Vehicle Control Services challenging N244 on basis of 'Promptness of Application'

FenderJay

Hi all,

Background: 
In May 2020, my initial mortgage rate was ending so I looked to remortgage. The broker found that I had a CCJ on my credit file, dating back to June 2019 that I was unaware of. As a result I was unable to get a new mortgage offer that was lower than the increased rate with my original provider. (My mortgage repayments are 10% higher as a result). 
The parking incident occurred on November 2018 at Selly Oak Park & Ride Train Station (Birmingham). The Driver parked in a space that was not an allocated bay. The Driver usually parks in the surrounding roads if the car park is full, however on this particular day they were unable to find a space in the surrounding area despite driving for 15 minutes. 

When the Driver returned to my car they had a penalty notice on the windshield. The Driver looked at this forum and decided to wait until the written notice came in the post before taking action. I had moved house in May 2018 and hadn't updated my VC5 document with the DVLA so the letters were going to my previous address. Recognise this was a terrible oversight on my part. I don't usually miss stuff like this, but between the house purchase + coordinating builders I had somehow missed my V5C update. 

Submitted N244
When I learnt of the CCJ I began researching this forum. I followed the Surprise CCJ thread and the NEWBIES thread, and submitted a N244 on 1st June 2020. The court date is 17th August 2020, and today I received Vehicle Control Services Witness Statement and it is quite details (38 clauses in total). Vehicle Control are requesting that the case is dismissed out on the basis that I have not been prompt in my application (filed 26 months after the original incident- I filed within 30 days of learning of the CCJ) and my chances of success in defending.

Is there anything more I should prepare / research in preparation for the hearing? Witness statement added below (can post it in its entirety if important to do so)

Application

11. The Application dated 1 June 2020 is made pursuant to CPR 13.3 (a) and (b), such being

1. In any other case, the court may set aside or vary a judgement entered under Part 12 if: 

1. The Defendant has a real prospect of successfully defending the Claim; or

2. It appears to the court that there is some other good reason why -

1. The Judgement should be set aside or varied; or

2. The Defendant should be allowed to defend the Claim. 

12. In considering whether to set aside or vary Judgement entered under Part 12, the matters to which the Court must have regard include whether the person seeking to set aside the Judgement made an application to do so promptly. 

Service of Claim Form

13. The Claimant submits that the Judgement is regular as the address for service was XYZ. As per Part 6 of the Civil Procedure Rules, the Claimant has relied on the Defendant’s last known/current address provided by the DVLA. 

Promptness of the Application

14. The Claimant submits the promptness is an important matter to which the Court must have regards too. Whilst the constitution of promptness will be judged by the Court on the basis of the full facts of the case, reference is made to Hart Investments v Fidler [2006] EWHC 2857 (in the 2014 White Book notes as 13.3.3) HH Judge Coulson held that a delay of 59 days in making the application to set aside Judgement in default was ‘very much the outer limit of what could be possibly acceptable.’

15. Further, in The Big Yellow Van v Rayner [2014] the Judge refused to set aside the default judgement as 102 days between service of the order upon the Respondent and the Application to set aside ‘was a very long delay and was not prompt within the meaning of CPR 13.3’

16. The Claimant submits that as regards to the time in which Applications have been deemed to be ‘prompt’, the limit appears to be some way short of the 26 months that have elapsed in this case. Thus, 30 days has been deemed to be too long; Khan v Edgbaston Holdings [2007] EWHC 2444 9QB0, per HHJ Coulson OC. It has been suggested that 59 days is very much at the outer limit in Hart Investments v Fidler [2006]. 

17. The Claimant obtained the County Court Judgement on or around 13 June 2019. The Application was filed on 4 June 2020. The Claimant submits that 1 year is a very long delay and is certainly not prompt within the meaning of CPR 13.3. Therefore, the Court is invited to dismiss the Defendant’s Application on this limb alone.

Prospect of Success

18. It is the Claimant’s belief that the Defendant does not have a prospect of success at Trial. Therefore, the Court should consider CPR Part 1 of the Overriding Objective and dismiss the Defendant’s Application. 

19. In response to the Defendant’s Application, the Parking Charge Notice, Final Reminder, Demand for Payment, Final Demand, Letter Before Claim and Claim Form were served on the Defendant at the address provided by the DVLA as to where official Notices regarding the vehicle were to be sent. 

