Surprise CCJ - please help!

123MrsT

Just wanted to update this as to my complete surprise, I got an email this morning from the court via my solicitor to say that the judgement had been set aside!!! The deadline was today at 4pm and the solicitor submitted the defence on Friday around 4.30pm so a very quick turnaround. 

The solicitor agreed with the point that many of you had made on here, including Jonersh, that this should have been a mandatory set aside but said let's give the court the defence they've asked for to get this set aside and if any issues can then appeal based on this.

In the end I got nothing from the letting agent or landlords (I didn't get any response at all from the agent and the landlord came back to say they'd look into it then heard nothing further when I chased) but luckily this was not needed as the defence was based on two areas: 

1. The solicitor obtained the original lease through the land registry between the company that owns the leasehold and the landlords from when they bought the flat. The key things noted in the lease used in the defence were:
- the terms of the lease could not be altered or enforced by a third party;
- the cost to run and manage the car park including any associated costs for enforcement (including solicitor's costs) should be covered by the service charge paid by the lessees / tenants; and
- that the allocated car space could not be let out / shared separately from the flat (my right to park there)

2. The additional £60 applied to all tickets (I shared the info on the case that was struck out on this forum with the solicitor).

Thank you so very much to the forum regulars for all of your help on this amazing forum as this time last week I felt so helpless!! I am glad I got a solicitor following my terrible luck with the judge and also how emotional I was with it all, in the end as they only drafted my defence and charged a fixed fee for this I didn't think that the cost was too unreasonable at all and definitely worth it for the end result.

The solicitor has suggested that I could attempt to claim my court costs back through the leasehold owner but to be honest I am just so glad to have the CCJ removed that I am writing off the costs (and most glad I've not had to do a deal to pay the awful parking company money which they are not owed).

I've emailed the court back and asked them to confirm next steps, so I'll let you know what they come back with. 

Coupon-mad

Great news.  Now be aware that the claim itself may continue (unless the Claimants now discontinue).

Johnersh

Excellent. As I said in my first post and reiterated in my second regarding the error, the pragmatic approach given how the judge had signposted matters was always to simply file the defence. 

The order setting aside judgment usually makes directions. If it does not, then a separate directions order should follow, setting out deadlines for all the next steps. 

123MrsT

Hello everyone - long time no speak! 

Hard to believe that almost 4 years since the tickets were issued, this is still going on! 

Anyway, it's my hearing tomorrow which will be held over Teams. The local court asked that the trial bundle is submitted 7 days before - I sent my information for inclusion to their solicitors and the court prior to this deadline. 2 days ago the solicitors came back with the trial bundle and a new witness statement (signed the day before) in response to my evidence. 

I was moving house on this date and had no internet (or phone signal in my new house) and also have a 6 month old baby - so to say this is terrible timing for me to be able to spend time going through everything an understatement!  

I just wanted to get some advice / opinions on how to structure my argument and if I need to submit any additional evidence. 

1. Badly put together trial bundle - spelling errors and naming the wrong claimant 

Their pack is really poorly put together, some examples include: 

- Referring to me by my maiden surname only (as if it's my first name) when sending me copies of the court documents which they've included 
- Spelling my first name wrong in their evidence (it's not even a difficult name!) 

But that aside, they used what is clearly a 'copy and paste' argument and forgot to change the name of the claimant in one paragraph.

My Company were instructed to operate a parking management and enforcement scheme at the above location. At all material times we acted with the authority of the XXXX pursuant to the attached dated agreement, contained at exhibit XXX. The same having chosen to restrict parking on the land that they manage and enforce parking on the land in question. A copy of this agreement is attached herewith.

I was not parked at xxxx - in fact nowhere near, it was a residential car park in London. Is this worth raising? If so, how do I do this? 

2. Additional £60 applied to all tickets  

Edited to remove.

Is there any way to come back from this? 

3. Arguing against the original lease 

As well as in their original information shared for the set aside, in the new WS they have included and referenced a map of the site plan which doesn't cover where I was parked! Someone else on here won on this exact argument at the very same place (though they weren't parked in the residential area). 

Should I include this as part of my argument now? 

So if the judge determines they were authorised to ticket me I could then argue I wasn't parked in the area of their agreement with the leaseholder anyway. 

