CCJ from EPS - Need set aside advice please!

FGLLA

Hi All,

I need help putting together a draft Defence to a CCJ set-aside claim please! I'll go through the details below:

On Friday 29th May 2020 I found out during a credit check that I'd received a CCJ in March 2020. I called the court on Monday 1st June to find out the details of the CCJ and they emailed me the details. A parking company Excel Parking Services, had applied for the CCJ due to an unpaid parking charge from September 2019.

I didn't receive any notice of this CCJ as all paperwork from EPS had been sent to a previous address, which I had moved out of in Nov 2018.

After reading the newbie link about ccjs etc I learned I could set aside the CCJ, so on June 3rd I sent in my application to set-aside the judgement. I sent in the below witness statement based on some of the templates found on the links:
----------------------------------------------------

N THE COUNTY COURT BUSINESS CENTRE
Claim No. XXX
BETWEEN:
Excel Parking Services Ltd (Claimant)
-- and --
XXX (Defendant)
_____________________________________
WITNESS STATEMENT
_____________________________________

I am XXX  and I am the Defendant in this matter.
This my supporting Statement in support of my application dated 2nd June 2020 to:
· Set aside the Default Judgement dated 24th March 2020 as it was not properly served at my current address;
· Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
· Order for the original claim to be dismissed.
· Any enforcement proceedings regarding the default CCJ are put on hold pending the outcome of the application for the judgement to be set aside.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in March 2020. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until I was doing a check on my credit file on 29th May 2020. I understand that this Claim was served at an OLD ADDRESS (XXX ) in Sept 2019. However, I moved to a new address in November 2018. In support of this I can provide confirmation from my Estate Agent, in the form of my tenancy agreement, and Derbyshire County Council showing my updated details for the purposes of paying Council tax.

1.2. I have also never received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.

1.3. On 1st June 2020 I contacted County Court Business Centre to find out details of the Default Judgement. They emailed me the claimant name and the reference number but the court email contains no specific details of the alleged incident. I used the details supplied to log in to the claimants online system to find out further details of the claim.

1.4. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

1.5. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.6. Considering the above I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.



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. 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.

2.5. I further submit that the Claimant’s claim is without merit as the 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.

2.6. 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.

2.7. In order to make informed decisions and statements in my defence as keeper of the vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.
Full name: XXX 

Dated: 2nd June 2020

Signed: ________________________________

******************************************************************

About 2 weeks later I received a "General form of Judgement or Order" from my local Court.

It details time and date for my hearing and also has the following instructions, (the bits I've extracted below are the bits I need help with please!) :
3. Important: The application will be struck out automatically at 4pm 6th July unless, before that time, the defendant sends to the Court and the Claimant a draft defence to the claim....
4. By 4pm 6th July, the defendant must also send a witness statement stating the following matters, unless they have already been stated within the defendants application notice or statement filed with it:
a. any allegation that the claimant had a reason to believe that the address which the claim form was sent was one at which the defendant no longer resided...
...
d.any other circumstances which the defendant will ask the Court to take into consideration in deciding the application. 


So firstly...I'm struggling to figure out what is the draft defence! Is that the part 2 I've already put in my witness statement?

Many Thanks!

Redx

Seems to me that you have not submitted a defence , something required in order to prove that a set aside should be granted , so a defence to the original PCN , so they have asked for one

Normally it's

File a defence
File a DQ to claimant and CCBC

When it's time , a WS plus Exhibits plus summary costs assessment to your local nominated court

So anything missing needs filing with the court and claimant by deadline day according to the court order above

Draft a defence and post it below for critique , after reading the sticky threads

Coupon-mad

3. Important: The application will be struck out automatically at 4pm 6th July unless, before that time, the defendant sends to the Court and the Claimant a draft defence to the claim....

OK so use the forum template defence, you'll have it done in an hour!  Top of this board.

4. By 4pm 6th July, the defendant must also send a witness statement stating the following matters, unless they have already been stated within the defendants application notice or statement filed with it:
a. any allegation that the claimant had a reason to believe that the address which the claim form was sent was one at which the defendant no longer resided...
...
d.any other circumstances which the defendant will ask the Court to take into consideration in deciding the application.

This needs you to explain in a supplementary WS, why you believe Excel should have had 'reason to believe' that you did not live at the address provided by the DVLA.   That would be like you see on other set aside threads where people talk about:

- the fact that tenants change address every year, on average, and 
- the fact that Excel were getting no responses to their letters, and
- the fact that they have a duty to take reasonable steps to locate a person, and
- that the DVLA reminded Parking Operators that they should use tracing agents, but Excel clearly didn't, and
- quote the stuff from Sir Oliver Heald about default CCJs by parking firms:

https://www.gov.uk/government/news/new-measures-to-protect-consumers-from-debt-claims

http://parking-prankster.blogspot.com/2016/12/government-announce-ccj-review-due-to.html

FGLLA

Many thanks guys. I've drafted the Defence which is essentially the 2020 template at the top of the board. I modified the red parts to make it specific to my case, and I've also removed paragraph 18 as I had nothing to put in there?
It's nearly identical to the template, I guess you don't need to see it again?
Just drafting the witness statement now, thanks again.

