Mystery CCJ - any support appreciated

Coupon-mad

Yes I would append them as part of your WS evidence, and invite your Judge to come to the same conclusion!

LJG83

Thanks for the advice.

I’ve now put together the 6 point statement and my witness statement with additional exhibits. Looking at it, and knowing all the issues with Excel/VCS and that I presume Sheffield judges may be aware of some of these, I’m quietly confident there’s a strong case there. I’ll post the WS tomorrow however it’s rather long - not sure if there’s a better way then copy/pasting? 

Le_Kirk

LJG83 said:

I’ll post the WS tomorrow however it’s rather long - not sure if there’s a better way then copy/pasting? 

You could post it via a Dropbox (other facilities are available) link but some regulars don't like following links.

LJG83

DRAFT ORDER

IN THE COUNTY COURT AT: xxxxxx

VEHICLE CONTROL SERVICES LTD (Claimant)

And

MR ---- (Defendant)

CLAIM No: ---

IT IS ORDERED that:

1. The default judgment dated XXX must be set aside judgement entered under Part 12 due to defective service under Rule 13.2 as it was not properly served to my current address.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the claim form on the Defendant by 4pm on XX/XX/2020 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 XX/XX/2020.

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 and preparing for the hearing.

6. All enforcement be put on hold pending the outcome of the application.

 

WITNESS STATEMENT

7. I am xxx

 

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

a. Set aside the default judgment dated XX April 2019 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 on the basis that the Defendant has a reasonable defence, or to be re-heard at a new hearing.

 

 

 

WITNESS STATEMENT 

1.1. I am XXX and I am the defendant in this matter. This is my supporting statement to my application dated XXX. 

1.2. I was the registered keeper of the vehicle at the time of the alleged offence. The claim relates to an alleged debt arising from a car parking in a private car park. 

1.3. I understand that the Claimant obtained a Default Judgement against me as the Defendant on XXX, reference XXX. However, the claim form was not served at the Defendant’s current address, but to their previous address XXX, where the Defendant had moved from in XXX (Exhibit A). Confirmation of this is in the form of a Tenancy Agreement (Exhibit  dated 24 September 2018 and Council Tax Statement (Exhibit C). Due to this I am requesting a mandatory set aside as the court must set aside a judgement entered under Part 12 if judgment was wrongly entered because –

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

1.4 . The Defendant not aware of the default judgment until 01 April 2020 after a general credit check search. On further investigation the Defendant found a CCJ on their credit record from County Court Business Centre. On telephoning the County Court Business Centre for further information on the 01 April 2020, the Defendant was informed that this CCJ related to a parking charge for a private car park, issued by Vehicle Control Services Ltd(the Claimant) for an alleged contravention on XX November 2018 (Exhibit D).

1.5 . In order to find out further information regarding the CCJ, the Defendant on the 01 April 2020 emailed the data protection officer at Vehicle Control Services Ltd (the Claimant) to submit a Subject Access Request (SAR) to have the original Parking Charge Notice (PCN) and other data held on the Defendant sent to them. All documents subsequent to this request were received on the 14 May 2020. 

1.6 . The alleged driver of the vehicle stayed, according to ANPR, at Berkeley Centre Car Park, Sheffield on the XX November 2018 for a period of 73 minutes when the free allowed period according to signage is 60 minutes.

1.7 As the keeper of the vehicle, had I actually received the PCN, I would have believed these letters to be mistakenly sent for the following reasons:

(a) The car park I understand had previously offered 120 minutes for free and seeing that the duration of stay by the vehicle was 73 minutes. 

(b) this was further confused by the PCN’s sent by Vehicle Control Services (Exhibit E), within the Contravention section stating ‘101) PARKED WITHOUT PAYMENT OF THE PARKING TARIFF FOR THE VEHICLE REGISTRATION MARK OF THE VEHICLE ON SITE - The Maximum period allowed at this site is 120 minutes’.

1.8. The Defendant has at no time tried to avoid paying for any known debt, and was at all times there to be found by a simple trace. It is submitted that the Claimant should have taken those reasonable steps, and would have known, or should have surmised, that it was likely the Defendant was not at the old address, given the length of time from the alleged parking charge and the fact that the Claimant was receiving no reply from the Defendant from the 5 sets of correspondence sent to the old address (Exhibit F).

1.9. The Defendant has never received any previous correspondence from the Claimant in this matter, therefore they were never able to challenge the original charge nor the judgment. Further, the Defendant puts the Claimant to strict proof that they did post such communications to the Defendant’s address.

1.10. It is reasonable to suggest that given the lack of response to the Claimants letters prior to issuing proceedings, it would not be unreasonable for the Claimant to think the Defendant would no longer be living at XXX. In that case, the Claimant ought to have taken reasonable steps to ascertain the Defendant’s current whereabouts in accordance with CPR 6.9(3). Had the Claimant done so, then it would have realised that the Defendant no longer lives at XXX, which is the address the Claim Form was served. At the time of the default judgement the Defendant was registered at the new address for council tax, all bills and banking. Furthermore, the Defendant could have been reached via social media forums such as Facebook, Twitter and Instagram. As the Claimant (and any debt collection agencies/solicitors they may have instructed to contact the Defendant) had received no correspondence from the Defendant at any point, and the Defendant had not responded to the court summons, it is suggested that they had reasonable cause to question whether they were using an accurate address and that simple searches could have provided them with the correct address.

