CCJ from EPS - Need set aside advice please!

Redx

I don't understand the content issue you pointed out but they should be on the same page , so either alter to suit or show us the differences , don't assume we understand your thought process

My point , each should support the other , so maybe one or both need adapting to suit ? 

Under normal circumstances , the WS supports the Defence on file

FGLLA

Redx said:

I don't understand the content issue you pointed out but they should be on the same page , so either alter to suit or show us the differences , don't assume we understand your thought process

My point , each should support the other , so maybe one or both need adapting to suit ? 

Under normal circumstances , the WS supports the Defence on file

Apologies, what I mean is that (in my limited very basic understanding!), my Defence focuses on the Abuse of Process argument, whereas my witness statement section 2 focuses on the RK not necessarily being the driver at the time.

While they aren't contradictory, should they both focus on the same points? If they are submitted together and are complimentary I guess this isn't so much of an issue.

nosferatu1001

Why is there nothing to put in 18? Its your chance to explain some of the circumstances. Its unusual to have nothing there at all.
The defence template talks about no liability under POFA, and tals about the driver and keeper identities no? Have you read the entire template top to bottom, as the issue youre seeing suggests youre missing something fundamental. The defence template is NOT solely about abuse of process. Not in the slightest. 

Redx

A defence should concentrate on the PCN and the law and the claimant and their failures , the reasons why the PCN contract fails , not the abuse of process

The abuse of process is about the extra spurious charges and why they should not be allowed , but does not address the core terms of the parking contract

Let us assume that either the judge agrees that it was abuse and chucks it out , or the claimant withdraws it , then the parts left in the defence should address the core terms , the PCN  so make sure they do

The abuse of process has been added into the mix because it's true , but a defence that only deals with abuse of process is not a defence against the core issues

If this was Parking Eye instead of Excel , there would be no spurious extra charges , no abuse of process , just you defending yourself against the PCN charge only , capiche ??

If the Keeper (claimant) was definitely not the driver , say so in both , loudly , simply , forcefully

They should be compatible with each other , not contradictory

A WS should expand on the defence , not repeat it

A WS should include reference to all exhibits too , as your initials plus a number , as in TGW/01 , TGW/02 etc , your summary costs assessment uses one of those , usually the last number , say TGW/09

Save a temporary draft of the defence and remove or redact the abuse of process paragraphs , the parts left in should address defending the PCN , as if it was a Parking Eye case

Then add back the redacted paragraphs , proof reading all of it

henrik777

You're putting more effort in to a template defence than in to the actual set aside ?

You stated they served incorrectly but actually said very little about it. Nothing about the date of parking event. Nothing to explain the timeline of the claimants actions (event, claim lodged, default granted etc) and how this corresponds with your change of address and nothing about your V5.

Further, you don't seem to have a fall back position if the service argument fails, which is the point you'll need a defence (kind of).

Coupon-mad

I don't see why you have NOTHING to say in your defence at #18. 

You cannot possibly have NO FACTS to tell the Judge about anything relating to this car park? 

Unless you don't know what the CCJ is about, and have no idea what the signs look like or what the alleged breach even was or who was driving, in which case THAT is what the Defendant says in #18.

FGLLA

nosferatu1001 said:

Why is there nothing to put in 18? Its your chance to explain some of the circumstances. Its unusual to have nothing there at all.
The defence template talks about no liability under POFA, and tals about the driver and keeper identities no? Have you read the entire template top to bottom, as the issue youre seeing suggests youre missing something fundamental. The defence template is NOT solely about abuse of process. Not in the slightest. 

The template mentions:
"18.      e.g. you might talk about having a permit or 'permission' to park; or an attempt being made to pay but the app or machine didn't work; or the driver/passenger being disabled and needing more time under the Equality Act 2010; or in residential cases, your primacy of contract and your lease; or maybe the ATA grace periods were breached; or the fact it was dark/rainy and no signs were seen; or that it was far from clear how driver could exempt their vehicle using a hidden keypad they knew nothing about/was not working).

Careful not to 'blab' about being the driver if you are intending to rely upon the POFA!"

It reads like this section is for the driver to explain why they didn't purchase a ticket? The driver hasn't been identified, so could I copy in this section from my WS :

"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."?

Sorry i didn't say that the Defence template is solely about the AoP, just that it seems to be the main/strongest defence to have the claim thrown out?

Redx

Focus on obtaining a set aside , otherwise the original claim won't get thrown out

The defence you used is normally used in the early stages , hence why coupon mad told you to adapt it accordingly , because if the claimant drops the aop section (or the judge rules out only that part of their total claim)  , it won't get thrown out , assuming you are granted your set aside

The aim of getting it thrown out usually applies when the usual steps are being followed from start to finish, whereas yours is in reverse and there is already a default judgment , so your arguments need to address everything and cover all eventualities , especially the core issues (as I told you earlier)

The aop is not a core issue , the PCN is

Read the advice above because you haven't done what I said if this was a PE case !!

nosferatu1001

Youre spending more time on an optional document than on the key one - the WS that supports the set aside. 
KISS

nosferatu1001

AOP is the most likely to get the court to simply strike the claim out without a hearing. BUt they might not. 
AOP is not a defence to the underlying claim. It cannot be. We've said this ad nauseum. If the AOP wasnt included by them, you still have to file a defence to the actual CLAIM. and thats what we're telling you.