CCJ issued after being misled by private parking firm - VCS

Rmc2018

thank you so much for getting back to me @henrik777
Applicant. They are the respondent. - should this be applied throughout the whole of the WS 

When considering promptness the court will start from the point you knew about the CCJ at this point. You need to explain, to the satisfaction of the court, the delay in making your application. - I only found out about the CCJ on 05/01/2021 after a credit check was carried out and this was identified

Also there is no mention of the claim form. What happened to that ? Did you get it ? - the only form I received from the courts was the Judgment for Claimant (in default), everything prior was directly from VCS and I have not received anything since

the court rules you have provided, would you recommend I add these to my WS as opposed to referencing the CRA?

Le_Kirk

The court rules are for your benefit to help you compiling your witness statement and defence but you can of course refer to them.

Coupon-mad

I do hope you do Google and remove 'wilfully' because it drives me mad when people copy that word from somewhere!  Terrible error of a word...

henrik777

should this be applied throughout the whole of the WS 

Preferably.

I only found out about the CCJ on 05/01/2021 after a credit check was carried out and this was identified

That's not how i read your witness statement. Definitely clarify that.

the only form I received from the courts was the Judgment for Claimant (in default), everything prior was directly from VCS and I have not received anything since

I'd investigate that tomorrow to add anything relevant to your application.

the court rules you have provided, would you recommend I add these to my WS as opposed to referencing the CRA?

I wouldn't just copy though. Reference them along with your stuff to show why the application should succeed and thatthey were up to no good and you should get costs as a result.

Rmc2018

sorry everyone I have 1001 things going on again and although this is in my mind 24/7, working on it has been very difficult but I have taken all your advise onboard and amended my WS, if you could let me know if this is more clearer  - 

WITNESS STATEMENT

I am XXXX and I am the Applicant in this matter. This is my supporting statement to my application dated XXXX requesting to:

a. Set aside the default judgment dated 21 October 2020 on the basis that the Respondent has acted wholly unreasonably and misled a litigant in person 

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 Respondent obtained a Default judgment against me as the Applicant on 20/11/2020. I am aware that the Respondent is Vehicle Control Services, and that the assumed claim is in respect of an unpaid Parking Charge Notices from 26/05/2020. I contest this charge for the reasons outlined in the attached draft defence.

1.3. On 12th June 2020 on receipt of a Notice to Keeper from VCS I appealed against a PCN issued to me on 26/05/2020. 

1.4. A response to this to this appeal has never been received. 

1.5. However, Between the dates of June 2020 and November 2020, I have received further threatening letters from the Respondent requesting payment of the PCN (plus inflated charges). Following receipt of every letter received from VCS, I have called the company asking why such documents were being sent to me when my original appeal had still not been responded to. Each time I was advised by different call handlers to ignore all documents whilst awaiting a response to my appeal. The call handlers explained that due to Covid-19, a reduction in staff numbers and members of staff working from home, VCS were dealing with a back log of work, the letters had been sent in error, to ignore and to await a response to my original appeal that was being dealt with - no response was ever received. 

1.6. This poor advice was repeated each time I called until the point of me receiving a letter titled ‘Judgment for Claimant (in default)’ on 24/10/2020. Once again, I called the respondent in shock and demanded a constructive response from the respondent asap. I was told a manger would call me back, this information was relayed until I received a call back on 10/11/2020.  

 

1.7. Prior to the applicant receiving Judgment for Claimant (in default) on 24/10/2020 no previous letters from the court were received. The applicant is now aware that a claim form should have been received prior to the Judgment for Claimant (in default) but this was never received by the applicant. 

 

1.8. On 10/11/2020 I received a call back from the Respondent and spoke with a call handler named Mark (Exhibit RM01) who confirmed that all previous advice given between June and November advising me to ignore the letters received was incorrect. 

 

1.9. The call handler advised that there was a CCJ in place, however due to the previous incorrect information I was given, he could make an exceptional settlement offer and that in order to close the case he was in a position to reduce the charge to £185.