1.11. The Defendant believes the Claimant has behaved unreasonably by not ensuring they used the Defendant’s correct contact details. According to publicly available information the Defendant’s circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system.

1.10 . 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 (Exhibit G). The Right Honourable Sir Oliver Heald QC MP 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.”

1.11 . The above points show that the Claimant has not adhered to CPR 6.9 (3) (4) where they had reason to believe that the address of the Defendant is an address at which the Defendant no longer resides or carries on business. The Claimant was incorrect in assuming that this was the Defendant’s last known address and did not take reasonable steps to ascertain the address of the defendant’s current residence or place of business despite having 6 months to establish an address between the alleged incident and the default judgment. This has led to a defective service and an irregular judgment and the Court must set aside the claim.

1.12 . A further reason to set aside the claim is that the claim form was received and the Defendant was given sufficient details about the claim against them, it was more likely that the Defendant would have defended the claim and/or satisfied the outstanding debt, however the Defendant was not given this chance. In the Court of Appeal case Godwin v Swindon Borough Council [2001] EWCA Civ 1478 LJ May said the following:
“Rule 13.3 (1)(b) has a disjunctive alternative, so that the court may set aside or vary judgement entered in the default if it appears to the court that there is some other good reason why the judgement should be set aside or varied or the Defendant should be allowed to defend the claim. In my view, this is plainly extendable to circumstances where the Defendant has not received the claim form and particulars of the claim before judgement was entered against him. It is not an absolute right, but does not have to depend on the Defendant having a real prospect of successfully defending the claim. The Court therefore has sufficient power to do justice in these cases and will, no doubt, normally exercise this discretion in a favour of a Defendant who establishes he had no knowledge of the claim before judgement in default was entered unless it is pointless to do so. The Defendant, for instance, may justifiably want to have the judgement set aside on the basis that, had he known about the claim, he would have satisfied it immediately without having an embarrassing judgement recorded against him.”

1.13 . In summary, the Defendant has acted promptly when they found out about the judgement. The Defendant has explained why they did not respond to the claim issued. The Defendant believes that service of the claim form was invalid, and that there is also a real prospect of defending the claim (please see ORDER DISMISSING THE CLAIM below). The prejudice The Defendant would suffer by not being allowed to defend this claim greatly exceeds the prejudice to the Claimant if the judgement is set aside. For these reasons, the Defendant respectfully asks the Court to set aside the judgement under CPR part 13.

LJG83

2. ORDER DISMISSING THE CLAIM

2.1. I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

2.2. If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

2.3. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

2.4. Furthermore, as the alleged contravention occurred 18months ago, the Defendant is unable to confirm or deny visiting the stated car park on the specified date, nor confirm the driver. The Defendant is therefore unable to name the driver, as well as being under no obligation in law as keeper to do so. This was confirmed by the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that the registered keeper can only be held liable under the PoFA Schedule 4 and not by presumption or any other legal argument.

2.5. A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

2.6. The Defendant further submits 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 unlikely to be 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 sue 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 motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.

(c). Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.

(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 motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to Vehicle Control Services.

2.7. The Claim is made in the name of Vehicle Control Services Ltd. (Company No. 02498820), whereas the signage displayed at the location in question was, and is, in the name of Excel Parking Services Ltd (Company No. 02878122), a separate legal entity. Any contract, in a private car park, can only be formed by signage, and it is therefore submitted that if there was any contract, it would have been between Excel and the Defendant. Vehicle Control Services were not a party to such a contract, and therefore cannot sue on it. 

 

2.8. The logo in the bottom and top right of the signs is for Excel Parking Services and not Vehicle Control Services who are making the claim in this case (Exhibit H).

 

2.9. Vehicle Control Services know this to be the case as there have been many dismissed cases and discontinued claims.

 

a) Vehicle Control Services -v- Ms A. C6DP7P37 at Birmingham County Court. Dismissed. Wrong Claimant.

b) Vehicle Control Services -v- Unknown. C1DP3H5V at Birmingham County Court. Discontinued. Wrong claimant.

c) As well as all of the following Discontinued claims. A8QZ6666, 3QZ53955, C8DP9D8C, C2DP0H7C, C1DP3H5V and C8DP37CH et al, all discontinued when it was pointed out to BW Legal that VEHICLE CONTROL SERVICES had no right to pursue the matter as they were not the rightful claimant.

2.10. Breaches with regard to signage on the property mean that a valid contract could not have been offered to any individual (including visually impaired) and therefore with respect to this claim, no contract was ever in place; thus rendering a breach impossible.

2.11. After further assessing the Excel signage, the Defendant’s terms and conditions are in a blue rounded box with white text which appears to the right of the main sign(Exhibit I). At the top of that box and inset is a white rounded box in which appear in blue the words “Terms and Conditions”.

