DBCL letter of enforcement

jav12

jav12 said:

Coupon-mad said:

Is the other case also about Observices?

Have they used a different/old address for you, for this one?

Did you get a court claim for this one?  You are going to have to quickly apply to the court for a set aside of this CCJ if you received no claim for this one, and tick the box to ask a court for a stay of execution as well (to stop this being enforced). 
This will be a N244 with a witness statement and draft order like in the set aside threads linked in the NEWBIES thread.

 Be quick.  Don't pay a grand.

Yes, the other case is also OBServices 

The letter received (pictured) is my current address, however at the time of getting the parking tickets I was living at another address so believe they must have issued letters regarding this claim to the old address? but yet they've issued a separate claim (in my other thread) to my current address and also this letter?

No, I haven't received anything for this one other than the letter of enforcement.

Ok great thankyou, I will get this done immediately 

Should I apply for a set aside without consent? 

Coupon-mad

The letter received (pictured) is my current address, however at the time of getting the parking tickets I was living at another address so believe they must have issued letters regarding this claim to the old address? but yet they've issued a separate claim (in my other thread) to my current address and also this letter?

That's what I was after!

So Observices and DCBLegal KNEW your current address but failed to use that information for the claim for this one, then DCBL (the group) were set to profit along with their clients,as soon as you didn't see it and defend, because they handed it to their HCE team and whacked costs on top.  Nice work, DCBL.  Not.

Which claim was filed first, the one you are defending? 

Check filing dates of the two N1 forms with the CCBC by phoning them on Tuesday.  Ask for a copy of page one of this claim form so you can see everything, dates, address used, sum claimed, particulars of claim, the lot.

Because if this one was second then you'd have another (separate) 'good reason' to set aside the CCJ (and tick the N244 box to ask the court for a 'stay of execution' - VERY IMPORTANT).  And that would be that this second claim is barred due to cause of action estoppel.  See my reply about that yesterday.

You must read up on set asides and get your N244 filled in with a WS with the new statement of truth and evidence that DCBL and Observices knew your new address for the other claim but deliberately or negligently failed to use it for this claim them DCBL tried to profit from their own conduct (plus cause of action estoppel, if the claim you have defended was the first one filed by them, assuming these PCNs all relate to the same car/location and contract facts).

twhitehousescat

It would not be beyond belief to see that they actually ussued 2 claims to 2 different addresses within days of each other 

jav12

Coupon-mad said:

The letter received (pictured) is my current address, however at the time of getting the parking tickets I was living at another address so believe they must have issued letters regarding this claim to the old address? but yet they've issued a separate claim (in my other thread) to my current address and also this letter?

That's what I was after!

So Observices and DCBLegal KNEW your current address but failed to use that information for the claim for this one, then DCBL (the group) were set to profit along with their clients,as soon as you didn't see it and defend, because they handed it to their HCE team and whacked costs on top.  Nice work, DCBL.  Not.

Which claim was filed first, the one you are defending? 

Check filing dates of the two N1 forms with the CCBC by phoning them on Tuesday.  Ask for a copy of page one of this claim form so you can see everything, dates, address used, sum claimed, particulars of claim, the lot.

Because if this one was second then you'd have another (separate) 'good reason' to set aside the CCJ (and tick the N244 box to ask the court for a 'stay of execution' - VERY IMPORTANT).  And that would be that this second claim is barred due to cause of action estoppel.  See my reply about that yesterday

I'm going to call the court tomorrow to find out the particulars for this claim, but for now have prepared my WS on the basis that this is the second claim that was issued. There is no box that I can see on form N244 to ask for a "stay of execution" and so have included this in the draft of order, is this acceptable? 

I would be ever so grateful if my documents could be reviewed before submitting as below:

WITNESS STATEMENT

I am XXXX and I am the defendant in this matter. This is my supporting statement to my application dated 25th May 2020 requesting to:

a. Set aside the default judgment dated 15th May 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 15th May 2020. I am aware that the Claimant is OBServices Parking Consultancy Limited, and that the assumed claim is in respect of unpaid Parking Charge Notices from the XX, XX and XX 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 23rd May 2020 following a Notice of Enforcement letter received from the Claimant’s lawyers, DCBL Limited, as found in Schedule (X). After further investigation on 23rd May 2020, I discovered that a CCJ hade been issued against me by OBServices Parking Consultancy Limited.

