CCJ - Unsure If I can fight it!

BangeF2

Le_Kirk said:

No to mediation then.

I just wanted to check that if the n180 form is completed and i do agree to a mediation, isn't the court giving instructions on how to resolve the matter? or this is something that usually put the claimant at an advantage rather than me the defendant? 

Coupon-mad

Read the Mediation Mary thread.

BangeF2

update/ assistance required: @Coupon-mad @LeKirk @KeithP


Recap: 
CCJ 1 - is the one where they asked for a mediation and I refused and still waiting to hear on this.

CCJ 2 - is the one I found lodged at the bottom of the SAR request for CCJ 1 - they refused set aside and said I could appeal. 
I appealed the decision made not to set aside and included these reasons as shared by @Coupon-mad:

''You had TWO CLAIMS and it was the later one that was rejected for set aside, yes?

I can't guarantee a win but you MUST concentrate on the error in law.

- Two claims offends against the trite law doctrine of cause of action estoppel.  The Judge erred by not considering that the claims before him related to duplicate facts and matters that should always have been advanced as a single claim

Secondly,

- their conduct in not checking for the right address for service offends against the Civil Procedure Rules about filing claims (look them up to find the right CPR) AND it offends specifically against their Trade body CoP (look it up and quote what it says about checking addresses before court action).  Even if you'd changed your DVLA address before the claims were filed, the PPC can only ask the DVLA once so would not have been able to rely in that notoriously unreliable database and HAD TO do a trace before filing any claim.

And thirdly,

- CPR1 is the overriding objective, to deal with cases justly and at minimal cost.  The Claimant failed to do this by filing one claim.  Filing two is an abuse of process, was clearly unjust and caused two sets of costs and the learned Judge erred by not considering this and applying CPR1 to his own decision, whereby it would have been just and not have caused any more costs, for the upcoming PCN defence hearing to have been used to hear both claims.

fourthly, 

- to file two claims by splitting exact match PCNs up is clearly unfair and it is conduct that may offend against the Consumer Rights Act 2015 which covers consumer contracts and the overarching requirement of fairness and open dealing.  This is not legislation that a consumer, or any party, has to raise in their submissions  (at all) because s71 sets a duty upon the courts to consider the fairness, transparency and open dealing tests of the CRA 2015 whether a party raises it or not.

On any reasonable interpretation when viewed by an average person, it cannot be fair for a parking firm to raise two separate claims for duplicate fact matters under contract law (where the only difference is the date of PCNs) AND to rely on a known unreliable database AND not to comply with their own Code of Practice, which caused two CCJs and TWO lots of £255 court fees instead of one. The learned Judge made no reference to fairness and erred in law by not considering (properly, or at all) the court's duty in s71 CRA 2015.

- it is clear that the learned Judge did not consider the CRA 2015 because the claims both include additional false costs which are well known to the courts in parking cases and almost invariably disallowed, so it cannot be fair or just to let the second enhanced CCJ stand.  There are more points of defence against the core parking charges but the fact that part of the claims were abusive and unfair, yet one CCJ was allowed to remain unchallenged, demonstrates a failure to apply s71 of the CRA 2015 to the 'contractual' alleged claim itself.

fifthly;

- even if the court is not satisfied that CPR 13.2 was met, then 13.3 applied and there was clearly good reason to set aside both CCJs and allow both cases to be heard, especially as a hearing is to be listed to hear the first claim.  The Defendant has more than a reasonable prospect of defending these PCNs, is preparing to do so in the next hearing for the (set aside) first case and should have been given the opportunity to defend all of them.  As these PCNs should have been a matter that with any due diligence should have been advanced as one claim it would have met CPR1 to have consolidated the claims, if not strike the second abusive claim out.


thus your application needs to continue to conclude:

- the learned Judge erred in law and both CCJs should have been set aside and the second claim should have been struck out due to cause of action estoppel and the Claimant's own conduct.  It was never enough for the Claimant to rely on old, unreliable DVLA data and this is precisely why their Code of Practice covers that fact.

- the Judge also erred by not ordering that the Claimant do pay your set aside court fees (£255 x 2) given that the major failure was the trader's (failure to comply with their own Code of Practice yet proclaiming that they had, breaches the CPUTRs which is a criminal offence) and caused the CCJs and directly caused double court fees for a litigant in person.

