Surprise CCJ - Flora St Sheffield Restricted Area - VCS / Elms Legal

Supraman15

WITNESS STATEMENT

I am XXXXX and I am the defendant in this matter. This is my supporting statement to my application dated 25th August 2020 requesting to:

a. Set aside the default judgment dated 7th August 2020 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee, should the help with fees claim not be awarded (HWF-XXXX)

DEFAULT JUDGMENT

1.1. I was the registered keeper of the vehicle at the time of the alleged offence.

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 7th August 2020. I am aware that the Claimant is Vehicle Control Services, and that the assumed claim is in respect of unpaid Parking Charge Notices from the 10th of December 2016. I contest this charge for the reasons outlined in the attached draft defence.

1.3. The claim form was not served at my current address and I thus was not aware of the Default Judgement until 20th August 2020 following a notification of an automated credit report update; as found in Schedule (X)

The address on the claim is XXXXX. I moved to my current address at XXXXX on the 23rd March 2018. In support of this I can provide a copy of an electoral roll confirmation email, a V5c of a vehicle purchased in March 2018 registered to my current address, my driver’s licence, and a bank statement; Schedule (X)

1.4. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.4.1 I discovered a CCJ was lodged onto my credit file on the 20th August 2020.

1.4.2 On the 20th and 21st August I contacted the County Court Business Centre to obtain relevant information relating to this default judgement; Schedule (X).

1.4.3 On the 21st August I sent a Subject Access Request to the Claimant in an attempt to ascertain what kind of attempts of correspondence have been sent to the Defendant relating to the claim.

1.4.4 On 25th August 2020 I have wilfully submitted my case in order to set-aside this judgement and fairly present my case.

1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

1.6. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence despite having over 2 years to establish an address, and having received no return correspondence from me whatsoever following their assumed multiple attempts to reach me at an old address . This has led to the claim being incorrectly served to an old address and an irregular judgement.

1.7. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses."

The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.” Furtherance to points raised in 1.3 above.

1.8. Considering the above I was unable to defend this claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

Supraman15

DRAFT DEFENCE DISMISSING THE CLAIM

 

 2.1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2.2 The Defendant was the registered keeper of the Vehicle XXXXX on the date of the alleged contravention – XXX/12/2016

2.3. The Particulars of Claim refer to ‘A Breach of contract for breaching the terms and conditions set on private land. [DATE].  However, they do not state the basis of any purported liability for these charges, in that they do not state whether the Defendant is being pursued under the POFA 2012 as the registered keeper (they use template wording 'keeper and/or driver' yet the law and liability chain and defence needed for those polar opposite positions, would be entirely different).  The Particulars also fail to explain the locus standi of the Claimant, who are not the landowner yet also fail to state why they, as a mere agent (if indeed they are) of a landowner principal, are bringing this claim.  Further, this is a money-claim and the Particulars state no sum of money, nor even break the total claim down, nor even state the sum of the alleged parking charge.

2.4 On the date of the alleged contravention the defendant’s vehicle was parked in a large, open area of the car park, along with many other vehicles, assumed to be used as overflow parking. The vehicle was not blocking access to any other vehicles, pedestrian walkways, or access points, nor could it be reasonably assumed that it was causing any inconvenience of any kind. This area is not marked, unlike other areas nearby which are marked clearly with the cross hatch, so the onus is on the Claimant to prove that the area is restricted.

2.5. The Claimant’s signage as at 22nd August 2020 (assumed to be present at the date of alleged contravention until full details and photographs are provided by the Claimant to the Defendant as requested under a Subject Access Request) states “No parking in restricted areas, double yellow lines, hatched areas, roadways, pedestrian walkways, entrances or exits.” No other description is offered as to what constitutes a ‘restricted area’. Accordingly, the Defendant denies having breached any contractual terms whether expressed, implied, or by conduct.