4. Hearing over Teams 

I have a 6 month old baby and my husband has taken half a day off work tomorrow so he can look after her (the trial time is in the morning). However, I noticed it basically says in the letter it could be any time of day if they're delayed. My husband has to go into the office in the afternoon for an important meeting and there is no one else who could look after our baby (don't live near family). 

I'm so worried if it is delayed it will be timed so that she cries / needs me and I will have to pick her up and she be there during the hearing. Will the hearing be cancelled if this is the case? 

I know it's not ideal at all, and if it is at the time stated there will be no issue. But I'm a worrier as it is so this is worrying me! 

Thank you in advance for all of your help!!

Coupon-mad

You can certainly attend with baby, if you have to.  The Judge will have to put up with it if the little one cries!

Yes, everything you've said is worth raising.


Re this:

2. Additional £60 applied to all tickets  
They have argued this as: 
My Company...
(snipped out their crap!)
Is there any way to come back from this? 

*Cough* you missed BBC News on 7th Feb about the government's new Code of Practice?

It now forbids the addition of any debt collection/administration/damages add-on, and @bargepole has drafted a hugely helpful paragraph to use, where there are add-ons:

https://forums.moneysavingexpert.com/discussion/comment/78978233#Comment_78978233

The Ministerial Foreword from the DLUHC's Neil O'Brien says these false costs are/were 'designed to extort money from motorists'.

Quote him and have the link ready to the Code of Practice, to email over to the Judge.  If the C can chuck stuff in last minute then so can you...

And your case includes that extortion in multiples!  Never mind that the BPA used to allow it (they would, wouldn't they...the BPA rules are self-serving and their board members are made up of PPCs and debt collectors who add the false money on top.

It is not retrospective but it matters because it's a clear steer for Judges in existing cases, that added costs are 'extortionate':

https://forums.moneysavingexpert.com/discussion/comment/79033847#Comment_79033847

Have notes based on the wording created by @bargepole last month.

Read the new Code and the Explanatory document published on 7th Feb by the DLUHC, as there are other useful sections in the statutory Code that set out 'best practice' on signage, etc., that can be used for you to say 'here's what they should have done'.

The lovely new Code also includes a paragraph about PPCs not being allowed to create systems which override the rights of residents' leases . Does this bit help your case?

Too late to add this in writing -but by the way - OBJECT at the start, to the late additional WS and ask for it to be excluded.

123MrsT

Have edited my comment above just to remove some irrelevant and some identifying information. 

But...

Their claim was DISMISSED and the judge awarded ME £300 costs (which they appealed and he rejected!)

I cannot tell you how relieved and happy I am to finally have this resolved!

Will fill in more detail this evening but wanted to update you and thank you all for your help over the last few years !!!  

Coupon-mad

123MrsT said:

Have edited my comment above just to remove some irrelevant and some identifying information. 

But...

Their claim was DISMISSED and the judge awarded ME £300 costs (which they appealed and he rejected!)

I cannot tell you how relieved and happy I am to finally have this resolved!

Will fill in more detail this evening but wanted to update you and thank you all for your help over the last few years !!!  

Brilliant news!  Well done!  Your family and friends will be so proud if you.

I've never got costs awarded in court, so you did fantastically to get £300 by arguing unreasonable conduct.

Can't wait to read your 'court report' about how it went.

Coupon-mad

123MrsT said:

I had my set aside hearing this morning and it did not go well at all.

I was so very upset by the way the judge spoke to me and dismissed any of my claims that I actually started crying on the phone (I'm currently pregnant with my first child so don't think the pregnancy hormones helped). I have been stressed about this for months and months and couldn't sleep last night before the hearing and had everything prepped and had gone over it so many times but it made no difference. 

The judge started off on the Consent Order and I explained honestly that was an error and the original intention and she said that it wasn't very good for me at all.

The judge focused on the fact that there were tickets on my car and that the the parking company said they'd sent notices to what was the address they would have found at the time from the DVLA. I said my understanding that this was around the defective service of the court papers which were sent to my old address despite Gladstone's finding my new address and me being there 12 months before they were served. I explained I would never have ignored court papers and was not given a chance to come and defend my claim. 

