Applying for Set Aside for CCJ with Civil Enforcement Limited

Catch_0x16

Hello everyone.
I recently applied for a mortgage only to find to my surprise I'd failed a credit check. In a state of shock and horror I checked my credit report to find I had an unsatisfied CCJ sitting there. After a phone call adventure, I became aware that it was in relation to an unpaid parking fine from Civil Enforcement Limited. I called the hospital at which the fine was issued, and they managed to arrange a call to me from a member of CEL. I spoke to 'Laura' who informed me that the offence in question happened on the 14th of December, 2017. If you want another giggle... the parking is free at the hospital! You enter your vehicle registration into a tablet hung inside most entry doors. There are numerous local news articles about people receiving these fines in error 

Details of the fine

• Default judgement issued 26th Oct 2018
• I moved into my new house in November 2017
• I registered my new address with DVLA in November 2017...
• Alleged offence occurred December 2017... (according to lady on phone)
• CCJ lists old address
• Seen/heard nothing about the PCN/default judgement, no efforts made to find me
• Cost: £278!

Actions taken so far

• E-mailed appeals@ce-service.co.uk requesting consent to set aside order.
• Contents of email:

To whom it may concern. 

I am writing to you in order to ask your consent for a set aside order regarding default judgement XXXXXXXX dated XX/Oct/2018. I will take no further action pending your reply until Wednesday the 29th of July, 2020 (7 days from receipt of this notice). If no response is received within this time frame, I shall continue to make the application for a set aside order without consent. 

Yours faithfully

Totally Rad-Name

What I shall do now
Honestly, struggling a little. I'm new to all of this and I'm trying as hard as I can not to get overwhelmed. I want to start this forum thread in order to have a place to share thoughts, as well as document my progress, plan, write down my thoughts and most importantly, receive advice from you wonderful people!
I've downloaded the 2020 version of the defence template and will make my changes. I'm not sure what I need to put in the draft order and draft witness statement documents though, are they larger or smaller in terms of detail? Do templates for those exist too?
Sorry if I should've read some sticky post somewhere, I'm just a bit flustered and finding it hard to compute everything, it's easy to miss things

I'll post my draft defence soon, shouldn't take too long to hash out.

Regards

Catch_0x16

I should also add. I was certainly driving the car that day, I was taking my wife to visit the birthing centre. My father may well have also been on my insurance, but I'd rather not lie. I'm 99% sure that I added the vehicle registration to the little tablet thing, how can I word my defence in such a way as to suggest that there is a chance that my registration failed to update on the system?

I never thought I'd have to defend myself in court for not paying for free parking... 

henrik777

Ok you did the correct thing in asking for consent, but badly as you've given them no reason why they should do so 

However don't get hung up about it as writing again probably makes you look weak and they'll just try to prolong things and be difficult.

What did you register with DVLA ? Either it wasn't your registered keeper document (V5) or there has been a dely at DVLA or worse still, a mistake. Get your V5 out and check the address and doc ref date.

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 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 later this year,

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

nosferatu1001

When precisely did you find out about this?
Have you checked your V5c to see WHEN the DVLA had your current address?

Catch_0x16

Hello all, thanks for the replies.

nosferatu1001 said:

When precisely did you find out about this?
Have you checked your V5c to see WHEN the DVLA had your current address?

Found out about it on the 21st (three days ago), requested an N244 from Northampton Court the same day. Can't for the life of my find the V5c, going through a divorce and the wife put the contents of my desk in storage   . I've tried calling the DVLA and cannot get through to them. Rather frustratingly it appears I can only order a new one via telephone, and their line is perpetually 'busy'. I based the November time-frame on the date shown as the 'valid from' field on my driving license data, upon logging into the DVLA site.
I have e-mailed DVLA requesting the date in their own writing although, it would seem they're blaming COVID for long delays.

Catch_0x16

Ok, so I have my first question.

The N244 form says nothing of a draft defence. However it does allow me to attach a 'witness statement'. What is the difference? I am using the 'Private parking charge - abuse of process defence.docx' template for my defence, how should this differ from the witness statement?

