Set aside CCJ with parking session paid

Luvara

I responded to the claim form and DBC Legal replied that the case was going to be put on hold while they review the evidence (the parking session receipt from RingGo I sent to them).

The facts I set to get a set aside are because I have a real prospect of successfully defending the claim, as I set out on the WS:

6. Pursuant to CPR 13.3 (1)(a), I would like to draw attention to Exhibit 3.1 which shows a RingGo parking receipt for vehicle XXXX at the University of Hertfordshire parking Zone E on the 28/02/2020, valid for 6 hours, from 9:49AM to 3:49PM. This is the same date and on the same time frame the original contravention allegedly took place. Photographic evidence also shows the vehicle entering the road leading to the car park in Zone E. Further details to defend this are in the attached Draft Defence. 

I have also stated these two points on my WS about why I did not communicate my last change of address to DCB Legal:

10. Between the date of the letter on Exhibit 1.3 (30/09/2020) where the claimant communicated that the case was going to remain in hold and the date I moved out from XXXX (18/10/2020) I did not received further communication from the Claimant. 

11. Just a week later, on the 26/10/2020 I tested positive for Covid-19, and I was then admitted to hospital on the 04/11/20. This situation along with a home move and the fact that the last information I had is that the case was on hold, lead me to dismiss from mind to communicate to the Claimant my change of address.

As I said before, I have also included a defence based on the template provided by Coupon-mad and a six-point draft order. I don't know how could I expand this more or make it more persuasive for the judge to consider a set aside?

Le_Kirk

In your defence you need to number every paragraph.

nosferatu1001

I responded to the claim form... did you?! DCB cannot put anything on hold, once it hits the court system

Luvara

nosferatu1001 said:

I responded to the claim form... did you?! DCB cannot put anything on hold, once it hits the court system

Sorry I got confused between the claim form and the letter of claim. I replied to the letter of claim and they replied back stating that the case was going to be put on hold.

The claim form must have arrived to my old address shortly after I moved, as just 37 days passed between my move and the judgment.

nosferatu1001

You cannot mix up the two
This is a formal documented process. You must use the correct terms otherwise you confuse the reader. 

Coupon-mad

I think you are getting there (defence looks fine) but can you show your witness statement and Draft Order in a new reply here again please, as I am unclear whether you've based it on the set aside CCJ examples of witness statements, as you should have done, and not wrongly looked at the 'normal' witness statement link that isn't about CCJs.

Luvara

Coupon-mad said:

I think you are getting there (defence looks fine) but can you show your witness statement nd Draft Order in a new reply here again please, as I am unclear whether you've based it on the set aside CCJ examples of witness statements, as you should have done, and not wrongly looked at the 'normal' witness statement link that isn't about CCJs.

Thanks! This is my WS and Draft Order:

IN THE NORTHAMPTON COUNTY COURT BUSINESS CENTRE

Claim No. XXXXXX

 

BETWEEN:

Claimant
FIRST PARKING LLP
– and –
Defendant
XXXXXX
_________________________________
WITNESS STATEMENT
_________________________________

1. I am Mr XXXXXX of XXXXXX, and I am the defendant against whom this claim is made. I make this Witness Statement in support of the application for an order that the judgment in this case (Claim No. XXXXXX Judgment dated 25/11/2020) be set aside. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge. 

2. In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows: 

Sequence of events

3. I understand the claimant obtained a default Judgment against me as the defendant on 25/11/2020. However, this default Judgment was not been served at my current address. I only learnt of the existence of this claim on the 23/12/2020 when I performed a check on my credit report which indicated a CCJ. On this report only the claim number was shown, so I sent an email to the County Court Business Centre asking for further information on this claim. The response from the CCBC was received on the 06/01/2021.

4. On the email received by the CCBC it shown the case details referencing a PCN number XXXXXX issued to the vehicle XXXXXX at the University of Hertfordshire on the 28/02/2020. 

5. CPR 13.3 states:

 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.

6. Pursuant to CPR 13.3 (1)(a), I would like to draw attention to Exhibit 3.1 which shows a RingGo parking receipt for vehicle XXXXXX at the University of Hertfordshire parking Zone E on the 28/02/2020, valid for 6 hours, from 9:49AM to 3:49PM. This is the same date and on the same time frame the original contravention allegedly took place. Photographic evidence also shows the vehicle entering the road leading to the car park in Zone E. Further details to defend this are in the attached Draft Defence. 

7. I was first aware of the PCN related to this claim when I received a Letter of Claim dated 18/09/2020 (Exhibit 1.1) at the address of XXXXXX to which I moved on the 18/11/2019, for which I can provide proof via a Tenancy Agreement from this address (Exhibit 2.1). I acknowledged the Letter of Claim (Exhibit 1.1) and replied to it with a letter dated 23/09/2020 (Exhibit 1.2), for which I received as response via a letter dated 30/09/2020 (Exhibit 1.3) explaining that the case was going to remain on hold while reviewing the case and supporting documentation further.

