CCJ looking for consent or set aside

Raf123411

nosferatu1001 said:

Dont sit and waiut until april
Show us that you can CLEARLY demonst rate CPR13.2 grounds. If you cant do it for us, why do you expect a judge will?

Thank you for this motivation. I 100% agreed  have to be prepared for defence. Please see below my draft defence for Set aside hearing. Please contrbiute and feedback, so i can get it right for April.

Set aside defence:

Timeline:

13.12.2018 Alleged parking event

21.12.2018 signed mortgage deed and moving to new address

27.12.2018 first letter NTK dated by Excel ( never received)

I was able to access old address until 28th of January, that’s the reason I never set up redirect of my post to my new address but there was no letters delivered from Excel

I amended the address on my V5C on the beginning of January receiving a document with updated address on 07/02/2020

Excel follow up with letters which never been delivered/received which they stating in one of their letters: A Notice to Keeper was issued to you, the Registered Keeper of the vehicle, by post on and our records indicate that we have had no response to that Notice.

I have not ever received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.

I suggest the claimant did not make reasonable enquiries as to my current address before pursuing the court order especially considering there was a significant time between the events (alleged parking event 13/12/2018 and court hearing 3rd July 2019) . Furthermore, considering they received no response from me to their correspondence I believe the Claimant had reasonable cause to question whether they were using an accurate address

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. Furthermore, as per defence submitted to court and Claimant on the 5th January 2021, I would like to ask for case to be set aside and the Claimant to pay the Defendant’s costs of this application to the sum of £255.

Addition reason to set case aside is that I act promptly once find out about the existing of the CCJ.

10.11.2020 I find out about existing of CCJ when checking credit report

11.11.2020 I Contacted the Northampton County Court Business Centre to find out the details of the claimant.

11/11/2020 I made a written request to the Claimant inviting them to consent to set aside the judgment. . I follow my request in writing on 16/11/2020 , 17/11/2020 and 18/11/2020 stating the urgency of the case being aware of duty under CPR 1 dealing with a case justly and at proportionate cost, saving expenses. I follow up with 2 phone calls on 16/11/2020 and 18/11/2020 asking for urgent contact regarding the case

20/11/2020 After not respond from Excel Parking I send N244 application to court

30/12/2020 Excel Parking solicitors back to me agree to set the case aside when paying full amount of existing claim

henrik777

My immediate thought, Have you checked the address they sent anything/everything too and if it's your old address, why didn't it get there ?

If the court has answers to that it'll, at the very least, make your credibility stronger.

Raf123411

henrik777 said:

My immediate thought, Have you checked the address they sent anything/everything too and if it's your old address, why didn't it get there ?

If the court has answers to that it'll, at the very least, make your credibility stronger.

Hi sorry for delay on getting back on this. I checked my previous address, unfortunately I wasn’t able to get hold of recent tenants there and landlord disposed all old mails as it was almost 2 years ago. So unfortunately I wasn’t able to establish anything in this matter.

nosferatu1001

If the court has answers, was another part to the task

Raf123411

I know what you mean, just wondering if court have all confirmation of all documents they sent? 

And what impact this could have on decision about setting aside CCJ.

Raf123411

Hi guys,

I had email from Excel yesterday with their defence prior to hearing in April.

Seems like copy and paste what they usually do, but they trying to base on the time from the alleged parking contraversion took place was to long to take this as a promt application.

Main things I found in their defence:

- they base on current sigange not from the one when alleged contraversion took place, they also add new signed to their defence

-they assumed all post was delivered even there was no contact regarding the payment or appeal

- They trying to hold keeper reliable even when they not POFA compliant

Not realy sure if there is any points i can use from their defence to help my case.

would be great if anyone will have a time to scan through their defence in case there is anything you can spot.

Introduction

1.       I am employed by Excel Parking Services Limited as a Paralegal and have been employed since January 2019. The facts and matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where the facts are within my knowledge, they are true. Where they are not within my own knowledge, they are true to the best of my information and belief.

2.       I make this witness statement in support of Excel Parking Services Limited’s Claims following the Defendant’s Application to set aside Judgment.

3.       Within this statement I make reference to various documents. These are now produced to me in a paginated bundle marked AA1-2. The evidence tendered in the exhibits is taken from the Claimant’s Company records.