20. The Defendant claims that he moved address in April 2018. The Registered Keeper details were requested from the DVLA on 19 November 2018. The Defendant is put to strict proof that he had updated his address with the DVLA before the DVLA request was made. 

21. Notwithstanding the above, the post was never returned as undelivered and there was no irrevocable presumption of good service. Thus, the Claimant has no reason to believe that this was never received by the Defendant. 

22. The Claimant has therefore issued proceedings in accordance with Part 6 of the Civil Procedures Rules and used the service address as the Defendant’s last known / current address. 

23. The contravention photographs enclosed in exhibit AA2 show that on 13 Nov 2018, the Defendant’s vehicle was observed parked beyond the bay markings in Centrol Selly Oak. This rendered the Defendant in breach of the Terms and Conditions of the Car Park and liable for the Parking Charge advertised on the signage. 

24. The Claimant submits that any area other than a marked bay was a restricted / prohibited area for the Defendant to park the vehicle in. 

25. In the absence of a transfer of liability, there is a reasonable assumption that the Defendant was the Driver of his own vehicle at the time of the contravention. However, if the Court is not satisfied that the Defendant was the Driver, then the Claimant would rely upon Schedule 4 of the Protection of Freedoms Act 2012  and contend that they can hold the Defendant liable for the Parking Charge under the said enactment. The relevant clause is;

“4 (1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle… 

...5 1 (b)...if they are unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver…

26. In the Defendant’s failure to act upon the Parking Charge Notice address to him by transferring liability or putting forward his position, the Claimant is able to pursue the Registered Keeper of the vehicle, to which is the Defendant, as confirmed by the DVLA (see Registered Keeper details obtained from the DVLA enclosed in exhibit AA2)

Fruitcake

It appears that the scammers don't know who was driving. If the NTK was non PoFA compliant, you need to weigh up whether revealing the driver's identity is in your best interest. If it is not, at least not at this stage, you should edit your post to remove information about who parked. Only ever refer to The Driver and The Keeper.

Mitigation reasons for the car being parked is irrelevant. I suggest you delete all the personal information.

Parking scammers read this forum and will easily be able to identify the driver from information given in your opening post.

Have you checked with the DVLA when they received the change of address details for the keeper? Did you have mail forwarding set up when you moved?

Don't worry about the scammers comments concerning the delay. You made the set aside application as soon as you discovered the CCJ. It would have been impossible to do this any earlier. 
Likewise with regards to the comments about post never being returned. If it never arrived, it would have been impossible, or a new occupier may have just binned post addressed to someone else.
Ask the mortgage broker to put something in writing that it was they who discovered the CCJ, and when this occurred.

Did you complain to the landowner? Is it covered by railway byelaws? 

Have you complained yet to your MP about this unregulated scam?

D_P_Dance

Read about keeper liability under POFA on land covered by railway bye-laws.

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

Wow
No, they cannot get it chcucked out on promptness. Specify the exact date you found out about the CCJ. You have a duty to act promptly once you discover the CCJ under CPR13.3 and you can of course provethat because your brpoker will be able to confirm that. 
Theyre talking crap. 

FenderJay

D_P_Dance said:

Read about keeper liability under POFA on land covered by railway bye-laws. 

This is good advice. Thanks. I've spent the last hour reading up on this. In the Witness Statement from VCS they have included the contract from West Midlands Combined Authority (WMCA) and an ordinance survey map stating that they are appointed to operate this car park.

If a car park is attached to the station do the byelaws automatically come into play? I've read the Railway Byelaws legislation and it gives the impression that this is the case. This would supercede whatever the local authority is doing (ie. appointing VCS to hand out tickets and enforce these car parks) I would think? 

The West Midlands Network (Local Government Transport Department) website for the Selly Oak car park lists National Railway as the contact for the car park. There is no mention of Railway Byelaws on the T&Cs on the website or on the signage at the car park. 