I had a question though. The parking offence was alleged to have been on 5th Sept 2019. and the CCJ was on my record by end of March 2020. Within 6 months! Im not sure how long the CCJ application process was but say it was 1 month, this means that in only 5 months it escalated from pcn to ccj? That seems quite short to me! Can I use this in my defence?

FGLLA

Please see my draft WS below also:

IN THE COUNTY COURT BUSINESS CENTRE

Claim No. XXX

BETWEEN:

Excel Parking Services Ltd (Claimant)


-- and --


XXX (Defendant)


_____________________________________


WITNESS STATEMENT

______________________________________




I am XXXXX and I am the Defendant in this matter.

This my supporting Statement in support of my application dated 2nd June 2020 to:
· Set aside the Default Judgement dated 24th March 2020 as it was not properly served at my current address;
· Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
· Order for the original claim to be dismissed.
· Any enforcement proceedings regarding the default CCJ are put on hold pending the outcome of the application for the judgement to be set aside.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in March 2020. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement G9QZ731T until I was doing a check on my credit file on 29th May 2020. I understand that this Claim was served at an OLD ADDRESS (XX in March 2020. However, I moved to a new address in November 2018. In support of this I can provide confirmation from my Estate Agent, in the form of my tenancy agreement, and Derbyshire County Council showing my updated details for the purposes of paying Council tax.

1.2. I have also never received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.

1.3. After being made aware of the CCJ on Friday 29th May 2020, the next working day, Monday 1st June, I promptly contacted the County Court Business Centre to find out details of the Default Judgement. They emailed me the claimant name and the reference number but the court email contains no specific details of the alleged incident. I used the details supplied to log in to the claimants online system to find out further details of the claim.

1.4. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

1.5. I believe that the claimant had a reason to believe that the address which the claim form was sent was one at which the defendant no longer resided as:

- The fact that Excel were getting no responses to their letters, and may in fact have been getting post returned by the current tenants.

- The fact that they have a duty to take reasonable steps to locate a person

- That the DVLA reminded Parking Operators that they should use tracing agents, but Excel clearly did not

- Justice Minister Sir Oliver Heald said:

“It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments.

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.”

1.6. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.7. Considering the above I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.



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. 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.

2.5. I further submit that the Claimant’s claim is without merit as the 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.

2.6. 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.

2.7. In order to make informed decisions and statements in my defence as keeper of the vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.
Full name: XXX

Dated: 2nd June 2020

Signed: ________________________________

******************************************************************

Le_Kirk

You need the longer new statement of truth - Ask Auntie Google.

D_P_Dance

Nine times out of ten these tickets are scams, so consider complaining to your MP., it can cause the scammer extra costs and work, and in some cases, cancellation. 

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up,

Just as the clampers were finally closed down, so hopefully will many DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/of these Private Parking Companies.

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

FGLLA

Le_Kirk said:

You need the longer new statement of truth - Ask Auntie Google.

Ok I found this one which I'll add to my WS:

“I believe that the facts stated in [these/this] [Particulars of Claim/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.”

Redx

I do not believe there is any mileage in the PCN to CCJ time being only 6 months instead of say 3 to 6 years

Adapt that statement of truth accordingly , or pinch the correct wording from a recent statement of truth from other threads on here, there are two , one for a defence , one for a WS , so slightly different , but definitely not what you wrote in your first attempt above (your short one is now defunct)

So ensure that your defence contains the defence version and your WS contains the WS version , even if the claimant has used the old shorter one

Take note , this is all to gain a set aside at this time , the original court case won't be decided at the same time , it will be at a later date

FGLLA

Redx said:

I do not believe there is any mileage in the PCN to CCJ time being only 6 months instead of say 3 to 6 years

Adapt that statement of truth accordingly , or pinch the correct wording from a recent statement of truth from other threads on here, there are two , one for a defence , one for a WS , so slightly different , but definitely not what you wrote in your first attempt above (your short one is now defunct)

So ensure that your defence contains the defence version and your WS contains the WS version , even if the claimant has used the old shorter one

Take note , this is all to gain a set aside at this time , the original court case won't be decided at the same time , it will be at a later date

Thanks, I've gt this one in my witness statement:
"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."

The one in my Defence is from the new 2020 template which is similar but has the word Defence instead of WS.
and thanks for answering the other questions too.

FGLLA

Would you guys say the Defence and the WS are ready to send now?
One of my concerns is that Section 2 in my WS reads different to my Defence. Does that matter? I'll be sending them both at the same time with the southampton judgement attached to my Defence.