KeithP

For a set aside hearing, your Witness Statement should explain why you believe you should get a set aside. E.g. because the claim was never properly served.

Again for a set aside hearing, a draft Defence is to show that if the judge was minded to grant a set aside, you would have a reasonable chance of defending the underlying claim.

Catch_0x16

Perfect, thanks. Please find my draft defence pasted below. I have authored paragraphs 16, 18 and 19. I will likely omit paragraph 15 and 16 now contradicts it in my opinion (15 talks about the PCN, 16 stats I've never seen it).

IN THE COUNTY COURT

Catch_0x16

Ooooo.. looks like it didn't paste properly, I'll try again but not in /spoiler/ tags. -> ok, looks like the template is too long, so I've just kept in the paragraphs I mentioned in my above post.

15.   In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the stylised Particulars of Claim are embarrassing and incoherent, lacking specificity re the status of the contracting parties and failing to detail any contract, conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the claim and even the exaggerated quantum has fluctuated, changing with each debt demand and/or letter of claim over the preceding months.

 

16.   The PCN and all subsequent correspondence was sent to a previous address of the keeper of the vehicle and therefore afforded them no ability to cooperate, appeal or defend themselves. The Defendant only became aware of the default judgement upon being refused credit when applying for a mortgage in July/2020. Civil Procedure Rules part 6.9 paragraph (3) clearly states that “Where a claimant has reason to believe that the address of the defendant [..] is an address at which the defendant no longer resides [..] the claimant must take reasonable steps to ascertain the address of the defendant”.

 

The Defendant moved to a new house in November 2017 and updated the DVLA at the end of that month. The alleged offence occurred mid December 2017 and it is feasible that the DVLA records did not show the correct address at this time. However, after receiving months of no response, it is plausible to say that the claimant had reason to believe that the address was incorrect, and a simple trace would have revealed to them the Defendants new address. The Claimant did not follow Civil Procedure Rules 6.9 (3) and therefore the Defendant is not liable in law.

 

The facts - lack of prominently displayed contract and no agreement on the charge

 

17.   Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, it is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct.  Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms.  Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

 

18.   The Defendant is not the only driver of this vehicle and the Particulars of Claim offer little to shed light on the alleged breach, which relates to an unremarkable date some time ago.  It is not established thus far, whether there was a single parking event, or whether the vehicle was caught by predatory ticketing and/or by using unsynchronised timings and camera evidence to suggest a contravention.  A compliant Notice to Keeper (‘NTK’) was not properly served in strict accordance with section 8 or 9 (as the case may be) of the POFA.

 

Whilst it is admitted that the Defendant was the driver in this instance, the mandatory requirements to establish 'keeper liability' have not been met and the Defendant is not liable in law.

 

19.    The Defendant believes that they carried out the parking process correctly by entering the vehicle registration into the computerized keypad within the premises on the day of the alleged offence. There have been well publicized instances of other hospital users receiving fines despite having followed the processes correctly and the Defendant therefore argues that there is a precedent set that the computerized registration system is known to error.

Coupon-mad

Looks fine but you don't actually submit a defence with your set aside, you just have it in your back pocket so you know what your defence will be.   At set aside stage you need a DRAFT ORDER (like in all the zillions of other set aside threads - please just copy one) and a signed/dated WS about the PCN and paperwork going to an old address and that you had no idea about the CCJ or even the PCN and certainly would have defended it. 

The Claimant failed to take reasonable steps to find you and you were 'there to be found' all along (prove that you updated all your records, utility bills, council tax, banking and other finance and were on the electoral roll, plus Facebook - or whatever - so a simple trace woudl have found your address).

I'd follow up that email to CEL and tell them you wil be seeking a mandatory set aside because they sent a PCN to an old address and never bothered to trace you of check your address before filing a claim.  You will be seeking your costs and will be defending the PCN claim after that, so what's in it for them if they agree to consent to the set aside is that the court fee will only be £100 (that you will ask the court to order to be paid back to you).  Otherwise it will be £255.

Tell them you will robustly defend the PCN after that and not to pretend that a condition of consenting to set aside is paying the PCN, because you are not stupid.