CEL CCJ - Trying to appeal. Please help

KeithP

Sjay0207 said:

They do not have any option to put me through to an executive.

That's probably because they don't have any executives. 

Sjay0207

Sjay0207 said:

To send the N244, I have to send the completed N244, Witness statement and Draft Order. I also need to pay £255 before sending the form. Hope I am not missing anything. 

Thanks

Please advice. 

henrik777

https://legalbeagles.info/library/how-to-set-aside-a-county-court-judgment-ccj/

I'd send something akin to a defence to help with showing a real prospect of successfully defending the case too in case you require a discretionary set aside. 

Coupon-mad

Yes, and you can adapt the template defence (top of the forum) in about half an hour to sort that out!

nosferatu1001

Yep, I would always sugegst sending a defence. Gives you two bites at teh set aside- CPR13.2 AND THEN CPR13.3

Sjay0207

@nosferatu1001 , @henrik777
, @Coupon-mad
Thanks for your response. I have drafted a Defence looking at the posts in other threads. Here it is:

I, the Defendant, was the registered keeper of the registered vehicle XXXXX
I deny that I am liable to the Claimant for the entirety of the claim for each of the following reasons:

SET-ASIDE DEFAULT JUDGEMENT
1. I have at no time tried to avoid paying for any known debt and was at all times there to be found by a simple trace. I had applied for a car loan and it got rejected on 28 May 2020. On enquiry, they let me know on 28 May 2020 that there is an active CCJ on my credit report.

I checked my credit report then and noticed an active CCJ. I got in touch with Experian on  regarding the same. I had a County Court Judgement for cancellation of a Notice of Enforcement related to a Penalty Charge No. XXXXX(for Dart charge) and on checking with Experian they also let me know (email on 6th Jun 2020) that the active CCJ is related to the Dart charge Notice of Enforcement. So, I sent them all the necessary documents to set my credit report right. On 10 June 2020, I received an email confirming that the two cases are not related and I have an active CCJ with a case number XXXXXX. I immediately mailed the Northampton County court admin, on 10 Jun 2020, requesting for the details with the case reference number, as I did not have any information regarding the case. I waited for a few days and on no response, I called the County court Business centre on 17 June 2020 and requested them to share the details of the case. The email from them finally let me know the PCN number and the amount that had to be paid. Still, it did not give any details on the place where the parking ticket was issued. So, I had to enter the PCN details with the vehicle details on the Civil Enforcement Limited (Claimant) website to find out to which location / parking space the PCN was related to.

I had not received any documentation from the Claimant in this matter at that time.

I called the County Court Business Centre on 19 Jun 2020, to let them know that I have not received the parking ticket, notices and other documents related to this case. My V5C was not updated with my new address when the PCN was issued. However, it was updated to the new address I was living then, when the CCJ has been issued, I also mentioned that I received the County Court cancellation order for the Dart charge to my current address I was living then but not this CCJ. The executive then explained to me the process to set aside the CCJ and sent me the relevant information through email.

I therefore acted promptly to both ascertain the details of the default judgment and submit a Set Aside Application.

I, then submitted Subject Access Request to the Claimant (Civil Enforcement Limited) on 21 Jun 2020 and also sent them set aside Consent order with reasons to be forwarded to their legal team on 24 June 2020 as I was unable to find any legal team contact for the Claimant on their website.
2. The Court are therefore asked to give regard to my prompt action on learning of the default judgment which adheres to Civil Procedure Rule (CPR) 13.3 (2):
‘(2) In considering whether to set aside or vary a judgement entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgement made an application to do so promptly.
3. The fact that I only learned of the default judgement on 10 Jun 2020 shows that the Claimant had not adhered to CPR 6.9 (3) in taking reasonable steps to ascertain my current address when they had reason to believe that the address they were sending documentation to me was one I no longer resided at. As the Claimant received no response from me to their correspondence, the Claimant had reasonable cause to question whether they were using an accurate address. At the time of the default judgment my driving licence, HMRC details and Council Tax records were registered at my new address, which mean I was there to be found by a simple trace. Yet, despite having 9 months to establish an address between the alleged incident (Dec 2017) and the default judgement (October 2018), no such steps were taken by the Claimant. This has led to a defective service and an irregular judgement. The court are respectfully asked to consider how this failure to validly serve the original proceedings is a ‘good reason’ why the default judgement should be set aside in line with CPR 13.3.

