naively thought as that much time had passed with nothing further that this had been dropped.

When starting to draft my WS I have not included the paragraph about no prior communications as part of the reason I am seeking this to be set aside. Is this something the judge may question when looking to grant a set aside or will they focus on the fact that I was not served the claim at my current address so didn't have an opportunity to defend?

From the claimant's perspective, they had no correspondence from me at my previous address and at the time of issuing the claim I had been in my current address for over 12 months. 

nosferatu1001

They had no contact from you at all, should be the main part. They at no time had reason to believe that the address they had would constitute good service. 
you also need to produce a defence to the underlying charge. This is completely possible. Failing to do so means you close off a CPR13.3 argument for set aside. 

123MrsT

Thank you very much for all of your help so far – I really am so very grateful for this forum! I have not been able to sleep properly these last few days worrying about the worst-case scenario of losing my professional memberships / career I’ve worked years for!

I really cannot stress how much I would have replied had they served the claim to my correct address as I know the potential impact of a CCJ! I hope this is enough to evidence this, that I requested the set-aside promptly on discovery and that I have a good enough defence for dismissal of the claim!

I have been doing a lot of research these past few days and have drafted my initial witness statement. Please could someone could have a look through and answer my questions based on their experience.

 

WITNESS STATEMENT

I am XXXX and I am the defendant in this matter. This is my supporting statement to my application dated XX April 2020 requesting to:

a. Set aside the default judgment dated XX January 2020 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 dismissed.

DEFAULT JUDGMENT

 

1.1. I was the registered keeper of the vehicle at the time of the alleged offence.

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on XX January 2020. I am aware that the Claimant is XXXX, and that the assumed claim is in respect of unpaid Parking Charge Notices from the XX, XX and XX February 2018 at my then residence XXXX. I contest this charge for the reasons outlined in Part 2 of this defence.

1.3. The claim form was not served at my current address and I thus was not aware of the Default Judgement until 27th April 2020 following a notification of an automated credit report update; as found in Schedule (X)

The address on the claim is XXXX. I moved to my current address at XXXX on the 16th November 2018. In support of this I can provide a scanned copy of my mortgage agreement, alongside a council tax and utility bill; Schedule (X)

1.4. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.4.1 I discovered a CCJ was lodged onto my credit file on the 27th April 2020.

1.4.2 On 27th and 29th April I contacted the County Court Business Centre to obtain relevant information relating to this default judgement; Schedule (X).

1.4.3 On XX April 2020 I have wilfully submitted my case in order to set-aside this judgement and fairly present my case.

1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

1.6. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence despite having 12 months to establish an address. This has led to a defective service and an irregular judgement.

1.7. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses."

The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.” Furtherance to points raised in 1.3 above.

1.8. Considering the above I was unable to defend this claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

ORDER DISMISSING THE CLAIM

 

2.1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

 

2.2. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on [DATE]. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

 

(For referece on this thread only)

Particulars of Claim

THE DRIVER OF THE VEHICLE WITH REGISTRATION  XXXX (THE 'VEHICLE') PARKED IN BREACH OF  THE TERMS OF PARKING STIPULATED ON THE       SIGNAGE (THE 'CONTRACT') AT XXXX, ON 02/2018, 02/2018,  02/2018,  THUS INCURRING THE PARKING      CHARGES (THE 'PCN'S'). THE PCN'S WERE NOT    PAID WITHIN 28 DAYS OF ISSUE. THE CLAIMANT   CLAIMS THE UNPAID PCN'S FROM THE DEFENDANT ASTHE DRIVER/KEEPER OF THE VEHICLE. DESPITE    DEMANDS BEING MADE, THE DEFENDANT HAS FAILED TO SETTLE THEIR OUTSTANDING LIABILITY. THE   CLAIMANT CLAIMS                              £100 PER PCN, £60.00 PER PCN CONTRACTUAL     COSTS PURSUANT TO THE CONTRACT AND PCN TERMS AND CONDITIONS, TOGETHER WITH STATUTORY      INTEREST OF £65.08 PURSUANT TO S69 OF THE    COUNTY COURTS ACT 1984 AT 8.00% PER ANNUM,   CONTINUING AT £0.11 PER DAY.                        

 

 

2.3. The Particulars refer to the material location as xxxx. During this period, the Defendant held legal title under the terms of a tenancy agreement, to Flat No. XX at that location and the associated allocated car parking space; (Schedule X).

 

2.4. The underground car parking area contains allocated parking spaces demised to some residents. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

 

2.5. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles which are highlighted in 5.1 in respect of obligations of the tenant.

 

2.5.1

1.     To park a private vehicle only at the property 

2.     To park in the car parking space, garage or driveway as allocated to the premises, if applicable 

3.     To keep any car parking space, garage or driveway free from [list]

4.     To remove all vehicles belonging to the tenant, his family or visitors at the end of the tenancy

5.     Not to park any vehicle at the premises that is not roadworthy or fully taxed 

 

2.5.2. There are no terms within the tenancy agreement requiring tenants to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

 

2.6. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

 

2.7. Further and in the alternative, the signs as at 27th April 2020 (assumed to be present at the date of alleged contravention until full details and photographs are provided by the Claimant to the Defendant as requested under a Subject Access Request) states parking is permitted for ‘Pre-authorised vehicles parked fully within their allocated parking space’; (Schedule X).

 

2.8.1. The Defendant's vehicle clearly was 'authorised' as per the tenancy agreement and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

 

2.8.2. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under an onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of the tenancy agreement, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof).