The judge said they had stated the purpose of the hearing at the outset (completely dismissed my comment) and continued to ask if I had got the tickets attached to my car and why I didn't respond. I said that my husband and I would have seen them and the reason there was 3 on pretty much consecutive days was as we didn't drive our car often and was parked in a secure underground car park. I explained we didn't get the letters because we were in living in London at the time in temporary rented accommodation and hadn't updated my address to this. I also explained I'd not referenced this as didn't believe it applicable to the set aside hearing.

The judge focussed only on the tickets issued 2 years before the court papers and not the service of the court papers and would not listen to me explain. They refused to grant the mandatory set aside on the basis that I hadn't responded to Gladstone's when I would have found the tickets on my car or when they wrote to me at an address which was my fault for not updating. Nothing about serving the court papers. I attempted to question / explain my point but at this point she said it was not for me to talk. 

The judge then went on to see if I had a reasonable chance of defending my claim. The judge first asked if I was a lawyer to which I answered no - no idea what the point of this was, can only assume to Gladstone's point above. As a note, I sound quite young (I'm not, I'm 34 and I'm director level at a large bank in audit so I'm not thick and deal with very serious and direct/challenging conversations practically every day but for some reason I was just a wreck at this) . They then came to the tenancy agreement noted in my draft defence and asked where the copy of it was (I included an extract in my draft defence).  I said that I understood at this hearing I did not need to submit my full defence so had not done so but would have a copy of this in my emails but did not have it to hand. 

I then also said my defence was based on the £60 additional charge that they added to each ticket and that I had seen a case a this very court struck out on this basis due to abuse of process and they said that I could not defend in this hearing based on charges. They then told me to look through my emails for my tenancy agreement which I did and whilst I was doing it I checked again around the applicability of the additional charge and was told abruptly I'd already been told about this. 

I found my tenancy agreement but could not find where anything in it that specified the bay number whilst on the phone. I explained I recalled that I did have the bay number specified in the check in and check out inventory on the permit (a photo) with the fob to get into the gated car park. All flats have an allocated space.

The judge then ordered that it would be set aside if I submitted my full defence including evidence of my right to park in the bay to the court  and Gladstone's within 7 days. As the judge was typing the order my husband who'd overheard had found the inventory with this and the judge asked me to send, it didn't reach in time to cancel the order but they got it at the end and said they didn't believe this was sufficient and that I could speak to Gladstone's separately to see if they were willing to set aside but that this would likely cost me. 

Obviously the judge refused costs. 

Now I am at a loss of how to evidence my right to park in the bay further than the inventory. Would getting email confirmation from the landlord or agent satisfy this? I know you can have verbal contracts so I am assuming this is what it may fall down to. Annoyingly we lived in 2 other apartments in the complex and I have checked and both of those specify the bay number in the tenancy agreements so no idea why this doesn't but it was advertised with a space, we were told that was the space and the fob and permit was included as part of the inventory exactly as it was with the two other flats. All flats have an allocated space (visitor parking is outside of the gates) and I would question why would they give us the fob and permit with the bay number in the inventory and mark this as included like they did for all furniture and fittings if not included in the lease?

Any help on next steps would be very appreciated. Am I best getting lega

Much better Judge than your first experience above at the set aside hearing!  You were put through the mill by the first Judge.

The only thing that worries me is the bit in bold above from your first hearing.  Did she (first Judge) refuse costs or did her order reserve costs until this hearing?

If she stated 'no order as to costs' ( in the Order setting aside the CCJ last month) then I can see the Claimants appealing the £300 costs order to a higher Judge, on the basis those costs were dead...just so you know they might!

Or was the £300 to cover your solicitor costs and your own loss of leave?

Do show your solicitor the new Code of Practice:

https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice

...and tell him/her that the Govt have now banned 'debt recovery' add-ons altogether.  Your argument was right and the first Judge was wrong on so many things.

123MrsT

Ok so here's the more detailed version... 

Legal Rep joins on the phone... from his car!

The case was heard over Teams and the court admin seemed surprised that the rep for the solicitors had joined by phone from their car(!) with no video (it said in comms from the court that it was unacceptable to join on a phone) and questioned them on this and had to check if we could go ahead.

When the judge entered he questioned the rep as to why they were not joining over the internet in a place appropriate to attend the hearing and the rep just repeated that they had no internet in their house, the judge then questioned if this was a new development which the rep then agreed it was (he didn't say this until prompted by the judge).