 

1.10. In Exchange of me agreeing to pay the fee of £185 direct to the respondent, I was advised that in return the call handler was able to “hold the matter” “pull the case from the third party involved” and “bring the matter to a close”. This was also reiterated in the follow up letter I requested from the respondent for confirmation (Exhibit RM02) that also stated that ‘we will accept the balance of £185 as FULL and FINAL settlement of the claim raised”. 

 

1.11. During this call on 10/11/2020 the call handler led me to believe that the default Judgment had been placed on hold. The respondent granted me until November 30th to pay the outstanding claim in result of the case being settled. 

1.12. I paid the full balance directly into the account details provided by the respondent on 25/11/2020 as agreed and was led to believe by the respondent that the matter and the claim was settled as advised and that court action was no longer being enforced.

1.13. Since making this payment no further correspondence has been received from the Respondent or any other party regarding the claim

1.14. I was therefore astounded to be informed on 5th January 2021 that following a credit check on my profile a CCJ against my name had been identified. 

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

1.15.1. I discovered a CCJ was lodged onto my credit file on the 5th January 2021.

1.15.2. On 5th and 6th of January I contacted both the County Court Business Centre and the respondent to obtain relevant information relating to this default judgment.

1.15.3. I was advised by CCBC that the respondent had not advised the court of the agreement that was made regarding the settlement of the claim directly with the respondent and that as I had not paid the fee by 21/11/2020 a CCJ was placed on my file 

1.15.4. On contacting the respondent, I was advised that the information given during the call on 10/11/2020 was correct and that VCS had nothing to do with the claim, however I am aware that they are the claimant.

1.15.5. On 12th January 2020 VCS were served an email (Exhibit RM03) requesting permission to set aside the CCJ based on the misleading information and contradicting time frames given by the respondent resulting in me settling the claim 4 days after the claim date (but within the date given by VCS). The respondent once again failed to respond preventing 

1.16. On 20th January 2021 I have willingly submitted my case in order to set-aside this judgement and fairly present my case.

1.17. I believe the Respondent has behaved unreasonably in pursuing a claim against me whilst providing incorrect information in regard to the position of my claim and the next steps I was required to take. 

1.18. It is my view that the respondent has behaved unreasonably by misleading the applicant on the correct status of the claim, confirming during the dates of June 2020 and November 2020 that it was still at the appeal stage and that the documents being served were in error due to COVID-19 and a backlog of cases being worked. This is contrary to the fairness and transparency doctrines in the Consumer Rights Act 2015

1.19. It is my view that the respondent has behaved unreasonably by paying no regard to the dates allocated for me to settle the claim and leading me to believe that the exception agreement made included the retraction of court involvement. 

 

1.20. it is my view that if the respondent knew that the CCJ was still in place, the respondent should not have agreed a settlement date that conflicted with the date the payment should be made in order to avoid the CCJ. The respondent set the date that was outside the 30 day deadline (which I was unaware still applied following the settlement terms agreed by respondent).   

 

1.21. Clearly, when it is still within the first 30 days to prevent a CCJ and the Applicant calls the Respondent in distress and shock at receiving such letter saying they are at risk of receiving a CCJ due to misinformation from the Respondent, the priority of an honest and fair trader with an experienced legal team who deal with the small claims process every day, would be to explain the implications and deadlines. Instead, I was completely misled by the call handler who prioritised the interests of VCS receiving my money as opposed to my interests. 

 

1.22. I believe that the respondent prevented the opportunity presented by the applicant from ensuring the application of Rule 1.1 The Overriding Objective of enabling the court to deal with cases justly and at proportionate cost, by ignoring the set aside by consent email served on 12th January 2021. 

 

1.23. The applicant has held employment within the Financial Industry for 15 years, this shows that I am not a financially naive person who could be put at blame for such misunderstanding.  This is a clear case of  a financially astute person being taken advantage of, either deliberately or by neglect by the respondent.  