 Background

4.       The Claimant issued debt proceedings against the Defendant on or around 7'h May 2019 in the County Court Business Centre under Claim Number XXXXX. The address for service was XXXXXX an address confirmed by the DVLA (see Registered Keeper details obtained from the DVLA enclosed in exhibit AA2) as the most recent address to where official Notices regarding the vehicle are to be sent to.

 5.       The Claimant issued a Parking Charge Notice [“PCN”] to a vehicle bearing the Vehicle Registration Number [“VRN”] XXXX, to which the Defendant was the Registered Keeper [“RK”] at the time as confirmed by the DVLA, for breaching the Terms and Conditions of the Car Park known as xxxxxx.

 6.       The Claimant submits that they had the authority to implement a parking scheme in the Car Park on the date of the contravention. There has been no notice of termination and the Claimant remains contracted to enforce parking to date. A copy of the Contract Witness Statement can be identified in exhibit AA1.

 7.       On the 13'h December 2018, the Defendant’s vehicle was identified in breach of the Terms and Conditions at County House Car Park. The breach was identified as being 101) Parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site’, reference XXXX, was issued against the vehicle advising that a balance of £100.00 was outstanding with a discount of £60.00 offered for prompt payment.

 8.       The Defendant had the opportunity to either pay or Appeal the Parking Charge or transfer liability. However, the Defendant chose neither option

9.       As no payment was forthcoming, the Claimant then sought to seek recourse for payment of the outstanding Parking Charge by the commencement of legal proceeding

10.   The Claimant then issued a Claim against the Defendant to which neither an acknowledgment or Defence to the Claim was filed. Inevitably, the Claimant was awarded a Judgment by default on or around 3'd June 2019. The Defendant was invited to pay the Judgment amount; however, this was not paid.

 Application

11.   The Application 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 judgment entered under Part 12 if;

(a)    The Defendant has a real prospect of successfully defending the Claim; or

(b)   It appears to the court that there is some other good reason why —

(i)        The Judgment should be set aside or varied; or

(ii)      The Defendant should be allowed to defend the Claim.

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

 13.   The Claimant has not been provided with a copy of the Defendant’s Application. and as such, are unable to address any allegations contained therein. The Claimant

has however been provided with a copy of the Defendant’s Defence dated 5th

January 2021. The Claimant will address the points contained within the Defence.

14.   The Claimant has today emailed the Court requesting a copy of the Defendant’s Application and still await a response. Due to time constraints, the Claimant has had to proceed to preparing their witness statement and evidence in the absence of the Application.

Service of Claim Form

15.   The Claimant submits that the Judgment is regular as the address for service was XXXXX. 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

16.   The Claimant submits that 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 all the facts of the case, reference is made to Start Investments v Fidler [2006] EWflC 2857 (in the 2014 White Book notes at 13.3.3) HH Judge Coulson held that a delay of 59 days in making the application to set aside Judgment in default was ‘very much the outer limit of what could possibly be acceptable’

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

18.   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 26 months that

have elapsed in this case. Thus, 30 days has been deemed to be too long; Khan v Edgbaston Holdings [2007] EWflC 2444 9QB0, per HHJ Coulson OC. It has been suggested that 59 days is very much at the outer limit in Start Investments v Fidler [2006].

19.   The Claimant obtained the County Court Judgment on or around 3’d June 2019. The Application was submitted on the 20'h November 2020. The Claimant submits that 1 year and 5 months 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

20.   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.

21.   The Claimant notes from the Defendant’s Defence that the Defendant has failed to put forward a reason as to why he failed to file a Defence in a timely manner. Thus, the Judgment should stand.

22.   The Parking Charge Notice, Final Reminder, Demand for Payment, Final Demand, Letter Before Claim and Claim Form were served at the address provided by the DVLA which the Defendant had registered with the DVLA as to where official Notices regarding the vehicle were to be sent (see Registered Keeper details obtained from the DVLA enclosed in exhibit AA2). Copies of the available correspondence are enclosed in exhibit AA2 for the Court’s attention.

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

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

25.   On the 13th December 2018, the Defendant’s vehicle was identified to have been parked/remained in County House Car Park in Nottingham without payment of a parking tariff for the said vehicle registration mark.

