Telephone Hearing to Set Aside CCJ at Country Court

injectedmadness

Having read their claim bundle they have responded to specifically in their witness statement points raised in my defence. They have also used International Parking Community instead of the old name. The witness statement has been prepared by a paralegal.

I have found some small errors in the case bundle, the index refers to pages that are not present namely a witness statement by Jack Chapman which doesn't exist. The page numbers are mostly incorrect. Does this have any bearing? Should I submit my own copy?

In their witness statement they have raised a few points that are not covered by my defense. Do I submit a supplement to the documentation I have already submitted?

1. They claim that they were instructed by the 'managing agents of the landholder' at an incorrect date. As such from the contract I can see that the contract is dated much earlier than the construction of the second block of flats and its parking area. There is another block which may have been covered by the agreement. But as such this agreement is not between the landowner and the parking company. To add to this, the managing agent has changed and as such had not been the one being called out in the agreement and witness statement when the alleged PCB was received.
2. The claimant claims that parking permits were issued to residents at a date much earlier than the construction of the block and it parking. Permit provided by leaseholder are dated after the construction of the block of flats. The then managing agent sent a letter out informing of parking enforcement for a date much later than post construction and handover of the block. In contradiction to the point made in the WS.
3. It claims that the signage on the site is clear and unambiguous and terms and conditions apply and it is the driver's responsibility to check for such signage and obtain authorisation.
4. They claim a PCN was issued and no response received by registered keeper. Information then was obtained from DVLA and a postal PCN issued.
5. They raise a point that defendant should have made an application to set aside when knowledge of such claim was obtained. I have provided medical evidence to show my inability to be able to do this. They also make the point to note that defendant had a phone conversation. But no mention of asking for the matter to be settled and some form of agreement be reached, which was denied by the representative on the phone. As previously asked, how can I prove that I asked and was denied?
6. I also contacted the managing agent who contacted the claimant asking if the PCN could be cancelled and they were told since the matter is with the debt collectors (and as such default judgement has been passed) they won't be able to cancel the ticket. However if defendant had contacted earlier this could have been cancelled. In their WS they claim no such liberties are granted unless a PCN is issued incorrectly or in error. This is contrary to what was discussed between the managing agent and claimant.
7. They claim that defendant failed to nominated who was driving prior to the proceedings being issued and it is required under paragraph 5(2) of the Act (no mention of which specific act). Also claim that the criminal case of Elliott v Loake 1983 that registered keeper of a vehicle may be presumed to have been a driver unless they sufficiently rebut this presumption. And the court is invited to conclude that the registered keeper was the driver.
8. Should be noted here that the contract between managing agent and claimant specifically state driver of the vehicle not registered keeper.
9. They also state Schedule 4(5)(2) of the Protection of Freedoms Act 2012 which states that the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. Further they claim the PoFA Schedule 4 (paragraph 2) states that the keeper means the person by whom the vehicle is kept at the time of parking which is to be presumed unless the contrary is proved.
10. The claimant claims that my defence to right to park is not proven by my evidence (tenancy agreement) and this right was always subject to amendment (parking scheme and conditions as per the clear signage on site). And as such the leaseholder has to comply with the landowners agreement (should be noted the agreement is between managing agent and claimant) and as a tenant I should comply to this agreement between these parties.
11. The only restriction in the tenancy agreement is not park an unlicensed vehicle in the building. As such the claimant claims that by receiving/accepting permit from the claimant the defendant has bound themselves to the parking scheme and no objection was received from the defendant pertaining to this parking schemes enforcement. Therefore any rights have been abandoned.
12. Claimant claims that defendants use of Link v Blaney is incorrect as such because the leaseholder (defendant's landlord) did not have any such rights to give to the tenant in the first place.
13. The claimant claims that by not displaying a valid permit defendant has breached the terms and as such does not have a valid defence to the claim and ask for the application to be dismissed.

Needless to say, I am very much overwhelmed by all of this and would like as much support as possible. I am reading the forums and trying to understand all the points that have been made. There is a lot of information that I need to digest. Please bear with me.

injectedmadness

nosferatu1001 and Umkomaas I have tried to respond to your comments in the (apologies for the length) response above. Let me know if you need any information.