1.24.  Considering this witness statement, I therefore respectfully request that the Court sets aside the judgment in this claim.

1.24.1 I respectfully request that the court should use its discretion to set aside the CCJ, order the respondent to pay back the £255 court fee and the £185 paid by the applicant, and allow the applicant to defend the case. 

 

Statement of Truth

 

I believe that the facts stated in this witness statement 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.

 

SIGNATURE 

.......................... 

xxxxxxxxxxxxx 

DATE xx/xx/xxxx 

 

 

 

 

Rmc2018

also I refence the draft defence in my WS, do I submit this along with the N244 & WS and what should this include? Is it just a repeat of what I have put in my WS? 

Sorry it feels like I am taking one step forward and 3 back 

Redx

A defence is a concise statement of what the case is about and the legal arguments about the original PCN and court claim , not war and peace , so opens the door to the TARDIS. The witness statement is about entering the TARDIS and is war and peace on expanding the open door , fleshing it out , so you will have to do the WS about the original court case and PCN before hearing 2

So a CCJ set aside requires WS 1 and the orders and forms etc , plus the draft defence 1 to show chances of success if the set aside is granted , whereas WS 2 is about the original paperwork and supplements the defence 1

So no , the defence is not a repeat of the WS , neither of them in fact

The defence will be an adaptation of the template defence by coupon mad

It's complicated because you are unravelling the whole saga , so is back to front , with the added complications of the CCJ , so is normally 2 hearings

Hearing 1 , about the set aside application , discuss the court orders and the set aside WS 1 etc

Hearing 2 , the PCN plus original court claim , discuss the original PCN and court claim , defence plus witness statement 2

Coupon-mad

. I was told a manger would call me back

Manager!

I'd add the fact no claim form was received (if true...you didn't ignore it did you?) and the info below, to this first section:

a. Set aside the default judgment dated 21 October 2020 on the basis that  no claim form was received, only a Notice of Default Judgment and following that, the Respondent acted wholly unreasonably and misled a litigant in person.  Instead of taking payment from me straight away when I rang (well within the first 30 days from Judgment in Default, which was a time when I now realise that the CCJ could have been cleared) the Respondent delayed and deferred payment for no reason and knowingly caused a permanent CCJ.

And add to this bit, as shown:

1.11. During this call on 10/11/2020 the call handler led me to believe that the default Judgment had been placed on hold.  I asked what this meant and when I should pay.  Without me asking for it (because there was no benefit to me in delaying) the respondent made out that they were doing me a favour by deferring payment until November 30th.  In fact they were sealing my fate and causing a CCJ, and this is a serial litigant with their own in-house legal team, so a Manager discussing payment by a consumer of a recent Judgment clearly knew (or ought to have known) the implications of not taking payment from me during the first call. 

1.12.  The Court's attention is drawn to the Respondent's specific breach of the Consumer Protection from Unfair Trading Regulations 2008 (Misleading omissions)

6.—(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

1.13.  It is clear that the conduct of the Respondent meets that definition and the Court's attention is further drawn to The Consumer Protection (Amendment) Regulations 2014 ('the 2014 Regs') which amended the CPTURS 2008 to allow consumers a new right to redress, which applies in circumstances where they have entered into a contract with the trader – s. 27A(2) and that trader has engaged in a prohibited practice in relation to the product or service and that the trader is either aware he has engaged in such a practice (or could reasonably be expected to be aware of it) – s. 27A(4).  Where the prohibited practice is a significant factor in the consumer’s decision to enter into the contract or make the payment – s. 27A (6), the 2014 Regs provide for consumer remedies, including:-

(a) the right to treat the contract as void within 90 days of the contract being entered into/payment being made;
(b) the right to damages – this can be on the basis of the financial loss suffered or the alarm, distress, physical inconvenience or discomfort that has been endured and also for actual loss (both apply).