Fruitcake

If the land is a railway asset then byelaws will apply. In that case the landowner would normally be either Network Rail (NR) or the Train Operating Company (TOC) or similar. If byelaws apply, the site is not relevant land so the PoFA does not apply, but neither does keeper liability. A driver can, and an owner may be liable, but never a keeper.
Just because a car park is next to a railway/railway station, does not mean it is a railway asset.
Conversely, just because byelaws are not mentioned does not mean byelaws do not apply.
Normally only the landowner (NR or TOC or similar) can prosecute a breach of byelaws, only in a magistrate's court, and only within six months of the alleged breach.

If the land is covered by a traffic authority such as a council or subject to a traffic order, then it is not relevant land either.

Your first job is to confirm the identity of the landowner.

Please show us the scammer's alleged contract with or flowing from the landowner. If the contract  is with an agent of the landowner and not with the landowner, then there must be a contract between the landowner and agent allowing the agent to employ the scammers.

Castle

A request for clarification of the byelaws at the station:-
https://www.whatdotheyknow.com/request/selly_oak_station_byelaws

henrik777

So we have 8 months from event until default judgment, so we'll call it 7 until claim filed.

Now they say it's an application pursuant to CPR 13.3 which it may well be, i'd have tried cpr 13.2 first and 13.3 secondly (in the same application obviously) since it's essentially an argument that you weren't served and if you weren't served you were not in default of filing an acknowledgement of service etc.

Service of Claim Form

13. The Claimant submits that the Judgement is regular as the address for service was XYZ. As per Part 6 of the Civil Procedure Rules, the Claimant has relied on the Defendant’s last known/current address provided by the DVLA. 

No surprises here. So did the have any reason to believe you'd moved other than 7 months with no reply ? Did you have mail forwarding in place ? have you asked the new occupiers if anything arrived and what they did with it ?



The argument on promptness

Give the court a timeline.

On xx i found out blah blah

on xxx i asked

on xxxx i looked at blah blah

On xxxxx i asked for consent blah blah

On xxxxxxx i applied  i was left with  no choice blah blah blah


The claimant is using fundamentally unsound logic in their consideration of promptness. In effect, using the date of judgment rather than the date of discovery or knowledge of the defendant, could see a claimant rewarded with a judgemnt that is totally unknown by a defendant and by the time the defendant has discovered what has happened they would have no chance to do anything about judgment in any circumstance. This would obviously be open to abuse by some who could get totally unmeritorious claims through by stealth. The claimants claims in this regard lack any merit.




As for a real prospect, well the fake fees should be more than enough on their own.

FenderJay

@Castle Good find on Info Request. The council state that the byelaws apply to 1 of the 2 car park sections at this train station. The Driver isn't sure which section of the car park they parked in. From the photos supplied by VCS it is not clear which section the car was parked.

@Fruitcake Copy of the 'contract' - pages 2 & 3 go on to list 60 sites. Date section and Name Section have not been completed you will notice by West Midlands Combined Authority. 

@henrik777 There's no record of the post arriving at the previous address. It was a rental and I did speak with the new occupants and they couldn't remember receiving anything. I do believe them - when I first moved house I had some garden furniture arrive at the previous address (the company mixed up the delivery and billing address while my bank records were updating). The new occupants went through the landlady, got my number and phoned me to tell me. I'm sure they would've sent a text or contacted me to tell me I was getting mail. I requested proof of postage & delivery from VCS. They sent me PDF copies of the PCNs but did not provide any information on when these were posted or proof of delivery. They stated, "We have already provided evidence of postage and are not required to provide evidence of delivery."

In regard to having any other reason to believe I had moved - The V5C was the only document that was not up to date - everything else on my credit file and the electoral register where correct. If VC5 had used any 2nd source to look up my address they would've seen this.

FenderJay

This is the map of where the council is stating the byelaws apply (as of 2017) - There are 2 sections to the car park (I've annotated on the map) - what is strange is that there's a corner in Car Park 1 that is not within the byelaws yet there are car parking spaces in that area. 

The 'contract' given to VCS relates to Car Park 2 only.

The Driver isn't sure where he parked when he received the ticket. VCS photographs are of the car and don't clearly show the location of the vehicle.

Redx

It is their responsibility to prove that the vehicle was on their private land and not bylaws land , so it doesn't matter where the driver parked , the onus is on the claimant to prove their claim , the defendant can cast doubt into the case , such that on the balance of probability their case is unclear and fails