CEL set aside hearing... Help please!

s1morgan

Hi, I am in need of help.

I came across this website and have read through many threads but would like to ask for direct help. I have been given a hearing to have a CCJ set aside from CEL. I apologise firstly for what seems to be a very simply explained N244, I am not knowledgable on the correct terms to use, that was until I came across these forums. However it has got me as far a getting a hearing for the 12th August.

N244 states that...

'Dear Judge,

I am writing to discuss with you a recent discovery on my credit file of a CCJ.

Earlier this month i created a profile on Experian so that I could check on my current credit score. After doing so, I was shocked and concerned to realise that my credit score was substantially lower than expected mainly due to an alert that I have an active ‘County Court Judgment' against my name. Information provided shows that this CCJ has been attached to my credit file since 21st May 2018 however this has never been brought to my awareness or been flagged on any other credit checks I have authorised.

After further investigation I have been able to track the reference number provided by Experian to Northampton County Court who informed me the charge has been given against an unpaid parking fine which after being given more information was actually a mistake on the part of the parking enforcement  agency ‘Civil Enforcement Ltd’. 

Having been provided with the time, date and location of the original parking fine issued form the above mentioned company I am able to identify where this has originated from. On the 19th June 2017 I attended the Gym close to my workplace before my shift started. The gym, at the time called ‘Easy gym' now currently branded as ‘The Gym Group’ is located on Unit 1A, Findlay Rd, High Street, Kingsheath, Birmingham, B14 7SN.  When attending the gym I am required to enter my Registration Plate details at the desk which in turn allows customers 2 hours of free parking as part of the terms of my membership. It would seem that despite this and the fact that I have photographic evidence proving i was indeed using the gym at the time the ticket was issued, I have still been wrongfully fined which has then escalated without my knowledge or control due to a lack of process followed by the enforcement agency.

Despite the wrongful issuing of the fine I still feel this could have been resolved amicably had I been notified, however, I must highlight that the company has failed to take the necessary and lawful steps expected of them at all stages. Not only was I not made aware of the original fine at point of issue, but I also did not receive any correspondence relating to the CCJ as a First’ or ‘Final’ notice via email or post. A possible reason for this is due to me having moved house in the midst of these charges being issued to me.  However, I moved house in October 2017 from ’XXX Avenue, XXX, Birmingham, BXX XXX’ to ‘XXX Close, XXX, Birmingham, BXX XXX’ in which time I ensured my address was changed with DVLA and my V5, this had been confirmed as the original address Northampton County Court held when I spoke to them was indeed my old address.

It is extremely disappointing to then now find myself in this position where through no fault of my own I have now and will continue to be negatively impacted and stand to face difficulties in my future when trying to buy a home or seek any other credit. I am a Fire-fighter by profession therefore I consider myself to be trustworthy and honest by nature, had I been made aware of this parking ticket initially or even at an earlier date I would have sought a resolution rather than allow things to get to this point.

As mentioned above I am able to provide the photographic evidence stated as well as any other reasonable proof required in order to have this CCJ removed.

I look forward to your response and suggestions for an amicable resolution.

Yours sincerely, 

Stephanie XXX.'

....3 weeks later I received a letter granting me a hearing on the 12th August. Unexpectedly I then received an email form CEL.

The email states....

'WITHOUT PREJUDICE SAVE TO COSTS'

They noted that several letters was sent to my old address before I moved in October 2017 (which I did not receive) and that there is no record of my vehicle registration being expert from terms and conditions of the parking (again NOT true, as stated in my N244)

They have stated that even if the application is granted they will continue with the claim against me. In the next sentence then they proceed to say..

'However bearing in mind this process can take time and will incur unnecessary cost for both parties, we will consent to setting aside the judgment (to support your record) and discontinue the claim against you if you agree to pay the original fine £60 plus the admin costs we have incurred trying to recover payment of the PCN, limited to £65 (making a total of £125). Each part will hear its own costs of the application. Upon receiving payment, we will provide you with a draft order to file with the court in support of your application.'

I resounded to the email, my email is as follows.

'Dear Legal team on behalf of Civil Enforcements,

Without prejudice response to ‘without prejudice offer’ in response to my application to set aside judgment for claim E0GM00R2.

I refer to the above claim. Thankyou, I am writing to acknowledge your offer but before making a decision on this I want to ensure I have all the information at hand in regards to the claim against me. I’d like to state that liability is denied in full.

You state that my vehicle registration was not exempt from the terms and conditions of parking, however this is incorrect. I entered my vehicle registration details into the terminal inside the Gym (Easy Gym), located at ‘Unit 1A, Findlay Rd, High Street, Kingsheath, Birmingham, B14 7SN’. Which states I am intact exempt for the parking terms and conditions.

You have stated that ‘several’ letters was sent to my previous address, yet I didn’t receive a single PCN, nor did I receive any first or final warning in regards to the PCN and nor did I receive a letter in regards to the claim against me. 

Having not received the above has denied me an opportunity to defend myself at a much earlier stage. In regards to this I would like to request ‘proof of postage’ and ‘proof of delivery’ of every letter/PCN/warning that was sent to me. 

Can these could be supplied to me by the 2nd August 2020.

I look forward to hearing from you

Yours faithfully,

Stephanie XXX'



... I am yet to hear back of them?