1.14.  For the avoidance of doubt, I am treating the contract and transactional decision to pay at the end of the month rather than on the phone in early October 2020, as void, pursuant to the 2014 Regs.  It was a transactional decision which I would not have made had the Respondent not misled me and withheld the material information that paying within 30 days was the only way to avoid a CCJ and put the claim behind me.   It is my position that this 'misleading omission' most definitely meets the high bar in Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269 and I ask the court for an Order setting aside the CCJ and awarding my costs to be repaid by the Respondent, including the court fee for this application and my time spent rectifying this unfair CCJ at £19 per hour, plus my attendance costs (loss of work or loss of leave) for the hearing(s).   

Then re-number the rest below that.  In fact, change all the numbers to simple numbering: 1, 2, 3, 4, 5,  etc! 

Rmc2018

DEFENCE

 

____________________

 

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

 

The facts as known to the Defendant:

 

2.       The facts are that the vehicle, registration xxxxxxxx, of which the Defendant is the registered keeper, was parked in the car park at xxxxxxxxxxxxxxxxxxxxxxx for less than the 10 minute permitted time frame on 21/05/2020

 

3.  On entering the car park the Defendant read the sign regarding parking within the Excel Parking car park which states that 10 minutes is allowed to purchase a ticket. Aware of this, the defendant ensured her car was parked for only 8 minutes whilst retrieving funds for the carp park, before returning to A Notice to Keeper on the Vehicle.

 

The sign also states that the car park is monitored by Parking Attendants for customer service and parking compliance however the defendant could not locate any attendants even though the car park was empty. 

 

The defendant appealed the PCN via the stipulated appeals process but has never received a response. She has however received further letters from Vehicle Control Services requesting inflated fees and threatening further action. 

 

The defendant called and emailed the Claimant via both Excel Parking and Vehicle Services contact details numerous times regarding the appeal and was told that the claim was still at the appeal stage, to ignore the letters being served and await a response to the appeal submitted. A response was never received, a reply to the defendants’ emails were never received and requested call backs were never received until the defendant received Judgment for Claimant (in default) which resulted in the Claimant offering the defendant the opportunity to settle the claim by paying £185 direct to the Claimant which the Defendant did .

 

4.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

 

5.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

 

6.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

 

7.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

 

8.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

 

 

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

 

9.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

 

10.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

 

11.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

 

12.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

 

13.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

 

14.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

 

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

 

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

 

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

 

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

 

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

 

15.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

 

 

 

16.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

 

 

In the matter of costs, the Defendant seeks:

 

17.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

 

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

 

18.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

 

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.

 

Defendant’s signature:

 

Date:

 

Rmc2018

WITNESS STATEMENT

I am XXXX and I am the Applicant in this matter. This is my supporting statement to my application dated XXXX requesting to:

a.     Set aside the default judgment dated 21 October 2020 on the basis that  no claim form was received, only a Notice of Default Judgment and following that, the Respondent acted wholly unreasonably and misled a litigant in person.  Instead of taking payment from me straight away when I rang (well within the first 30 days from Judgment in Default, which was a time when I now realise that the CCJ could have been cleared) the Respondent delayed and deferred payment for no reason and knowingly caused a permanent CCJ.

b.     Order for the Respondent to pay the Applicant £255 as reimbursement for the set aside fee and the £185 claim fee paid by the applicant

DEFAULT JUDGMENT

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

 

2.     I understand that the Respondent obtained a Default judgment against me as the Applicant on 20/11/2020. I am aware that the Respondent is Vehicle Control Services, and that the assumed claim is in respect of an unpaid Parking Charge Notices from 26/05/2020. I contest this charge for the reasons outlined in the attached draft defence.

 

3.     On 12th June 2020 on receipt of a Notice to Keeper from VCS I appealed against a PCN issued to me on 26/05/2020.

 

4.     A response to this to this appeal has never been received. 

 

5.     However, Between the dates of June 2020 and November 2020, I have received further threatening letters from the Respondent requesting payment of the PCN (plus inflated charges). 