The address on the claim is XXXX. I moved to my current address at XXXX on the 3rd April 2018. In support of this I can provide a scanned copy of my mortgage agreement, alongside a council tax and utility bill; Schedule (X)

1.3.1 The Claimant has issued a separate claim, reference number XXX to my current address which I am in the process of defending, and therefore the Claimant was aware of my current address but deliberately or negligently failed to use it for this claim to try and profit from their own conduct

1.3.2 In respect of this claim, the Claimant was able to obtain my correct and current address after (date of judgement) to make me aware of the money owed but only after such time that a CCJ had been passed. This clearly demonstrates that they were either negligent and aware that they did not have the correct address at the time of perusing the court order or that they deliberately failed to use the correct address to profit

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 23rd May 2020.

1.4.2 On 26th May I contacted the County Court Business Centre to obtain relevant information relating to this default judgement; Schedule (X). I was unable to act sooner due to a public bank holiday.

1.4.3 On 26th May 2020 I have wilfully submitted my case in order to set-aside this judgement and fairly present my case.

jav12

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. 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.

 

ORDER DISMISSING THE CLAIM

 

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

 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.

2.1. 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).

 2.2 Under the terms of the Defendant's lease, one reference is made about parking motor vehicles. The reference is simply stating that the overall lease arrangement is not to use or permit any parking space to be used for any purpose other than the parking of one private motorcar which shall be in roadworthy condition. 

2.3  There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

2.4  The Defendant's vehicle clearly was 'authorised' as per the lease 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 resi- dents.

2.5 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.

2.5.1 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).

 2.6. 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.

 2.7. 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.

 2.8. 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, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

 2.9. 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 

2.10. 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.

2.11. 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.

2.12. 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.

2.13. The Court is invited to take note that the Claimant has issued a further claim, number XXXXXXXX, against the Defendant on the same date, and with substantially identical particulars, for the same cause of action. The issuing of two separate claims, by the same Claimant and for essentially the same cause of action, is an abuse of the civil litigation process. The long-established case law in Henderson -v- Henderson [1843] 67 ER 313, and more recent authorities, establishes the principle that when a matter becomes the subject of litigation, the parties are required to advance their whole case. The Court is invited to consolidate the two claims to be determined together, and to apply appropriate sanctions against the Claimant.

2.14 Being legally represented, the Claimant knows, or should know, that by detaching or allowing to remain detached, elements of alleged debts and issuing separate claims, each which rely upon essentially duplicate particulars and facts, is an abuse of the civil litigation process. 

This Claimant has issued two separate claims that the Defendant is aware of relating to parking charges within a small timescale:
Claim number xxxxxxx - relates to PCNs issued on XXX
Claim number xxxxxxx - relates to a PCN issued on XXX, relying on the same facts;

In Arnold v National Westminster Bank plc [1991] 3 All ER 41 the court noted that cause of action estoppel “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.”

In Henderson -v- Henderson [1843] 67 ER 313 the court noted the following:
(i) when a matter becomes subject to litigation, the parties are required to advance their whole case;
(ii) the Court will not permit the same parties to re-open the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, or error;
(iii) this bar applies to all matters, both those on which the Court determined in the original litigation and those which would have been advanced if the party in question had exercised ''reasonable diligence''.

By the Claimant's negligence or by intent, filing two claims, allowing them to continue to two separate hearings and choosing not to pay the appropriate court fee to apply for leave to consolidate them and amend the particulars into one claim, permits of no reasonable explanation.  The Court and myself have had to make preparations for separate court hearings, causing unnecessary cost in time and money, and specifically in terms of duplicating the paperwork, intimidation and distress for me as a Litigant in Person.

By filing the first claim and failing to advance their whole case, any cause of action was immediately extinguished for any other similar fact parking charges against myself as Defendant.   The courts may estop a second/third claim where the cause of action is substantially the same.  I invite the court to vacate the second hearing and summarily dismiss those claims under the grounds of cause of action estoppel.  In the alternative, the Court is invited to consolidate the claims to be determined together, and to apply appropriate sanctions against the Claimant.