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.”
4. I am a law-abiding citizen who has acted in good faith and not ever tried to avoid paying known debts. When it came to light that I had overlooked updating my address on the V5C while I received letter from Marston Holdings regarding a Dart charge pending payment (which I had paid but failed to get reflected in their system), I immediately updated this. This demonstrates that I have not ever tried to evade any payments, fines, tax and have been diligent to correct any mistakes.
5. I therefore respectfully invite the court to set-aside the default judgement on the basis that there was no reasonable presumption that I as the defendant resided at the address in question, as none of the Claimant’s correspondence about this claim was responded to. This means that the proceedings that led to the default judgement were not served and as a result, service was defective.
6. Further, I ask the court to order the Claimant to refund the costs OR, in the alternative, to reserve the costs as I am concerned the Claimant will discontinue once the default judgement is set aside, leaving myself with a loss of court fees of £255. In such an event of discontinuation, I request that costs will be ordered to be refunded if the Court is alerted of the matter.

ORDER DISMISSING THE CLAIM
7. I also believe I should be allowed and have a real prospect of successfully defending the claim for the following reasons which are set out in further detail in this section:
i. the original Particulars of Claim submitted by the Claimant were not compliant with CPR Practice Direction 16, paragraph 7.5;
ii. the Parking Charge Notice issued by the Claimant does not comply with the Protection of Freedoms Act 2012 Schedule 4 paragraph 4 to enable the Claimant to seek their right to pursue Keeper Liability;
iii. the claim has been inflated by the Claimant to seek triple recovery in contrary to the Protection of Freedoms Act 2012 Schedule 4, Section 4(5)
iv. the permit system used by the Claimant places applicants at an unfair advantage
Accordingly, once it has considered the following arguments, the Court is invited to consider striking out the entire claim of its own initiative, using its case management powers pursuant to CPR 3.4.
8. The facts are that the vehicle, registration XXXXX, is one which I was the registered keeper. The claim appears to relate to an alleged debt arising from a driver parked at XXXXX on the material date of XXXX. At time of the alleged debt, the vehicle was insured for use by two named permitted drivers, of which I am one.
9. The Particulars of Claim state the claim is for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of the Terms and Conditions (T&Cs). It is stated that drivers are allowed to park in accordance with T+Cs of use. The Particulars of Claim are not explicit in stating on what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. I have assumed that the Claimant is seeking to rely on a claim based upon on agreement by conduct. However, if this is the case, the particulars do not meet the requirements of CPR Practice Direction 16, paragraph 7.5 as they do not set out what the terms and conditions of use were nor how they were alleged to be breached and by whom.
10. I am aware that the Protection of Freedoms Act 2012, Schedule 4, paragraph 4 provides a creditor with the right to recover any unpaid parking charges from the keeper of the vehicle (‘keeper liability’) but that right only applies if the conditions specified in paragraphs 5, 6, 11 and 12 are met, with paragraph 6 (b) stating that the creditor must have given a notice to keeper in accordance with paragraph 9. Paragraph 9 allows for a creditor to hold a registered keeper liable for a parking charge where the creditor does not know both the name of the driver and a current address for service for the driver. However, the Protection of Freedoms Act 2012 is clear that to rely on this paragraph the creditor must set out in its notice the information set out at paragraphs (2) (a)-(i) of the Act. Any non-compliance with these requirements voids any right for the creditor to pursue ‘keeper liability’.
11. The Claimant’s non-compliance with Protection of Freedoms Act 2012 is continued with the sum that it has sought through this claim. The Protection of Freedoms Act 2012 Schedule 4, Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. The Parking Charge Notice should have a charge quoted roughly around £100 and I am unsure as I still do not have any Parking charge notice issued. The Particulars of Claim (referring to the pending amount to be paid for the PCN on the Claimants website) have however escalated this charge to £279.18 which appears a brazen attempt at near triple recovery.

12. In summary, it is my position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4 and order the Claimant to pay the costs assessed as £255.
I believe that the facts stated in this witness statement 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.

 Any suggestions / comments please.
Thanks again!!

nosferatu1001

Is this a defence or a WS? 
It isnt actually a defence, it is actually a WS

Sjay0207

nosferatu1001 said:

Is this a defence or a WS? 
It isnt actually a defence, it is actually a WS

It  was a defense
I reckon I have repeated stuff about the case which has been mentioned in the witness already. So, I removed them and have drafted the Defence as below:

1. I, the Defendant, am the registered keeper of the registered vehicle XXX. I deny that I am liable to the Claimant for the entirety of the claim for each of the following reasons:

i. the Claim Form submitted by the Claimant and the Particulars of Claim within it are not compliant with Civil Procedure Rules (CPR) Practice Direction 22, paragraph 3.4 and Practice Direction 16, paragraph 7.5;
ii. the Parking Charge Notice issued by the Claimant does not comply with the Protection of Freedoms Act 2012 Schedule 4, paragraph 4 to enable the Claimant to seek their right to pursue the charges from me as the Registered Keeper;
iii. the claim has been inflated by the Claimant in contrary to the Protection of Freedoms Act 2012 Schedule 4, paragraph 4(5);
iv. the permit system used by the Claimant places applicants at a disadvantage causing unfair terms that lead to imbalance in the parties rights and obligations to the detriment of the consumer in contrary to Paragraph 62 of the Consumer Rights Act 2015.