 

6.     Following receipt of every letter received from VCS, I have called the company asking why such documents were being sent to me when my original appeal had still not been responded to. Each time I was advised by different call handlers to ignore all documents whilst awaiting a response to my appeal. 

 

7.     The call handlers explained that due to Covid-19, a reduction in staff numbers and members of staff working from home, VCS were dealing with a back log of work, the letters had been sent in error, to ignore and to await a response to my original appeal that was being dealt with - no response was ever received. 

 

8.     This poor advice was repeated each time I called until the point of me receiving a letter titled ‘Judgment for Claimant (in default)’ on 24/10/2020. Once again, I called the respondent in shock at receiving a letter from the court and demanded a constructive response from the respondent asap. I was told a manager would call me back, this information was relayed until I received a call back on 10/11/2020.  

 

9.     Prior to the applicant receiving Judgment for Claimant (in default) on 24/10/2020 no previous letters from the court were received. The applicant is now aware that a claim form should have been received prior to the Judgment for Claimant (in default) but this was never received by the applicant. 

 

10.  On 10/11/2020 the applicant received a call back from the Respondent and spoke with a call handler named Mark (Exhibit RM01) who confirmed that all previous advice given between June and November advising me to ignore the letters received was incorrect. 

 

11.  The call handler advised that there was a CCJ in place, however due to the previous incorrect information I was given, he could make an exceptional settlement offer and that in order to close the case he was in a position to reduce the charge to £185 and close the case.

 

12.  In Exchange of me agreeing to pay the fee of £185 direct to the respondent, I was advised that in return the call handler was able to “hold the matter” “pull the case from the third party involved” and “bring the matter to a close”. This was also reiterated in the follow up letter I requested from the respondent for confirmation (Exhibit RM02) that also stated that ‘we will accept the balance of £185 as FULL and FINAL settlement of the claim raised”. 

 

13.  During this call on 10/11/2020 the call handler led me to believe that the default Judgment had been placed on hold.  I asked what this meant and when I should pay.  Without me asking for it (because there was no benefit to me in delaying) the respondent made out that they were doing me a favour by deferring payment until November 30th.  In fact they were sealing my fate and causing a CCJ, and this is a serial litigant with their own in-house legal team, so a Manager discussing payment by a consumer of a recent Judgment clearly knew (or ought to have known) the implications of not taking payment from me during the first call.  

 

14.  The Court's attention is drawn to the Respondent's specific breach of the Consumer Protection from Unfair Trading Regulations 2008 (Misleading omissions)

 

6.—(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

 

(a) the commercial practice omits material information,

 

(b) the commercial practice hides material information,

 

(c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

 

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

 

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

 

15.  It is clear that the conduct of the Respondent meets that definition and the Court's attention is further drawn to The Consumer Protection (Amendment) Regulations 2014 ('the 2014 Regs') which amended the CPTURS 2008 to allow consumers a new right to redress, which applies in circumstances where they have entered into a contract with the trader – s. 27A(2) and that trader has engaged in a prohibited practice in relation to the product or service and that the trader is either aware he has engaged in such a practice (or could reasonably be expected to be aware of it) – s. 27A(4).  Where the prohibited practice is a significant factor in the consumer’s decision to enter into the contract or make the payment – s. 27A (6), the 2014 Regs provide for consumer remedies, including:-

(a) the right to treat the contract as void within 90 days of the contract being entered into/payment being made;

(b) the right to damages – this can be on the basis of the financial loss suffered or the alarm, distress, physical inconvenience or discomfort that has been endured and also for actual loss (both apply).

 

16.  For the avoidance of doubt, I am treating the contract and transactional decision to pay at the end of the month rather than on the phone in early November 2020, as void, pursuant to the 2014 Regs.  It was a transactional decision which I would not have made had the Respondent not misled me and withheld the material information that paying within 30 days was the only way to avoid a CCJ and put the claim behind me.  

 

17.  It is my position that this 'misleading omission' most definitely meets the high bar in Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269 and I ask the court for an Order setting aside the CCJ and awarding my costs to be repaid by the Respondent, including the court fee for this application and my time spent rectifying this unfair CCJ at £19 per hour, plus my attendance costs (loss of work or loss of leave) for the hearing(s). 

