CCJ from EPS - Need set aside advice please!

FGLLA

Coupon-mad said:

On 28th August I had my hearing again, it was quite tense, however the Judge ordered for my CCJ to be set aside based on me having a strong defence to the claim. She also ordered for Excel to pay my application costs and costs for attending the hearing which was great.

Brilliant - top result!  Have they paid yet?  They need to this month!

Regarding the CCJ, how do I now get this removed from my credit file? Do the Courts automatically ask for it to be removed similar to how they put it on? Or do I have to contact the credit agencies to inform them?

Should happen automatically.

Do I need to file this addendum defence? and If so, what do I put in it

I would submit a WS & evidence and a revised costs assessment including the costs of the next hearing, if it proceeds.

as the Judge mentioned I had a strong case, is it possible/allowed for me to contact the claimant and ask to settle this out of court? i.e. ask them to cancel the claim against me as they are likely to lose and will have to pay more of my costs?

Yes, why not email or write to Excel and say you look forward to receiving your costs before the date set by the Judge and whilst you have not needed to amend your defence, you are hereby serving a Witness Statement and evidence and you would like to also make a 'drop hands' offer, i.e. that both sides walk away after Excel have paid your previous costs as ordered.  This has value to them because the Judge has stated that your defence is strong and will save Excel exposure to further costs for another hearing. Give them 7 days.

nosferatu1001 said:

As above.
Make srure you file and serve a WS and evidence. No need for a new defence. 

You have ajudge annoyed at them - automatically giving you wasted costs is sadly unusual. 

No they haven't paid yet! They were supposed to make the first payment yesterday by 4pm but I haven't received anything.
I sent them an email on Tuesday this week asking how they will make payment, cheque or bank transfer etc but no response. How do I chase them up? Through the courts?

I'll submit another WS and evidence, I guess this one will be specific to the actual claim rather than the set-aside. I will also update my costs!

I'll also mention the "drop hands" offer as tbh I'd rather not go back to a court hearing the first one itself was nerve racking!

Thanks again for the support guys

nosferatu1001

Warrant of control. You have an Order statring they owe you, so you can apply through tht ecourts. 

Yes, THIS WS is solely about the claim. Set aside is done. 

Coupon-mad

As the OP needs to submit a WS and evidence for the defence to the PCN, he/she should seize the moment in the first couple of paragraphs, to tell the Judge that VCS are in breach of an Order of the court and have not paid your costs following the set aside. 

Also, you and your family and friends really MUST make sure you do this, consumer voices are being heard for a short window:

Please now make a real difference - A TASK FOR SEPTEMBER.

The Government is (this month only) consulting about a new statutory code of practice (CoP) and framework to rein in the rogue parking firms.  Read and comment on the draft CoP proposal and the enforcement framework consultation, and get everyone you know to do the same.

You will need to register to comment on the CoP and enter an occupation even if you are retired or a homemaker, but otherwise it is easy to navigate, and comment upon each section/subsection individually. You can save comments to edit later and or submit comments once you are happy with them.

https://standardsdevelopment.bsigroup.com/projects/2020-00193#/section

You do not need to register to comment on the enforcement framework which can be found here. It has a link on page 5 to make comments.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/913272/Code_Enforcement_Framework_consultation.pdf

At the very least, we say the parking charge level should be £50/£25 or higher level £70/£35, as per Council PCNs in E&W.  

And we say the added fake 'debt recovery' costs are just double counting the cost of letters, and MUST GO because that is unfair and illegal.

Please be heard.  You can bet the hundreds of PPCs will be commenting.

No apologies for repeating this vital 'call for action' to consumers, on every thread this month!

FGLLA

So a few updates:
- As of yesterday Excel have now missed the date for the 2nd payment from the court order. I'm in the process of raising the warrant of control for the outstanding amount.

- At the hearing for the set aside, the judge ordered that they should resend me the claim form. I've received this, the issue date on it is from February 2020. The form also says I need to reply within 19 days of the issue date. Do I still need to respond to the claim form?