8. I moved to XXXXXX on the 16/10/2020, for which I can provide proof via a Tenancy Agreement for this address (Exhibit 2.2), and I last collected the mail from my previous address on the 18/10/2020, when I returned the property keys for which I can provide proof if required. No further communication was received from the Claimant on this address during this time frame. I updated the address on my Drivers Licence and the vehicle V5A promptly on time, as well as I updated my electoral roll registration for all which I can provide proof if required.

9. Between the date of the letter on Exhibit 1.3 (30/09/2020) where the claimant communicated that the case was going to remain in hold and the date of the Judgment (25/11/2020) I did not received any other communication from the Claimant.

10. Between the date I moved out from XXXXXX (18/10/2020) and the date of Judgment (25/11/2020) only 38 days passed. On the 26/10/2020 I tested positive for Covid-19, and I was then admitted to hospital on the 04/11/20. This situation along with a home move and the fact that the last information I had is that the case was on hold, lead me to dismiss from mind to communicate to the claimant my change of address.

The Beavis case is against this claim 

11. Furthermore to the above points, this situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause. 

12. However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one. 

Redacted Landowner Contract

13. The Claimant has appended a redacted ‘landowner contract’ which has little or no probative value and which offends against the rules of evidence. There is nothing to say what the landowner's approach (whoever they may be) is to penalising genuine patrons who pay, and even the signatories could be anyone (even a stranger to the land?). It is clear that two Directors have not signed this contract for either party, contrary to the Companies Act. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent. 

14. In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. 

https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...'' 

15. Considering the above I was unable to defend this claim. I believe that I have a real prospect of successfully defend this claim and that the Default Judgement against me was issued incorrectly. Thus, I also believe that the claim 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, and to allow 14 days for me to submit my defence as per the Draft Order on page 3 of this document.

16. I would like to politely ask the Court to appreciate my lack of knowledge on legal matters when redacting this Statement of Witness, and that I consider myself a law-abiding citizen and I am trying to do what I believe is fair and honest on this 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.

Signed:

Dated:

DRAFT ORDER

IN THE COUNTY COURT AT
DBC Legal (Claimant)
And
XXXXX (Defendant)
District Judge

UPON reading the Defendant's application dated [date] and the annexed witness statement of dated [date],

IT IS ORDERED that:

1. The default judgment dated [date] 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.

Coupon-mad

Get rid of 'my defence is repeated' and change it to:

a draft defence is appended with this witness statement, to show that once the unknown CCJ is set aside I do have good prospects of successfully defending this claim.

Remove 11 through to 14 inclusive which make no sense in this document, they appear to be hybrid stuff plucked from someone's defence.

Show us the changes you made to the template defence at para 3, etc?

Luvara

Changes made to the WS, thanks!

The draft defence from para 3 is:

3. On the 28/02/20 the Defendant attended the University of Hertfordshire as a guest lecturer to the BSc Aerospace Technology students. The Defendant paid for a 6 hour parking session with a £3.50 fee at 9:49AM for for the vehicle LL68FVC.

4. The Defendant was totally unaware and had no reasonable cause to believe that a PCN had been issued to the vehicle quoted above as the parking fee had been paid. In order to pay the parking fee, the Defendant made use of the mobile app RingGo which was advertised on the parking lot as a method of payment quoting the location shown on the parking sign.

5. The Defendant received a Letter of Claim from the Claimant Solicitor on 18/09/2020, being this the first notification regarding this PCN received by the Defendant. The Defendant understands that a reason for not having received any previous notification is that he moved address recently before the alleged contravention took place, and despite having taken all reasonable steps to update all relevant documentation, due to many changes in personal circumstances such as change of employment and expecting a child, some documentation may have not updated as promptly as expected.

6. The Defendant acknowledged the Letter of Claim dated 18/09/20 and replied to it promptly on the 23/09/20 showing payment evidence of the parking fee. A reply was obtained on the 30/09/20 stating that the case was to be put on hold while the evidence was reviewed.

7. The PCN was issued due to an alleged breach of the terms and conditions when parking on 24051 BLUE ZONE D. Photographic evidence shows the vehicle LL68FVC turning from College Lane into the road between Lindop Building and Todd Building, which leads to both car parks Zone E and also leads to Zone D. There is no other road to enter to car park Zone E. There is no photographic evidence of the vehicle being parked at a space on Zone D.
__________________________________________________________________________________________________________

From there onwards is the same as the template, which I believe gives me more grounds of defence on every angle?

I'll call the CCBC to pay the fee as soon as they open and I'll send the email with this today. Is it better to send it on .doc or in PDF format?

nosferatu1001

Yes, the rest of ther template is unchanged, and you know it gives you lots of grounds of defence, because you have read it! 
You send the WS and draft defence, plus your exhibtis to support your WS - any documetns you have showing dates etc - as a PDF
You send the draft order as a docx so it can be edited