What is everyone's thoughts? do I have a chance of winning this if I continue to the hearing and reject the consent offer? Initially I thought let me just pay the £125 but then remembered I have already paid £255... that's £380 out of my pocket I'm paying for a fine I should have never had! I can not justify it, however I know I am someone who will become anxious closer to the hearing date. I struggle to articulate myself well and feel I may crumble, I have never been to court or had to fight anything like this. 

Should I accept the consent offer? 

Since the initial PCN that Gym has changed since then, it is no longer the same company and I have also been made aware that the company who managed the land there for parking has also changed TWICE.

Le_Kirk

Did you send anything else with the letter to the judge, such as a witness statement and a six-point draft order?  Check out the NEWBIE sticky for advice about set-asides and the six-point draft order, which will tell the judge what you want - especially that you want the £255 paid to you by CEL.  Read some posts by @henrik777 as he is a knowledgeable person re set-asides. Possibly you could submit a draft order to the court - might not be too late.  Do you have a defence written for the original issue as the judge might ask for "your prospects of defending the original claim".
Based on what you say and what you have paid, I would suggest you continue with the original hearing for the set-aside.  Other opinions will along later.  Letters like you say you have received that make offers suggest that CEL are worried you have a strong case.

s1morgan

When completing the N244 form the statement I gave above was my witness statement. A six point draft order? I have not heard of but will look into, how would I get this to the judge though before the hearing? I should have mentioned prior that the hearing will take place over the phone due to COVID-19.

My 'Prospects if defending the claim' would be my statement of being exempt from the terms and conditions of the parking due to entering my registrations details at the Gym. If I was to provide a letter that agrees this from the new gym that is now located there, would that be enough? along with the photo evidence I have that has the date and time stamped on it.

Le_Kirk

A six-point draft order can be found by searching the forum but it will look something like this: -

IT IS ORDERED that:
1. The default judgment dated DD/MM/YYYY be set aside.
2. Costs to be reserved.
3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4 pm on [date] paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.
4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on [date].
5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 plus the Defendant's costs for attending the hearing.
6. That all enforcement be put on hold pending the outcome of the application.

Put in the date of the judgment but leave the other dates blank for the judge to complete.  To get it to the judge before the hearing use the e-mail address that you used to send the witness statement (and anything else) that you have already sent.

s1morgan

Thankyou,
How does this sound?

IT IS ORDERED that:
1. The default judgment dated 21/05/2018 be set aside.
2. Costs to be reserved.
3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4 pm on [date] paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.
4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on [date].
5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 plus the Defendant's costs for attending the hearing.
6. That all enforcement be put on hold pending the outcome of the application

My draft statement is as follows: - 

I am xxxxxxxxxx and I am the Defendant in this matter.
This my supporting Statement in support of my application dated 07/07/2020 to:
· Set aside the Default Judgement dated May 2018 as it was not properly served at my current address;
· Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee; 
· Order for the original claim to be dismissed.

1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in May 2018. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until June 2020 when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (xxxxx). However, I moved to a new address in October 2017. 

1.2. I have also 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. I contacted Registry Trust who directed me to Northampton County Court to find out details of the Default Judgement. The court papers contained the Claimants name,Address and time to which I was then able to retrace myself too, mainly via my camera roll on my mobile phone to identify where I was on that specific day.


1.4 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

1.5. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.7. Considering the above I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

2. Order dismissing the Claim

2.1. I further 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.  I dispute the claim in its entirety as I was exempt from the terms and conditions of the parking when I reigistered my vehicle details on a terminal located inside the Gym located on Unit 1A, Findlay Rd, B14 7SN'.

2.3. 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.

2.4. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
2.4.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car park in question, and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.
2.4.2. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.
2.4.3. 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.
2.4.4. No contract with the claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to Civil Enforcement Ltd.

2.5. 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.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.

KeithP

The big unanswered question is... why did the Claimant send the claim to the wrong address?

It is usual for a parking company to ask the DVLA for the vehicle's keeper details.

Are the Registered Keeper's details correct on the vehicle's Registration Certificate?

Were the Registered Keeper's details correct on the vehicle's Registration Certificate at the time of the alleged parking event?

Please don't guess these things check the Registration Certificate.


The Statement of Truth is old and outdated. A newer version can be found in the second post of the NEWBIES thread, or by googling statement of truth april 2020.

s1morgan

I can confirm that both my Driving license and V5c was updated on the 11th November, I have email confirmation of this as I completed the change of address form online.

s1morgan

The parking offence allegedly took place on the 19th June 2017. I did not receive any PCN between then and October 2017 (when I moved) which questions if they had ever sent anything at all.

Unfortunately I am not well articulated or knowledgeable in this field so I am having to guess, I can only give my own truth.

Umkomaas

s1morgan said:

I can confirm that both my Driving license and V5c was updated on the 11th November, I have email confirmation of this as I completed the change of address form online.

The only address the PPC will use until told to the contrary by the motorist is that supplied to them by the DVLA at the time of the parking incident. The PPC has only one go to get the address, there are no updates provided to them by the DVLA after that first notification. 

Redx

Emailing a SAR to the claimant PPC to their DPO with proof of address such as your V5C will yield all the paperwork including original NTK and any other correspondence , photos and data pertaining to you , such as chase up letters etc

Once you have the paperwork , you can check dates , addresses etc

There should be no guessing , you should obtain your data from the DPO at CEL and check it

s1morgan

Im sorry, I'm a little confused to where the 'guessing' has come from? I know that they was sent the claim to my previous address as when I tracked the reference number to Northampton Court, they indeed provided me with my old address and I therefore updated it to my current address.