Surprise CCJ - please help!

henrik777

You've mentioned defective service but unless you're sending a written argument or doing an oral argument you're relying on a judge knowing that it's defective and the ramifications.

Also, my personal preference, put the defence "the defendant has a real prospect of successfully defending the claim" in a separate document. You're primary submission is defective service. A defence isn't required for that so a separate document makes the application easier to read, or ignored if it's not needed as the defective service argument has won.

D_P_Dance

 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!

How on earth would that be possible?  This is a civil matter in a court where a householder sues a  kitchen fitter for shoddy work, where a plumber sues a butcher for non payment.  Contract Law applies.

I cannot think of any profession, medicine, the Law, accountancy where this would matter one iota.    Perhaps during the Iron Curtain era a Diplomat might  have had to declare it, but it would not  be a sacking offence.  Have you done no research?  This is a piddling parking ticket from an ex clamper.  

123MrsT

Thank you very much Coupon-mad and henrik777.

I have paid the £255 fee over the phone today and am looking to submit my N244 (will post the full 6 point draft order, witness statement and draft defence for review to make sure all is OK before I do).

I do have a couple of questions:

1.  I understand my primary submission is for defective service (13.2). Therefore, on the form where it asks 'What order are you asking the court to make and why?' do I add what I had at the top of my witness statement?

a. Set aside the default judgment dated XX January 2020 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

I ask as the Legal Beagle's template in the NEWBIES thread is in reference to 13.3 (below).  

2. If the judge was for whatever reason unsatisfied by my claim under 13.2, am I correct that I could still request a set aside on the grounds of 13.3 which is where my draft defence and acting promptly come in to play? Is it worth referencing this 'secondary' position in the 'What order are you asking the court to make and why?' section to show I also think I meet this just in case? 
(1) In any other case, the court may set aside 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 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.

Many thanks!! 

123MrsT

Thanks D_P_Dance.
I  am thinking very worse case scenario and do think (hope!) I could challenge it but I'm a chartered accountant so there are rules around membership and CCJs. I work in internal audit for a large international bank and as part of my role I am required to declare as part of an annual certification whether I have a CCJ and in my contract there is wording that this can lead to termination. 
I imagine it isn't completely black and white as this ins't in relation to poor management of credit (indeed, my credit score was 999 before this) but I have read a few 'horror stories' online of people having job offers retracted / employment contracts ended in the financial services industry because of having a CCJ. 
I can't post a link but if you search the guardian article below:

When your credit card debt can become a sacking offence

A County Court Judgment or bankruptcy may be included in staff contracts as a reason for dismissal

Coupon-mad

 If the judge was for whatever reason unsatisfied by my claim under 13.2, am I correct that I could still request a set aside on the grounds of 13.3 which is where my draft defence and acting promptly come in to play? Is it worth referencing this 'secondary' position in the 'What order are you asking the court to make and why?' section to show I also think I meet this just in case? 

Yes, I would word it with a second paragraph  like this:

Even if the court is not satisfied that my case meets the criteria relating to a mandatory set aside due to defective service (13.2), I will say that I also meet the criteria for the CCJ to be set aside on the grounds of 13.3:


(1) In any other case, the court may set aside 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 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.

123MrsT

Thank you so much Coupon-mad!!

I have added this on the N244: 
3. What order are you asking the court to make and why?
An order (draft attached) that the judgment dated 02/01/2020 be set aside because pursuant to CPR 13.2 (a) 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.

Unfortunately you can't extend the box so I have included your wording above in section 10. What information will you be relying on, in support of your application?
Continued from part 3. outlined above: Even if the court is not satisfied that my case meets the criteria relating to a mandatory set aside due to defective service (13.2), I will say that I also meet the criteria for the CCJ to be set aside on the grounds of 13.3: (1) In any other case, the court may set aside 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 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.

I have selected the option for my information to be in 'the attached witness statement' so I hope it is OK for me to use the box for an extension of part 3?

I'll now add my Witness Statement, Draft Defence and Draft Order. 

123MrsT

WITNESS STATEMENT

I am XXXX and I am the defendant in this matter. This is my supporting statement to my application dated 4th May 2020 requesting to:

a. Set aside the default judgment dated XX January 2020 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

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 the attached draft 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 4th May 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 some 12 months to establish an address. This has led to the claim being incorrectly served to an old address 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.

123MrsT

DRAFT DEFENCE 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.

 

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.

 

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’.

 

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. Furthermore, as at 27th April 2020 the signage was in accordance with that found to be ‘completely inadequate’ by a competent court due to the penalty charge (£100) being in the smallest font on a sign containing hundreds of words. Reference: One Parking Solution v Ms W - claim number F0HM9E9Z (Lewes County Court, 5/2/2020).

 

2.10. 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.

 

2.11. 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 per signage at 27/04/2020 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.

 

2.12. 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 £160 per PCN plus interest, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

 

2.13. 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.

 

2.14. 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 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.

2.15. 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.

2.16. 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 at the time the PCNs were issued (xx 02 2020, xx 02 2020, xx 02 2020) 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.

 

 

 

123MrsT

DRAFT ORDER
IN THE COUNTY COURT AT

---

XXXXXX XXXXX LIMITED (Claimant)
And

---

(Defendant)

District Judge

---

UPON reading the Defendant's application dated 4th May 2020 and the annexed witness statement of (stupid question - is this my name here?) dated 4th May 2020 

---

IT IS ORDERED that:
1. The default judgment dated 2nd January 2020 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.

Coupon-mad

(stupid question - is this my name here?) 

Yes.  
That's a really good set of documents, even though you don't actually need to file a defence yet.  Only the stuff that relates to the set aside/proof of moving house, etc.  I am sure your idea of adding hat wording where you suggested o the N244 form wil be fine.

So save your ink by not printing that defence nor appending evidence that relates to the lease/the signs/the Lewes case/the Southampton case, however when you get a set aside hearing you can have all that in your back pocket, so to speak, to assure the Judge that you certainly have prospects of success in defending the claim at a later hearing.