- Further and in the alternative, there was only one hearing and the court took fee payment for two, and the Defendant has been left to shoulder both fee costs.  Even if the court is not persuaded that the Claimant improperly filed these claims and should cover the set aside application costs, the court should have refunded one, in part or in whole.''


This was the appeal response:

1. The application for permission to appeal is refused 

2. Because the determination has been made on consideration of the paper only, the appellant (me) may request in writing to be filed at course within 7 days of service of this order, a reconsideration of application for permission to appeal an oral hearing before a circuit judge pursuant to CPR 52.4(2) and any such request must be served on the respondent to the appeal (cpr52 PDB paragraph 7.4)

Reasons:

1. The proposed appeal has no real prospects of success and there are no other compelling reasons for permission to be granted. There are no particulars given that would indicate the court below took into account irrelevant matters or failed to take into account relevant matters when reaching its conclusion not exercised its discretion outside the generous ambit afforded to a judge at first instance.

2. The appeal proceeds on the bss of a disagreement wit the exercise of the broad discretion afforded to a judge at first istance, An application to set judgement aside is a multi factoral consideration and particularly diffcult to overturn. There is nothing to suggest that the judge would exceed the discretion nd was plainly wrong. 

3. Aspects of the proposed appeal are simply wrong in law. They payment of two fees does not entitle a person to two hearing if it is a better use of court resources and more proportionate to hold two hearing at the same time (why was i charged for two hearing then?!

Im not sure where to go from here? Can I continue to appeal? please help.

BangeF2

2. Because the determination has been made on consideration of the paper only, the appellant (me) may request in writing to be filed at course within 7 days of service of this order, a reconsideration of application for permission to appeal an oral hearing before a circuit judge pursuant to CPR 52.4(2) and any such request must be served on the respondent to the appeal (cpr52 PDB paragraph 7.4)

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52

What form and paperwork would I need to serve to get the oral hearing? 

Le_Kirk

BangeF2 said:

2. Because the determination has been made on consideration of the paper only, the appellant (me) may request in writing to be filed at course within 7 days of service of this order, a reconsideration of application for permission to appeal an oral hearing before a circuit judge pursuant to CPR 52.4(2) and any such request must be served on the respondent to the appeal (cpr52 PDB paragraph 7.4)

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part52

What form and paperwork would I need to serve to get the oral hearing? 

Have you checked out the CPRs mentioned?  This goes beyond the scope of a parking forum and you a) might be lucky and get @bargepole and/or @Johnersh chipping in or b) hop over to legal beagles.

Coupon-mad

I think that's the end of the line for that one but you could follow the steps to ask for an oral hearing of your application and try to push against the closed door that's in your face.  

The Circuit Judge hasn't taken into account that the CCJ was a mandatory set aside situation ((CPR 13.2) or he thinks it wasn't.  That would be what to be saying orally.  CPR 13.2 applied. 

Therefore he thinks that the first Judge looked at all the factors and was exercising discretion whether to set aside or not, under CPR 13.3 which is hard to argue against precisely because a Judge can't be 'plainly wrong' if they used discretion (13.3) which only says a CCJ 'may' be set aside.

BangeF2

@Le_Kirk @Coupon-mad

Is it worth writing a letter to the courts / judges and stating how this puts me at a further disadvantage in society due to an error on the claimants part? I won't be able to get a mortgage, it will increase my premiums, i will be denied credit for small things like a mobile phone contract and even impacts my business insurance!

Im already at a disadvantage being a female, south asian whos actually a therapist/coach and works to improve society and has 0 police/criminal offences. The whole things is just so unfair. 

Coupon-mad

No, that's the opposite of what to write (or say, if you ask for an oral hearing of your application).  Absolutely never give a Judge a whiff of credit cleansing.

There is no point writing to the court.  That decision gives you one option only, to ask for an oral hearing and if you get that, it is ALL about CPR 13.2 not being applied.

D_P_Dance

never give a Judge a whiff of credit cleansing.

What is so heinous about this?   If you move house and get a default CCJ because of it, what is wrong with using legal processws to eradicate this.   Whtyon earth should a judge frown on it?   Or is this an urban myth? 

BangeF2

D_P_Dance said:

never give a Judge a whiff of credit cleansing.

What is so heinous about this?   If you move house and get a default CCJ because of it, what is wrong with using legal processws to eradicate this.   Whtyon earth should a judge frown on it?   Or is this an urban myth? 

is it worth sending a letter to the courts?