Coupon-mad

I would use your above list as a crib sheet for demolishing their WS if the Judge gives it any credence.  I suspect he/she won't give it much probative value at all, because it sounds like hearsay (you don't have to disprove lies if they are hearsay - just state what really happened!).  And they are trying to turn your CCJ set aside application into a mini-trial of the case, which is not what the hearing you've paid for is about! 

DON'T FORGET TO ASK FOR YOUR COSTS TO BE ORDERED AGAINST THE CLAIMANT, OR AT LEAST ASK THE JUDGE AT THE END OF THE CALL BEFORE PUTTING THE PHONE DOWN, PLEASE CAN THE COURT 'RESERVE THEM' SO THAT YOU CAN CLAIM THEM IF THE PARKING FIRM DISCONTINUE?  

Read the two examples linked in the NEWBIES thread, where both posters got their £255 ordered back and I think one of them had a pile of paperwork trying to make the hearing a mini-trial, like in your case.  We definitely saw one last month and the Judge was unimpressed by the Claimant's protests.

injectedmadness

henrik777 said:

Also, at the time of calling the country court it was discovered that the address on their system was not exactly the same as the full addresss of residence

Who's fault is that ? Did it lead to the missing post ?

The answers are significant to your application based on non service and cpr 13.2 which has no time barriers nor do you actually need any prospect of winning the underlying case.

The address had the block details missing. As I have evidenced in my defence due to not having the block name we regularly receive post from the block opposite our and they receive ours. This has been an ongoing issue. Which as I said I have evidenced in the defence pack.

When I called the court I failed the verification and after several attempts was able to access case details by providing the address without the block details. In online addressing systems the address sometimes appears with the block name and in some without.

henrik777

injectedmadness said:

henrik777 said:

Also, at the time of calling the country court it was discovered that the address on their system was not exactly the same as the full addresss of residence

Who's fault is that ? Did it lead to the missing post ?

The answers are significant to your application based on non service and cpr 13.2 which has no time barriers nor do you actually need any prospect of winning the underlying case.

The address had the block details missing. As I have evidenced in my defence due to not having the block name we regularly receive post from the block opposite our and they receive ours. This has been an ongoing issue. Which as I said I have evidenced in the defence pack.

When I called the court I failed the verification and after several attempts was able to access case details by providing the address without the block details. In online addressing systems the address sometimes appears with the block name and in some without.

Potentially very useful.

Why was it missing ? ( Check your v5)

injectedmadness

Why was it missing ? ( Check your v5)

Yes, it's not on the V5. Although an older V5 for another car has the full address. 
I did notice this year that when I renewed my driver's license it did not allow me to input the full address as well.
UKCPM has issued permits to residents using the full address so as such have access to it.

Coupon-mad

UKCPM has issued permits to residents using the full address so as such have access to it.

Aha, so they knew, or should have known...they had the info in their hands all along and a reason to believe that their post was not being received.  Could have been easily sorted so the claim went to the right address but they didn't take any steps to make sure.  They could even have asked the Managing Agent who contracted them,  what the issue might be!

injectedmadness

Coupon-mad, thanks for the head up. I will keep a copy of these points handy and ask for the costs to be reserved. Is there a difference between asking the cost back and reserving them? I have read on the forums people ask for both in different situations. I'd like to point they have specifically pointed out that even though I phoned them (to ask for out of court settlement but conveniently left that part) I could have set aside with consent but chose not to. Hence, my order for recovering my costs should be dismissed.

Do I have to rebute the points they have made in their paperwork? Or I only have to concentrate on rewinding this back at this stage. In my application pack I included points to show that I have defense. Which they have refuted.

injectedmadness

Honestly, just by having people commenting here is helping in resolving my anxiety around this matter. Sincerely grateful 🙏

injectedmadness

Coupon-mad said:

UKCPM has issued permits to residents using the full address so as such have access to it.

Aha, so they knew, or should have known...they had the info in their hands all along and a reason to believe that their post was not being received.  Could have been easily sorted so the claim went to the right address but they didn't take any steps to make sure.  They could even have asked the Managing Agent who contracted them,  what the issue might be!

Yes, the letters residents receive with their permits are addressed to the full flat + block name address. Like I said, there have been many community posts about this on our residential page. I have included these in my pack and a letter from a tenant to testify they have had regular issues with losing posts and parcels.