26.   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 he was the Driver, then the Claimant would pursue the Defendant as the Liable Party in the Defendant’s failure to discharge himself from liability of the Parking Charge.

27.   Alternatively, the Claimant could rely on the Law of Agency and contend that the Defendant had allowed permission for another individual to drive the vehicle registered in his name. Therefore, the Claimant submits that where someone else, besides the Defendant, is driving the vehicle, they are acting as an agent of the Defendant. This means the Driver has actual and/or implied authority to enter into a Contract on behalf of the Defendant.

28.   The Law of Agency deals with contractual relationships that involve a person, called the Agent, that is authorised to act on behalf of another, called the Principal, to create legal relations with a third party.

29.   The Claimant wishes to rely on the case of Excel Parking Services Ltd v Nick Jenning [2017] as a persuasive authority. In this case, the Defendant had been served with 9 Parking Charge Notices, each one occurring on a separate occasion. The Defendant in his defence was unable to make a concession that he was, he could have been on some or all of the occasions the Driver over an 8 months’ period when the contraventions had occurred. District Judge Dignan concluded that the Defendant was more likely than not the driver which satisfied the 51% needed in civil cases. Secondly, he concluded that even if the Defendant

was not the Driver, the Defendant was liable for the Parking Charge under the Law of Agency.

Raf123411

30.   Paragraph 4(6) of Schedule 4 of the Protection of Freedoms Act 2012 states the following:

Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery).

31.   The PDT Log enclosed in exhibit AA2 shows data of the vehicle registrations entered for all tickets/tariffs purchased on the date of the contravention. The Claimant submits that no parking ticket/tariff was purchased for the said vehicle when one needed to be as per the Terms and Conditions of the Car Park. Thus, 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.

32.   The Terms and Conditions printed on the signage (copy enclosed in exhibit AA1) erected onsite specifically state, amongst other things, the following: ‘After a vehicle has entered the car park a maximum period of 5 minutes is allowed to make payment’, otherwise a Parking Charge of £100.00 will be issued. The Terms and Conditions are neither unusual nor unreasonable. They are set in stone by the Client.

33.   The signage including the entrance board is prominently displayed and visible within the Site to alert motorists that they are entering/this is private land and parking is subject to Terms and Conditions. Furthermore, the Terms and Conditions on the signage are printed in a large font size, in bold and are legible. Thus, it cannot be a valid defence for any motorist to say “I did not see and read the signage” in an attempt to absolve liability and expect the Court to uphold this.

34.   The signage including the large entrance board is reflective, thus the headlights of the Defendant’s vehicle, when entering the Car Park and driving through it, will have hit them and made the warning signs more visible than they already were with ample lighting in the Car Park.

35.   In any event, the Claimant submits that their signage is compliant with the IPC Code of Practice. The Claimant's signage is also audited and approved by the International Parking Community, and is therefore fully capable of creating a legally binding contract with motorists entering the Car Park.

36.   Reliance is placed upon the decision in ParkingEye v Beavis [2015] UKSC 67 whereby the Defendant was given a contractual licence to park the vehicle in the development on the terms of the notice posted on various warning signs throughout the site, which he accepted by entering the car park. In relation to the Defendant, the terms were that the Defendant could only park the vehicle in the Car Park if, amongst other things, he purchased a ticket/tariff for the said vehicle registration number and that on breach of this term, £100.00 would be payable, which would be reduced to £60.00 if paid within 14 days. The £100.00 is the consideration.

37.   It is trite law that a Court should look at the issue of both formation of Contracts and construction of Contracts on an objective basis (ICS v West Bromwich BS [1998] 1 WLR 2303). The correct construction of these signs where the entrance sign makes it clear that the Driver was entering private property and that Terms and Conditions on entry are in place. When judged on an objective basis the signs are clear as to the terms.

38.   The Court ought to consider and/or apply the approach adopted set out by the Supreme Court in ParkingEye Ltd v Beavis [2016] AC 1172 so far as it was applicable to people entering the site and/or contract formation. The contractual formation is the same on the basis of signs in the main at the entrance as a driver enters. It is only by reference to the signs that a driver would discover these matters.