- Whilst writing my new witness statement and collecting evidence...I've checked my bank statements for the date the contravention took place, and it seems I actually did make a payment for parking. The reason for the PCN is "parking without displaying a valid ticket". I checked how I paid for the ticket, and it looks like I used the online payment method. Using the online method would mean I wouldn't actually have a ticket to display.
The only problem is, the online ticket was issued 21 minutes after the time of the contravention. It's likely I went to get change from the playcenter we were visiting, failed to get change, and decided to pay via the online method instead. This would easily have totaled over 20 minutes as the playcenter is usually very busy. One of the notices on the car park notice says payments needs to be made with 5 minutes of entering the car park, can I argue this is unreasonably short as either, going to get change, or paying online, can;t be completed within 5 minutes of entering?

Coupon-mad

At the hearing for the set aside, the judge ordered that they should resend me the claim form. I've received this, the issue date on it is from February 2020. The form also says I need to reply within 19 days of the issue date. Do I still need to respond to the claim form?

Yes but in the way and by the deadline the Judge's Order says, and not using MCOL, of course, as it's outside that route.

The only problem is, the online ticket was issued 21 minutes after the time of the contravention. It's likely I went to get change from the playcenter we were visiting, failed to get change, and decided to pay via the online method instead. This would easily have totaled over 20 minutes as the playcenter is usually very busy. One of the notices on the car park notice says payments needs to be made with 5 minutes of entering the car park, can I argue this is unreasonably short as either, going to get change, or paying online, can;t be completed within 5 minutes of entering?

But that's not the reason on the PCN, and by paying online, as you say, you are not expected to display a ticket.  Was the PCN issued before you managed to pay, do you know?

Whilst writing my new witness statement and collecting evidence...I've checked my bank statements for the date the contravention took place, and it seems I actually did make a payment for parking. The reason for the PCN is "parking without displaying a valid ticket". I checked how I paid for the ticket, and it looks like I used the online payment method. Using the online method would mean I wouldn't actually have a ticket to display.

That is a good point for your defence and Witness statement that you must now send to the Judge, with your evidence.

FGLLA

Coupon-mad said:

At the hearing for the set aside, the judge ordered that they should resend me the claim form. I've received this, the issue date on it is from February 2020. The form also says I need to reply within 19 days of the issue date. Do I still need to respond to the claim form?

Yes but in the way and by the deadline the Judge's Order says, and not using MCOL, of course, as it's outside that route.

Ok Ill respond in the way the judge ordered by sending in the updated WS and evidence by the end of next week.

Coupon-mad said:

The only problem is, the online ticket was issued 21 minutes after the time of the contravention. It's likely I went to get change from the playcenter we were visiting, failed to get change, and decided to pay via the online method instead. This would easily have totaled over 20 minutes as the playcenter is usually very busy. One of the notices on the car park notice says payments needs to be made with 5 minutes of entering the car park, can I argue this is unreasonably short as either, going to get change, or paying online, can;t be completed within 5 minutes of entering?

But that's not the reason on the PCN, and by paying online, as you say, you are not expected to display a ticket.  Was the PCN issued before you managed to pay, do you know?.

Yes the PCN was issued at 6.01pm and my online ticket started at 6.22pm. I have an automated email receipt of the transaction.

Coupon-mad said:

Whilst writing my new witness statement and collecting evidence...I've checked my bank statements for the date the contravention took place, and it seems I actually did make a payment for parking. The reason for the PCN is "parking without displaying a valid ticket". I checked how I paid for the ticket, and it looks like I used the online payment method. Using the online method would mean I wouldn't actually have a ticket to display.

That is a good point for your defence and Witness statement that you must now send to the Judge, with your evidence.

I will include that in my documents for sure, however, will the judge not just say, at the time of the PCN, 6.01pm, there was no valid ticket in place, whether displayed or online?
So my only defence could be that I was in the process of getting it?

Coupon-mad

Ok Ill respond in the way the judge ordered by sending in the updated WS and evidence by the end of next week.

Defence, WS and evidence, surely?  The Judge will have said 'defence'.  We are saying, ''all three''.

my only defence could be that I was in the process of getting it?

Not your only defence!  Signage, no landowner authority, what is the actual grace period, given 5 minutes is unlikely to be what the landowner authorised because that's unworkable, plus the double recovery of £60.