 

2.9. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

 

123MrsT

2.10. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

 

2.11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £XXX per PCN, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

 

2.12. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

 

2.13. 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.

b. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so they must demonstrate their actual or genuine pre-estimate of loss. I submit that no loss has been suffered by the claimant as a result of any alleged breaches of contract on the part of any driver of the vehicle of which I was the registered keeper. I further submit that any loss to the landowner (which would be the only party able to claim such losses) would be minimal.

c. The Charge is an Unenforceable Penalty: I further submit that the parking charge is nothing but an unenforceable penalty as it is not based on any loss suffered due to the alleged infraction.

d. 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 XXXX.

2.14. 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.

2.15. In order to make informed decisions and statements in my defence as former keeper of the vehicle I will require copies of all paperwork and pictures of all signs from the claimant.

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.

 

 

Questions:

 

1.     Does my argument against the default judgement require any further information?

 

2.     I have edited the template defence for dismissal available in the NEWBIES section and added points I’ve seen on the many other threads I’ve read based on what I think is applicable to my case – have I omitted anything I should keep / is there anything I should add in?

 

3.     The value of the CCJ is £699 for 3 PCNs with the details of charges above. Assume this includes court costs etc. but unsure what these are. What do I put as the total in 2.11 section - £160 x 3 so £420 total plus £65.08 interest? Or is their statement enough to justify these charges?

 

4.     I am going to submit a SAR as suggested in the NEWBIES thread. Just so I’m clear, for a set aside request, am I able to submit evidence after the fact based on a response? Or is this only really needed when you go on to defend if successful in getting it set aside?

 

5.     I have a photo of the PCN on the car showing the permit is visible my husband sent me when he discovered it – I’ve seen another case which was an appeal to POPLA on this forum which was won on the basis that the photos by the PPC cannot prove the permit wasn’t there. This would obviously be the case for my instance as the permit was there and visible but as it had slipped down slightly from the right angle the wipers would probably cover most of it. I had another parking charge from where the permit was not there and there were photos from all angles where you could see the permit was definitely not there. Had this company done the same you’d be able to see the permit in many of the photos, so although I don’t have the PCN / NTK I am confident they won’t be sufficient. I don’t want to weaken my case at this stage by highlighting I did not respond to the PCN on the car. The info I got from the court as to their claim also does not say why I got the PCN but I know it’s the permit as my husband and I never parked outside of my allocated space or the lines.

 

6.     From research on the forum, I am not sure if it would be worth including the below? I have a photo of the sign I got my friend who still lives there to take to check wording but cannot add.

 

One Parking Solution v Ms W - claim number F0HM9E9Z (Lewes County Court, 5/2/2020)

Where the £100 is in the smallest font and the sign contains hundreds of words, because that sign has been found to be 'completely inadequate' by a competent court.

Even in non-OPS cases, as has been observed by previous regular poster IamEmanresu, Lewes Court has helpfully ''signposted the elements needed to question some of the paperwork being hosed out by the likes of QDR/BW/Gladstones'' and it is useful to show that a court MUST consider the CRA 2015 even if the Defendant wins on other points and/or even if a D has not mentioned the CRA.  So posters can use this in any case to help you argue against any PPC.

 

Coupon-mad

Remove 2.13 (b) and (c) about 'no loss', which has no legs since the Beavis case in 2015!

I hope this is enough to evidence this, that I requested the set-aside promptly on discovery and that I have a good enough defence for dismissal of the claim!

It doesn't work like that, uless you get a Judge who sees throught the PPC scam.  The first hearing will ONLY be about setting aside the CCJ, not the claim/defence, not the whole case.

123MrsT

Thank you so much Coupon-mad!
I will remove those points. 

Think your second point may be down to my poor choice of wording - I meant that I hope it showed that I had a reasonable chance of going on to successfully defend the claim. Please can I check that i'm correct in thinking that when requesting a set aside the judge has to think you have a reasonable chance of defending the claim if the set aside is granted? 

The only case i've found for a set aside being denied was as the judge believed that the defendant didn't have a reasonable prospect of defending the case - I think this was one from 2017? So I wasn't too sure on the amount of detail to go into in the defence to evidence this.

Coupon-mad

Yes that's correct, and I can only recall TWO cases (ever, in years & years of posting) on this forum, when a set aside was not granted.    Both were errors by the Judges.

Also, now that we have the core argument about the CRA 2015 test of fairness (see the Template Defence thread) which was only suggested on this forum about 6 months ago, IMHO there is NO lawful reason that ANY Judge can say that a Defendant has no prospects of successfully defending any parking case where the false £60 has been added. 

I feel that strongly about that defence point that any Judge who thinks they can just write off the prospects of a defence, has erred in law (by failing to consider their duty under s71 of the CRA).

Yes add in something about this too:

6.     From research on the forum, I am not sure if it would be worth including the below? I have a photo of the sign I got my friend who still lives there to take to check wording but cannot add.
 One Parking Solution v Ms W - claim number F0HM9E9Z (Lewes County Court, 5/2/2020)
Where the £100 is in the smallest font and the sign contains hundreds of words, because that sign has been found to be 'completely inadequate' by a competent court.
Even in non-OPS cases, as has been observed by previous regular poster IamEmanresu, Lewes Court has helpfully ''signposted the elements needed to question some of the paperwork being hosed out by the likes of QDR/BW/Gladstones'' and it is useful to show that a court MUST consider the CRA 2015 even if the Defendant wins on other points and/or even if a D has not mentioned the CRA.  So posters can use this in any case to help you argue against any PPC.

You'll need to make it make sense to point out that the judgment sets out the steps that a court must take in any parking firm case, including (generally) taking the prolix, template, third-party signed WS with more of a pinch of salt that the actual defendant's more compelling witness account, and applying the CRA 2015 test of fairness in every case, whether the D raises it or not.