 

2.12. There is a statement (tucked away, potentiallyintentionally at the very foot of the main sign) that “By entering this private land you agree to pay a Parking Charge if you fail to comply with the terms and conditions. The Parking Charge is £100.00 (payable within 28 days of the Parking Charge Notice issue date.” However, this is not part of the terms and conditions.

 

2.13. At law a reasonable person must be entitled to read what the Claimant says are its terms and conditions, conclude he has read them and act accordingly. A reasonable person cannot, in general, be expected to seek out further terms and conditions on which the Claimant might seek to rely. This is, in particular, true where the actual terms and conditions do not include the possibility that other terms may be incorporated.

 

2.14. If the Claimant wanted to charge £100 for overstaying a 60 minute time limit then it was incumbent on the Claimant to include this in its terms and conditions. It did not do so and there is no such term or condition. There has been no breach of contract.

 

2.15. Having assessed the archives of planning permissions for Sheffield Council there appears to be no application for the signage as required by The Town and Country Planning (Control of Advertisements) Regulations 2007 Part 1 Para 4: 

 

“No advertisement may be displayed unless consent for its display has been granted —

 

(a)by the local planning authority or the Secretary of State on an application in that behalf (referred to in these Regulations as “express consent”); “

 

2.16. If no proof can be offered that permission was given by the council to display the signs in this car park, then they are illegally displayed, and no contract could be formed based on them. 

2.17. The letters submitted in Exhibit F by Vehicle Control Services imply a parking enforcement contract is in place between Vehicle Control Services and the landowner. However, the front page of the contract for parking enforcement services at Berkeley Precinct dated the 28th of September 2018 is for Excel Services (Exhibit J), implies the contract is actually with separate entity Excel Services and not Vehicle Control Services therefore puts reasonable doubt onto which company actually had a parking contract in place at the time. This demonstrates that any contract would have been between Excel and the Defendant, and that VEHICLE CONTROL SERVICES were not a party to such a contract, and therefore cannot sue on it. 

2.18. According to section 44 of the Companies Act 2006 (Exhibit K), for a contract to be executed (in other words, valid) it must be signed by TWO authorised persons from each party, or a Director AND a witness. Since there is only one signatory from each party, the contract fails to have been properly executed. The signatures are not dated so there is no proof that the contract was signed before the date of the alleged parking event.

2.19. The contract refers to the "landholder" but not the landowner. Anyone could say, "I'm authorised to sign contracts on behalf of the landowner," but for that to be true there would need to be a written contract between the landowner and the landholder, signed by two authorised persons from each party, authorising the landholder to form contracts with a third party. Since such a contract has not been provided, I aver that it does not exist and therefore the contract between Excel and LSH is invalid.

2.20.  Therefore, reverting to the previous contract that exists which is between Vehicle Control Services (not Excel Services) and LSH, I aver it states 2 hours free parking (Exhibit L) and therefore as the alleged contravention is 73 minutes makes this claim invalid. Vehicle Control Services know this to be the case as there have been many dismissed cases and discontinued claims (Exhibit M).

LJG83

2.21. Thep 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.

 2.22. The Claimant, or their legal representatives, haveadded an additional sum of £60 to the original £100 parking charge (Exhibit N), for which no explanation or justification has been provided. Schedule 4 of the Protection OfFreedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which per current signage albeit not in the “Terms and Conditions” as highlighted is £100 in this instance. 

2.23. CPR 44.3 (2) states: (Exhibit O)

“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.”

2.24. The standard wording for parking charge/debt recovery contracts is 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.

2.25. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

2.26. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model which in this instance it is. 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.

2.27. Unlike this Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. 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, and all parking firms are very familiar with this case.

2.28. In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £160. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case.  

2.29. 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. Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019.  Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Exhibit P) and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Exhibit Q).

2.30. The International Parking Community Codes of Practice state ‘A Grace Period is a period of time, after the expiring of a parking time limit, for a motorist to exit a car park without incurring a parking charge. 

 

The IPC Code of Practice stipulates that a parking operator must allow a motorist 10 minutes after the expiry of a permitted period of parking, to leave a car park without incurring a parking charge.

 

2.31. The alleged contravention by the driver of the vehicle is for a 73 minute stay in what is alleged to be free for 60 minutes. Taking in to account the grace period of 10 minutes in addition to this means the driver overstayed for a period of 3 minutes. 

2.32. 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 for a 3 minute overstay 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.

2.33. 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.

2.34. 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.

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.

Signed

x

Coupon-mad

There is a post by Johnersh last week with a suggested new point for a CCJ draft order.

LJG83

Would be great if someone casts an eye over it please? And thank you in advance, along with apologies for the length of it! 

This forum along with the support people provide is brilliant. 

Ps be kind, 1st draft! 

LJG83

Coupon-mad said:

There is a post by Johnersh last week with a suggested new point for a CCJ draft order.

Thanks Coupon Mad - I’ll have a look later on. I’m a little frazzled from writing this today.

LJG83

One thing about the WS I’ve written - obviously this is for the set aside hearing. Wasn’t sure if it’s too long for this and I need it more concise, with more detail later in the process?