FGLLA

Coupon-mad said:

Ok Ill respond in the way the judge ordered by sending in the updated WS and evidence by the end of next week.

Defence, WS and evidence, surely?  The Judge will have said 'defence'.  We are saying, ''all three''.

Yes apologies, the order states I "can file an addendum defence, noting that the defendant has already filed a substantive defence". So I'll be updating all 3 and filing and serving them.

Coupon-mad said:

my only defence could be that I was in the process of getting it?

Not your only defence!  Signage, no landowner authority, what is the actual grace period, given 5 minutes is unlikely to be what the landowner authorised because that's unworkable, plus the double recovery of £60.

Apologies again, I meant my only defence to the point of the time on my ticket being after the time on the PCN! I will still be leaving the other defences you've mentioned in place. The signs allow 5 minutes, but I'll mention this is unreasonable.
I'll upload my completed docs for review hopefully this weekend.

Coupon-mad

You can say the 5 minutes is an unfair term given the time it takes to attempt to use the payment methods, when the 5 minutes has already started to be counted before you even found a parking space.

Use in evidence the grace periods page from the right version of the Code of Practice applicable at the time, and state that you doubt the intentions of the landowner were that everyone who attempts to pay - get coins (download an app that takes more than 10 minutes in itself!) is penalised within minutes whatever they do, such that payers are treated unfairly, the same as non-payers.

Point to the CRA 2015 about the requirement for terms to be fair and transparent.  Invite the Judge to find, 5 minutes isn't a fair term.

FGLLA

Ok I've update my WS and Defence, I'll paste extracts below for review:

WS

This my Witness Statement in support of my application dated XXX JUN 2020 ( to:

· Order for the claim to be dismissed in its entirety.

· Order to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14, please see XXXX

 

1. Background – Set Aside CCJ

1.1. The Claimant obtained a Default Judgement against me as the Defendant in March 2020. However, this claim form had 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. This Claim was served at an OLD ADDRESS (12 Templeton Close, Derby, DE3 9DR) in Sept 2019. However, I moved to a new address in November 2018.

1.2. Due to an old address being used, I 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, and the following day, Tuesday 2nd June, I applied for the CCJ to be set-aside.

1.4. On the 28th of August, in the County Court at Derby, it was ordered for the CCJ to be set aside, due to the “substantive defence” to the original claim.

1.5. It was also ordered for the Claimant to pay back my costs, £xx to be paid by xx September and £xxx to be paid by xx September. However, as of the 20th September, these costs are still outstanding and thus the Claimant is in breach of an Order of the Court. I have sent an email to the Claimant, and to their legal representatives, asking how payment will be made, but I have not received any response. I have completed a N323 – Warrant of Control form, which I will be submitting on xx September.

2. Order dismissing the Claim

2.1. I 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. The Claimant identifies the breach as “parked without displaying a valid ticket/permit”. However, having checked my records, I paid for a ticket via the Claimant’s online system, www.connectcashlessparking.com, as identified on the Claimant’s signs. I have attached email confirmation of this purchase MMXX. As the fee was paid for online, it was impossible for me to display this ticket as no ticket had been produced to display.

2.3. On the date of the alleged breach, after entering the car park, I parked my vehicle and proceeded to the ticket machine and signs to read the extensive terms and conditions of parking and fees and to purchase a ticket. I searched for some change but could not find enough and proceeded to a local business in order to obtain some. After failing to obtain some change, I proceeded to pay via the alternative online payment system instead.

2.4. One of the terms and conditions of parking state that parking should be made within 5 minutes of entering the car park; however, this is highly unfair given the time it takes to complete the actions mentioned above, when the 5 minutes has already started to be counted before a parking space has even been found. This term is also non-compliant to the BPA code of practice which states that a reasonable grace period should be allowed, and also the CRA 2015 which requires terms to be fair and transparent. Furthermore, I was accompanied by 2 very small children at the time, making compliance to this already unfair term even more difficult

2.5. 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.

2.6. 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.

2.7. 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.

2.8. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14, please see XXXX

Statement of Truth:
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.