2.6. Furthermore, as at 22nd August 2020 the signage was in accordance with that found to be ‘completely inadequate’ by a competent court due to the penalty charge (£100) being in the smallest font on a sign containing hundreds of words. Reference: One Parking Solution v Ms W - claim number F0HM9E9Z (Lewes County Court, 5/2/2020).

2.7. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances. 

2.8. The Claimant, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which per signage at 22nd August 2020 is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even if Judgment for Claimant is awarded.

2.8.1 Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £160 per PCN plus interest, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

"It is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover" - District Judge Hickinbottom at Bradford County Court - Claimant Ref: VC04587373

2.8.2 The claimant has entered this claim whilst being fully aware that continuing to enter claims for the sum of £160 would be treated as an abuse of process by the court, as noted on the Judgement for Claim F0QZ79EY - DJ Jones-Evans - Caernarfon County Court:

"Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates appearing on behalf of the Claimants in many cases of this nature before this court that their claim for £60 is enforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as claim for £160 and therefore a penalty and enforceable in law and upon it being further recorded that this claim was issued on the 30th September 2019 and well after the 4th September 2019 when District Judge Jones-Evans struck out case number F2QZ4W28 and the Claimants knew or ought to have known at that stage that continuing to claim the sum of £160 was to be treated as an abuse of process by the court it is hereby ordered and declared:

 

1. This is a claim for the global sum of £160.

2. It is a penalty and unenforceable in law.

3. It is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis.

4. This standard order was issued by this court firstly in September 2019.

5. This claim was issued by the Claimant on the 30th October 2019 when the Claimant knew that this was an issue before this court and they continued to pursue the additional £60

6. The Claim is struck out and declared to be wholly without merit and an abuse of process."

 

 2.9. I further submit that the parking charge notice is without merit due to substantial issues in law. This is for the following reasons:

a. Lack of Standing by Claimant: The claimant is not 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 claim for any damages or trespass.

b. 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 driver. Therefore, there is no consideration from the driver to XXXX.

2.10. 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.

2.11. To make informed decisions and statements in my defence as former keeper of the vehicle I will require copies of all paperwork and pictures of all signs at the time the PCNs were issued from the claimant. As detailed in the subject access request E-mailed to litigation@vehiclecontrol.co.uk on the 21st August 2020

 

2.12. For all or any of the reasons stated above, the Court is invited to

a) Dismiss the Claim in its entirety

b) Award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.

c) Impose an extended civil restraint order against the Claimant and their legal aid to prevent them from issuing and pursuing further 'Parking Charge Notices' which they know to be unlawful

Statement of Truth:
I believe that the facts stated in this defence 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.

 

Coupon-mad

Supraman15 said:

Thanks again Coupon-Mad
Forgive me for being Naive in these matters, but I assume that the claim amount was separate to this body of text in some sort of table at the end of the claim form. Eg:

Amount claimed £160
Court fee £25
Legal Representative's costs £50
Total £235

Are you saying that these figures also need to be written in the main body of text in order to form a legitimate claim?

Yes, look at CPR 16 about statements of case, so you understand what I mean. 

The POC must set out everything I said and certainly break down the parking charge separately, regardless of the tabular presentation of the claim on the right (which still doesn't).

henrik777

wilfully

adverb

 UK disapproving (US usually willfully)


I don't know who started that nonsense but i wish people wouldn't copy it.



"due diligence"

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06

Please point to this.
(I appreciate you've probably taken this from other posters but it's not correct)


(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph

That's what you need.

nosferatu1001

The amount should be written as 
pcn £100
debt collection or whatever other !!!!!! they've come up with: £60

obviously the fixed fees such as filing fee aren't included there. That's why they have their own box. 