2. The facts are that the vehicle, registration XXXXX, is one which I was the registered keeper. The claim appears to relate to an alleged debt arising from a driver parked at XXXX on the material date of XXXXX. At the time of the alleged debt, the vehicle was insured for use by two permitted drivers, of which I am one.

3. I have never received any PCN/Claim form till date. According to the mail received from County Court executive on request during my telephone call regarding the PCN/CCJ and outstanding charges, the claim is for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of the Terms and Conditions (T+Cs). It is stated that drivers are allowed to park in accordance with T+Cs of use. The Particulars of Claim are not explicit in stating on what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. I have assumed that the Claimant is seeking to rely on a claim based upon on agreement by conduct. However, if this is the case, the particulars of claim do not meet the requirements of CPR Practice Direction 16, paragraph 7.5 as they do not set out what the terms and conditions of use were nor how they were alleged to be breached and by whom.

4. After finding about the CCJ, I acted immediately to find the case related to it. There was no previous correspondence from the Claimant and to this date I do not have any document related to the PCN or Claim. The Court are therefore asked to give regard to my prompt action on learning of the default judgment which adheres to Civil Procedure Rule (CPR) 13.3 (2):

‘(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.

5. I am aware that the Protection of Freedoms Act 2012, Schedule 4, paragraph 4 provides a creditor with the right to recover any unpaid parking charges from the keeper of the vehicle (‘keeper liability’) but that right to keeper liability only applies if the conditions specified in paragraphs 5, 6, 11 and 12 are met, with paragraph 6 (b) stating that the creditor must have given a Notice to Keeper in accordance with paragraph 9. Paragraph 9 allows for a creditor to hold a registered keeper liable for a parking charge where the creditor does not know both the name of the driver and a current address for service for the driver. However, the Protection of Freedoms Act 2012 is clear that to rely on this paragraph the creditor must set out in its Notice to Keeper the information set out at paragraphs (2) (a)-(i) of the Act. Any non-compliance with these requirements voids any right for the creditor to pursue ‘keeper liability’.

6. The fact that I only learned of the default judgment on 10 Jun 2020 shows that the Claimant had not adhered to CPR 6.9 (3) in taking reasonable steps to ascertain my current address when they had reason to believe that the address they were sending documentation to me was one I no longer resided at. As the Claimant received no response from me to their correspondence, the Claimant had reasonable cause to question whether they were using an accurate address. At the time of the default judgment my driving licence, HMRC details and Council Tax records were registered at my new address, which mean I was there to be found by a simple trace. Yet, despite having 9 months to establish an address between the alleged incident (Dec 2017) and the default judgment (October 2018), no such steps were taken by the Claimant. This has led to a defective service and an irregular judgment. The court are respectfully asked to consider how this failure to validly serve the original proceedings is a ‘good reason’ why the default judgment should be set aside in line with CPR 13.3.

7. The Claimant’s non-compliance with Protection of Freedoms Act 2012 is continued with the sum that it has sought through this claim. The Protection of Freedoms Act 2012 Schedule 4, Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. The Parking Charge Notice should have a charge quoted roughly around £100 and I am unsure as I still do not have any Parking charge notice issued. The Particulars of Claim (referring to the pending amount to be paid for the PCN on the Claimants website) have however escalated this charge to £279.18 which appears a brazen attempt at near triple recovery.

8. In summary, it is my position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4 and order the Claimant to pay the costs assessed as £255.
I believe that the facts stated in this Defence are true.

Hope this is better now!!!

Comments please.

Thanks.

nosferatu1001

Is there a reason you arent using the template defence?

Sjay0207

nosferatu1001 said:

Is there a reason you arent using the template defence?

Apologies. Just found the Template for Defence.
On reading it, I found points 15 and 16 are related to the Particulars of Claim. I do not have any claim documents other than the PCN number and Claim number I received from the County Court. Shall I omit 15 and 16 in my defence ?

Thanks