The judge then asked if they could dial off and join by video on their phone which they did, so the judge and I had to just sit and wait whilst they did this - very professional! The judge was very unimpressed from this point onwards, and it only got worse!  

Relief of sanctions

So then the judge asked about the application they've filed for relief from sanctions given they only filed the trial bundle a couple of days before. I didn't realise they had filed for this. The judge asked if I opposed their relief (which I said I did as seemed the obvious answer!).

It took the judge several attempts to get the rep to understand his questions on the relief from sanctions as he kept getting mixed up with the trial bundle then he had to re-email the information to the judge alongside the original email. The judge was not impressed and noted that the legal rep must have attended many similar cases and should understand the questions. The solicitors had also requested an hour to go through the relief from sanctions which the judge was also unimpressed with. Their excuse was admin issues with their case management system.

The judge eventually granted the relief after going through all of the conditions in detail, I didn't think he wasn't going to at one point, it was only on the last condition he granted it.

Details of the claim

Then he said it was over to the legal rep now to tell him about their claim as it was brought by them... well...

The legal rep starts to read the claim and the judge says he can see this and what do they have to support the fact I was informed of the need to display a permit (I'm obviously summarising here so please excuse my non-technical language throughout etc.).

The legal rep then started to reference the witness statement where some bullets from the sign were noted - the judge asked to see evidence of these signs. The bundle was put together very poorly and the judge complained about this and said the legal rep must feed this back.

The legal rep then starts to go through photos in the bundle from the signs to support their claim - you couldn't read the conditions on any of the signs the photos were of that poor resolution in the trial bundle and the writing on the signs was that small!! I had 3 tickets so they had plenty of photos of signs and couldn't see them on any of them! 

The judge had the following main issues with the signs, aside from that he couldn't read them in the bundle:
- The judge thought they were high up from looking at the photos and he got the legal rep to agree with this - I was surprised he just agreed without question
- Some photos were of outside the carpark (it was underground) and others of the sign but there was nothing showing where my car was parked in relation to the signs, he said the signs could have been from anywhere and some included (those outside) weren't applicable to resident's parking

The legal rep tried to say again what the signs said were in the witness statement but the judge said this was unacceptable as only extracts (there was a lot of text on the signs) and it doesn't state where the witness from the parking company got the text from, for example, did he visit and check or look at better quality photos? He also mentioned the time lapse between the time of the claim and the witness statement (nearly 4 years). 

Then the judge basically tells me he's come to a decision and almost advises me not to say anything, he says he's sure I can see where he's going with this but if I had something I wanted the court to hear I could speak - I took his lead and said I was fine thank you very much! 

He then went through a very detailed summary of why he was dismissing the claim!! 

Costs in the next comment...

123MrsT

Costs

Then the judge asks me if I was out of pocket from attending today! I couldn't believe it! I'd not even put in a statement of costs as I was just wanting this all to be over. 

I'm on maternity leave so I said I was not out of pocket for this (I'm currently still receiving pay but wasn't sure on the technicalities of this as it won't impact me receiving this pay so I didn't think I was out of pocket) but that I had paid a solicitor to draft my defence and this was £300. 

He said he could award that if the claimant had acted unreasonably and could I give examples of where I thought they had... so I said first off the CCJ set aside but then also added about their conduct through submitting the bundle late, spelling my name wrong and dropped in the clanger in the copy and paste nature of the witness statement of the wrong authority - and that was it! 

The CCJ wasn't really applicable on the grounds it was set aside but the judge was very unimpressed with their copy and paste error on the witness statement with the authority of the carpark, especially as it had been reviewed by two solicitors given the relief of sanctions request. The legal rep didn't even know where the error was. 

They tried to argue it as a small error and also the amount claimed in costs being high for the small claims court. They also noted the judge had granted the relief of sanctions. 

The judge concluded they had been unreasonable throughout for their conduct in submitting the bundle late (even though he had granted the relief it was only on one of the conditions), asking for an hour when not needed, poor quality trial bundle / evidence, poorly copy and pasted witness statement which he said overall meant they had wasted all of our time and my time over these many years!! 

They appealed repeating their points and he denied it! 

So there you go!! I cannot even believe it - after all this stress I have gone through I didn't even have to argue my case in the end, the judge basically did it for me in questioning their claim! Then the costs on top! He could clearly see how ill prepared they were and how it wastes everyones time - and said this!!