Supraman15

Thank you Coupon-mad, henrik777 and nosferatu1001
I will look up CPR 16
I have amended this point:

1.4.4 On 26th August 2020 I have submitted my case to the courts in order to set-aside this judgement and fairly present my case.

and:

1.6. The claimant did not take reasonable steps to ascertain the address of my current residence despite having over 2 years to establish an address, and having received no return correspondence from me whatsoever following their assumed multiple attempts to reach me at an old address . This has led to the claim being incorrectly served to an old address and an irregular judgement. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3)

“Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).”

Supraman15

Just an update to this, my hearing for the set aside is on the 4th Feb. via "BT meet me"
The letter says that the claimant must provide  an E_bundle of documents no less than 3 working days before the hearing. I'm surprised it doesn't say anything about the defendant? (me)

I'll have a look through any newer threads and guidance posted in the past few months to see if anyone mentions this

Cheers    

Umkomaas

The claimant is responsible for putting everything together, including your Defence, WS and evidence in one e-bundle for the Judge. Nothing for you to do, unless you've not already submitted something into the system. 

Le_Kirk

Supraman15 said:

Just an update to this, my hearing for the set aside is on the 4th Feb. via "BT meet me"
The letter says that the claimant must provide  an E_bundle of documents no less than 3 working days before the hearing. I'm surprised it doesn't say anything about the defendant? (me)
I'll have a look through any newer threads and guidance posted in the past few months to see if anyone mentions this

Does it say that you have to liaise with the claimant to decide what must be sent?  Just be careful that they send EVERYTHING.  We have read reports on the forum that sometimes the claimants "accidentally" forget to send some items to the court.  If you had previously received a notice from the court about the date, it might have said they you should submit your own bundle to the court and the claimant 14 days before the hearing date and this new letter is for a non F2F hearing, so the court might actually have it.  Just make sure you have proof of sending.

Supraman15

Sorry I should have said, this letter is dated 1st Oct 2020, I just haven't been on the forum in a while. (I haven't had any recent letters)

I sent the WS and Draft Defence shown earlier in this thread back in August along with the N244 form.

The letter doesn't say anything about liaising. I'm assuming that the courts must be using my phone number provided on the N244 form as the letter doesn't ask me to provide a tel. number for the hearing.

1. The Claimant shall by 4pm 3 Days before the Hearing Email to the Court a (direct dial) Telephone number for Each Person wishing to be present on the Telephone Hearing. The Telephone Numbers will be used by the Court to set up the Telephone Hearing using BT Meet Me (or such other Telephone Hearing method as may be Utilised by the Court in Future).

2. No less than 3 working days before the Hearing is to take place the Claimant (or if agreed another Party, shall send an email to the Court at manchestercivil@justice.gov.uk Copied to the Other party:
a) Containing in the subject line the word "E-BUNDLE" and Name of the Case and the Date and Time of the Hearing

b) Setting out in its body (not as an attachment) a succinct reading list of Documents for the Judge who will conduct the Hearing together with an agreed Estimate of the Time it will take the Judge to read the Documents. The parties should endeavour to Agree the list and the list should be specific and if necessary refer to specific sections of a Document, with page references to the Electronic Bundle.
c) Containing a link to the Electronic bundle at an online data room. If the data vault is password protected the Password must be set in the body of the Email. The electronic bundle:
(i) Should be agreed
(ii) Must only contain the documents referred to in the reading list, which should only be those documents which are necessary and will be referred to at the hearing
(iii) Should include skeleton arguments if ordered or appropriate
(iv) Wherever appropriate, should include extracts of documents rather than the entirety of documents 
(v) be prepared in single pdf format
(vi) must be indexed and paginated in ascending order, to include index pages and necessary authorities
(vii) Must always have a default display view for all pages of 100%
(viii) Must allow text on all pages to be selectable and to facilitate electronic annotation
(ix) Must have a resolution reduced to about 200 to 300 dpi to prevent delays whilst scrolling from one page to another 
(x) Shall not exceed 300 pages

d) The Parties should prepare the focussed reading list and electronic bundle on the basis that the Judge dealing with the matter may have no previous knowledge of the case and may NOT have access to the court file.