39.   Lord Neuberger at para 94 of Beavis stated as follows:

“It was common ground before the Court of Appeal, and is common ground in this court, that on the facts which we have just summarised there was a contract between Mr Beavis and ParkingEye. Mr Beavis had a contractual licence to park his car in the retail park on the terms of the notice posted at the entrance, which he accepted by entering the site. Those terms were that he would stay for not more than two hours, that he would park only within the marked bays, that he would not park in bays reserved for blue badge holders, and that on breach of any of those terms he would pay £85. Moore- Bick LJ in the Court ofAppeal was inclined to doubt this analysis, and at one stage so were we. But, on rejection, we think that it is correct. The £85 is described in the notice as a ”parking charge”, but no one suggests that that label is conclusive. In our view it was not, as a matter of contractual analysis, a charge for the right to park, nor was it a charge for the right to overstay the two-hour limit. Not only is the £85 payable on certain breaches which may occur within the two-hour free parking period, but there is no fixed period of time for which the motorist is permitted to stay after the two hours have expired, for which the £85 could be regarded as consideration. The licence having been terminated under its terms after two hours, the presence of the car would have constituted a trespass from that point on. In the circumstances, the £85 can only be regarded as a charge for contravening the terms of the contractual licence.”

40.   The approach as set out in Beavis is the correct analysis of contractual formation. The terms of the licence having being broken by the Driver at that point becomes a trespasser and so liable to the Charge. Further, this was also the conclusion of HHJ Wood in VCS ltd v Crutchley (Unreported 2017 County Court at Liverpool) hence it is clear that the entrance board alone is sufficient for contract formation or put correctly it is clear from the signs the terms of the contractual licence the basis that a user is entitled to use the Site.

41.   The Claimant submits that there are warning notices all setting  out the Terms and Conditions of entering private land. It is the Claimant’s submission that the signage is prominently displayed and visible on entry to private land. The Claimant has done what is reasonable to draw attention to the existence of the contractual terms and therefore has given sufficient notice of them.

42.   The Claimant reiterates the Judgment of under Vine v Waltham Forest LBC [2002] 1 WLR 2383, 2390, where Roch L.J. stated:

“Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking spaces or parking areas on their property.”

43.   In addition, Roch L.J. found the following;

“To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning. In this case the recorder might have reached such a conclusion about the appellant’s state of knowledge, but he did not do so.”

44.   The Claimant has reasonably brought to the Driver’s attention the Terms and Conditions of entering private land. That mere fact that the Driver did not look out for the warning notices is through a fault of his own. The warning notices are made available for motorists to utilise and adhere to whatever Terms and Conditions are made available to enter the private land.

45.   The Claimant submits that they did have the right under their Contract to grant a license to motorists entering private land. The Defendant should not confuse the making of a Contract with the power to perform it. Reliance is placed on the case of Vehicle Control Services Ltd v ftMRC [2013] EWCA Civ 186, Paragraph 22;

“There is no legal impediment to my contracting to sell you Buckingham Palace. If tinevitably) I fail to honour my contract then I can be sued for damages. On the stock market it is commonplace for traders to sell short, in other words to sell shares that they do not own in the hope of buying them later at a lower price. In order to perform the contract the trader will have to acquire the required number of shares after the contract of sale is made. Moreover, in some cases a contracting party may not only be able to contract to confer rights over property that he does not own, but may also be able to perform the contract without acquiring any such right”. 

46.   The Claimant further adopts the Judgment is so far as Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 in whereby a housing trust with no interest in land was held to have validly granted a tenancy of the land to a residential occupier. Lord Hobhouse of Woodborough cites;

“The case of Mr Bruton depends upon his establishing that his agreement with the Housing Trust has the legal effect of creating a relationship of tenant and landlord between them. That is all. It does not depend upon his establishing a proprietary title good against all the world or against the

Council. It is not necessary for him to show that the Council had conveyed a legal estate to the Housing Trust”.

47.   The tenancy would not have been binding on the landowner, but bound the two contracting parties in precisely the same way as it would have done if the grantor had had an interest in the land.

48.   The analysis is no different to this case. The Claimant has contracted with the Driver based upon the signage situated at the entrance and throughout the Site. The scheme cannot depend on whether the landowner operates it themselves or employs a contractor like the Claimant.