I will attend the first hearing and will seek my full costs from the Claimant, whose conduct in the pre- and post-action phases has been wholly unreasonable.   Ignorance of the existence of cause of action estoppel is no excuse.  My research discovered the above authorities and I am just a Litigant in Person forced to spend hours trying to get up to speed with a process I have never experienced before.  But this is a Claimant well used to the court process, able to rely upon advice from DCBL solicitors.  The conduct of this Claimant and their legal representatives has been vexatious and when their course of conduct is taken as a whole, it certainly meets the bar set in Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269 for the court to order the Claimant to pay my full costs.  

A signed and dated Summary Costs Assessement that takes all PCNs and all two claims into account, is appended.

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.

DRAFT ORDER

IT IS ORDERED that:
1. The default judgment dated 15th May 2020 be set aside.
2. Costs to be reserved.

3. A stay of Execution applied.
4. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4 pm on 9th June 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.
5. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on 23rd June 2020.
6. 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.
7. That all enforcement be put on hold pending the outcome of the application.

Coupon-mad

There is no box that I can see on form N244 to ask for a "stay of execution" and so have included this in the draft of order, is this acceptable? 

And put it in one of the comments boxes of the N244 and explain that time is of the essence, and attach a copy of the DCBL letter threatening bailiff action.

Put a covering letter or email headed URGENT STAY OF EXECUTION NEEDED: CLAIM XXXXXXX  - stating:

This application is extremely urgent and needs to be put before a Judge this week for a stay of execution and urgent Directions.  This is in view of DCBL trying to enforce the CCJ within the next week, despite knowing that service of this claim was defective. 

Their legal arm provided what they and their client knew was the wrong address to the CCBC and this is obvious because a second claim number xxxxxxxx was filed by them to the right address.  The one that was properly served has been defended.  Alarmingly, they have split the claims and served one to the right address and one to the wrong address.  Both deal with duplicate facts, so one of them must be barred by cause of action estoppel in any case, and the one that has a default judgment must not be allowed to continue to High Court Enforcement, due to the wholly unreasonable conduct of the Claimant with the connivance of DCBL group in both claims.

Coupon-mad

Did you get this done? 

Ring the CCBC and ask for the stay of execution issue to be put before a Judge early next week!

jav12

Coupon-mad said:

Did you get this one? 

Ring the CCBC and ask for the stay of execution issue to be put before a Judge early next week!

I've called CCBC 3 times this week, and yesterday was told it's been allocated to Croydon court so waiting for a hearing date. Therefore I called Croydon Court yesterday and expressed the urgency of the matter and that I need a hearing this week or before the 2nd June, to which I was told that the bailiffs cannot enter my home and that I need to tell them about the set aside application I've made and that they can call the court to confirm this if they wish. I'm just in the process of reading through the thread about telephone hearings (it's been confirmed it will be telephone) and what to send over to DCBL ahead of this - just wondering if I should send my documents to them at the same time of advising I've applied for the set aside and stay of execution?  

Coupon-mad

None of that helps you much.  The case needs to be put before a Judge, not just 'applied for'.

Keep your doors and window closed and prime the family NOT to let some deluded bailiff aggressive git put their foot in the door when you are not expecting it.

jav12

Hi all, I'm just getting organised and awaiting the date for the set aside hearing. I just wanted to make sure what I've done so far is correct. I submitted form N244 and the witness statement, along with the draft order. Am I correct in thinking that the defence is only needed for the hearing as I didn't submit this? Or is this just required if the Claimant then serves a claim form following the set aside hearing?
 I've been reading through threads about the actual hearing and believe I will just need to prove that I did not live at the address where the claim form was served (this was already attached as evidence with my witness statement). Will I need to provide a defence at the hearing and other evidence? 
I've now had a response to my SAR request, and so have the pictures and letters that were sent by OBServices. I'm planning on taking pictures of the signs later on tonight to show how small the writing is and I've also sent the DVLA an SAR request for dates to show when I updated my address details with them.