 

18.  I paid the full balance directly into the account details provided by the respondent on 25/11/2020 as agreed and was led to believe by the respondent that the matter and the claim was settled as advised and that court action was no longer being enforced.

 

19.  Since making this payment no further correspondence has been received from the Respondent or any other party regarding the claim

 

20.  I was therefore astounded to be informed on 5th January 2021 that following a credit check on my profile a CCJ against my name had been identified. 

 

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

15.1 I discovered a CCJ was lodged onto my credit file on the 5th January 2021.

15.2 On 5th and 6th of January I contacted both the County Court Business Centre and the respondent to obtain relevant information relating to this default judgment.

 

16.  I was advised by CCBC that the respondent had not advised the court of the agreement that was made regarding the settlement of the claim directly with the respondent and that as I had not paid the fee by 21/11/2020 a CCJ was placed on my file 

 

17.  On contacting the respondent, I was advised that the information given during the call on 10/11/2020 was correct and that VCS had nothing to do with the claim, however I am aware that they are the claimant. 

 

18.  On 12th January 2020 VCS were served an email (Exhibit RM03) requesting permission to set aside the CCJ based on the misleading information and contradicting time frames given by the respondent resulting in me settling the claim 4 days after the claim date (but within the date given by VCS). The respondent once again failed to respond. 

 

19.  On 20th January 2021 I have willingly submitted my case in order to set-aside this judgement and fairly present my case.

 

20.  I believe the Respondent has behaved unreasonably in pursuing a claim against me whilst providing incorrect information in regard to the position of my claim and the next steps I was required to take. 

 

21.  It is my view that the respondent has behaved unreasonably by misleading the applicant on the correct status of the claim, confirming during the dates of June 2020 and November 2020 that it was still at the appeal stage and that the documents being served were in error due to COVID-19 and a backlog of cases being worked. This is contrary to the fairness and transparency doctrines in the Consumer Rights Act 2015

 

22.  It is my view that the respondent has behaved unreasonably by paying no regard to the dates allocated for me to settle the claim and leading me to believe that the exception agreement made included the retraction of court involvement. 

 

23.  it is my view that if the respondent knew that the CCJ was still in place, the respondent should not have agreed a settlement date that conflicted with the date the payment should be made in order to avoid the CCJ. The respondent set the date that was outside the 30 day deadline (which I was unaware still applied following the settlement terms agreed by respondent).   

 

24.  Clearly, when it is still within the first 30 days to prevent a CCJ and the Applicant calls the Respondent in distress and shock at receiving such letter from the court saying they are at risk of receiving a CCJ due to misinformation from the Respondent, the priority of an honest and fair trader with an experienced legal team who deal with the small claims process every day, would be to explain the implications and deadlines. Instead, I was completely misled by the call handler who prioritised the interests of VCS receiving my money as opposed to my interests. 

 

25.  I believe that the respondent prevented the opportunity presented by the applicant from ensuring the application of Rule 1.1 The Overriding Objective of enabling the court to deal with cases justly and at proportionate cost, by ignoring the set aside by consent email served on 12th January 2021. 

 

26.  The applicant has held employment within the Financial Industry for 15 years, this shows that I am not a financially naive person who could be put at blame for such misunderstanding.  This is a clear case of  a financially astute person being taken advantage of, either deliberately or by neglect by the respondent.  

 

27.  Considering this witness statement, I therefore respectfully request that the Court sets aside the judgment in this claim.

 

28.  I respectfully request that the court should use its discretion to set aside the CCJ, order the respondent to pay back the £255 court fee and the £185 paid by the applicant, and allow the applicant to defend the case. 

 

Statement of Truth

 

I believe that the facts stated in this witness statement 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.

 

SIGNATURE 

.......................... 

xxxxxxxxxxxxx 

DATE xx/xx/xxxx