Raf123411

49.   The Claimant would not know or care what, if any, interest the Claimant has in the land, or what relationship they have with the landowner if they have no interest. This conclusion is reinforced when one bears in mind that the question whether a contractual provision is a penalty turns on the construction of the contract, which cannot normally turn on facts not recorded in the Contract unless they are known, or could reasonably be known, to both parties. This is supported in the recent Supreme Court case of ParkingEye v Beavis 2014 [2015] EWCA Civ 402, Paragraph 99;

“It is an interest of ParkingEye, because it sells its services as the managers of such schemes and meets the costs of doing so from charges for breach of the terms land if the scheme was run directly by the landowners, the analysis would be no different). As we have pointed out, deterrence is not penal if there is a legitimate interest in infiuencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract. Mr Butcher QC, who appeared for the Consumers Association tinterveners), submitted that because ParkingEye was the contracting party its interest was the only one which could count. For the reason which we have given, ParkingEye had a sufficient interest even if that submission be correct. But in our opinion it is not correct. The penal character of this

scheme cannot depend on whether the landowner operates it himself or employs a contractor like ParkingEye to operate it. The motorist would not know or care what if any interest the operator has in the land, or what relationship it has with the landowner if it has no interest. This conclusion is reinforced when one bears in mind that the question whether a contractual provision is a penalty turns on the construction of the contract, which cannot normally turn on facts not recorded in the contract unless they are known, or could reasonably be known, to both parties.”

50.   The Claimant respectfully refers to the Contract Witness Statement enclosed in exhibit AA1 which demonstrates their authority to issue Parking Charges to those vehicles found/seen in a manner in breach of the Terms and Conditions and to recover any unpaid Charges in their own name through debt recovery/Court action.

51.   The Claimant submits that as at 29 September 2014, they were a member of the accredited trade association of the Independent Parking Committee (IPC) to which reference was made on the Notices and to which the Claimant still belongs. The IPC code of practice is a detailed code of regulation governing signs, charges and enforcement. Schedule 5 deals with Parking Charges and provides that “it is suggested the maximum parking charge should be £100.00”

52.   The Claimant submits that £100.00 for a Parking Charge is not an extortionate sum at all, but in line with the recommendation provided by the IPC.

53.   The £60.00 is for the debt recovery charge. The Claimant refers to the IPC Code of Practice Part E Schedule 5- Parking Charges which states the following:

’Where a Parking Charge becomes overdue a reasonable sum may be added. This sum must not exceed £60 tinclusive of VAT where applicable) unless Court Proceedings have been initiated. ’

54.   The Claimant submits that the debt recovery charge included within the Claim does not exceed £60.00 and therefore is in accordance with the IPC Code of Practice. The £25.00 is the Court fee.

55.   In consideration that the charge applied is an unfair contract term, their Lordships Neuberger and Sumption in ParkingEye v Beavis [2015] UKSC 67 offered that:

[107.] ”In our opinion the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute.

[109] ”... The risk of having to pay it was wholly under the motorist’s own control... In our opinion, a hypothetical reasonable motorist would have agreed to objectively reasonable terms, and these terms are objectively reasonable.”

[111] The notion of a single sum between  £50 and £100  for overstaying even by a minute, appears to be a very common practice, in that it is adopted by many, probably the majority of, public and private car park operators. As for the suggestion that the overstay may have arisen from unforeseen circumstances, we find it hard to regard that as relevant. The object of the charge is simply to infiuence the behaviour of motorists...”

56.   The Claimant relies on ParkingEye Ltd v Beavis [2016] AC 1172 and submits that they do not need to suffer a financial loss. Lord Neuberger at paragraph 99 stated that:

“The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss. The scheme in operation here land in many similar car parks) is that the landowner authorises

ParkingEye to control access to the car park and to impose the agreed charges, with a view to managing the car park in the interests of the retail outlets, their customers and the public at large”.

57.   In light of the above, the Claimant respectfully requests that the Application is dismissed on this limb also.

Order

58.   The Claimant respectfully requests that the Defendant’s Application to set aside Judgment pursuant to CPR Part 13.3 be dismissed and that cost be awarded in favour of the Claimant, to be summarily assessed.

nosferatu1001

Did you get that info from the courts as you were told to?
The important part of a set aside is service, and theyve tried to pretend it doesn't matter with that single sentence...

Le_Kirk

I had email from Excel yesterday with their defence prior to hearing in April.

Did you mean witness statement?  Claimants don't submit a defence.