CCJ Sent to old address - Napier Parking, BW Legal

ngwino88

Hi, I am very new to this so apologies if not explained well.

• I found out there was a CCJ (£264.74) in my name on 23 September 2020 after receiving a notification from my credit check provider stating there has been a change on my credit file. I noticed this CCJ to my shock. I googled how to get further information about what is going on.
• I was directed to contact the County Court Business Case who then explained the situation, it is in relation to a parking ticket from 2018 in Peterborough and the was entered on 14th January 2020. They informed me that all correspondence had been sent to an address in Nottingham which I have not lived in the last 2.5 years. I lived at the address between August 2016 - April 2018 I moved house in April 2018 - September 2019 and after this to Kent in October 2019. Therefore had not received any correspondence at all relating to this. I have aimed to keep my details as up to date as possible, driving licence, council tax, HMRC and it is unfortunate that I have not received any correspondence at all so only became aware of this matter today 23/09/2020. To date, I do not have any details at all about the matter. So for 2 years they did not here from me but proceeded with getting a CCJ.
• BW Legal are the people handling the matter and I called them to explain that I had not received any correspondence at all and they were quite dismissive and were pushing me to pay over the phone stating that it would look good if I paid. I asked for details to be shared with me about the claim etc so that I can be aware of the full matter. No details to date.
• Given the above circumstances I therefore did not have an opportunity to respond to any letters/notices as I have not lived at the Nottingham address for years now. I have therefore not had any opportunity to respond to any contact or to be heard or had an opportunity to defend myself when the court judgement was issued. 
• I also contacted the letting agency for the old address (where it is stated correspondence was sent) by telephone checking about any past correspondence in my name and they said that there was none that they were aware of and the tenants and them would have just returned to sender if so.
• I read the threads and NEWBIE posts but only came across them recently after having already submitted N244 on 23 Sept 2020. I wrote a witness statement but not having seen how to do one correctly and no Draft Order submitted with the N244 form.
• However, a 30 minute telephone hearing date was set for March 2021 and it stated that any supporting evidence and information including email and contact number can be sent to the local court. Is it too late to submit the draft order and more detailed witness statement?
• Also BW Legal sent me an email trying to settle things with consent but with me paying the CCJ £264.74 + £100 to submit the consent order. However, I had already paid £255 for without consent. What is the best actin going forward please, your guidance is very much appreciated. I have attached the Consent doc received from BW Legal and the email it came with.
• 
• .

D_P_Dance

You telephoned them?   Why on earth did you do that?  EVERYTHING on paper.  Have you read the newbies wrt to default CCJs?  Do so before you pay them a penny more.  Did you inform the DVLA about your change of address?  

Umkomaas

• Also BW Legal sent me an email trying to settle things with consent but with me paying the CCJ £264.74 + £100 to submit the consent order. However, I had already paid £255 for without consent. What is the best actin going forward please, your guidance is very much appreciated. I have attached the Consent doc received from BW Legal and the email it came with.

Don't do this as it will most certainly not repair the damage to your credit rating. 

Is it too late to submit the draft order and more detailed witness statement?

I don't see any reason why not to.   You might want to flash up both documents for critique before sending. Look at other drafts before doing so. There is 6-point draft order example in the NEWBIES FAQ sticky, second post.

Coupon-mad

• However, a 30 minute telephone hearing date was set for March 2021 and it stated that any supporting evidence and information including email and contact number can be sent to the local court. Is it too late to submit the draft order and more detailed witness statement?  I agree with Umkomaas, do it now and provide evidence that you were 'there to be found' and that the parking firms failed to take any steps (copy from the two CCJ set aside examples in the NEWBIES thread).  Also a Draft Order as a WORD DOC for the Judge to edit (they like that!) and your draft defence, based on the TEMPLATE DEFENCE (yes you can do a draft defence even for a PCN you know nothing about so don't reply saying that you can't...please...!).
• Also BW Legal sent me an email trying to settle things with consent but with me paying the CCJ £264.74 + £100 to submit the consent order. However, I had already paid £255 for without consent.  Well that is a !!!!!! offer and you can ignore it.  You have good grounds to achieve a set aside because their client couldn't be arsed to get your correct address before serving a claim defectively!  And you will have good prospects of defence because most PPC cases are eminently winnable!

ngwino88

@Coupon-mad , @Umkomaas and @D_P_Dance Thank you so much for such quick feedback and the guidance I will work on the draft order and witness statement as well as the defence and share on here before emailing over asap to the local court.

ngwino88

D_P_Dance said:

You telephoned them?   Why on earth did you do that?  EVERYTHING on paper.  Have you read the newbies wrt to default CCJs?  Do so before you pay them a penny more.  

 @D_P_Dance   I know, it was my first time experiencing this and I naively I thought I could explain that it was sent to the wrong address but soon realised they did not care about that and kept pushing to pay. I have read the NEWBIES wrt yes, very much, lots of info to take in but I just wanted to get clarity on a few things. I will definitely not be paying them as everyone has advised.

"Did you inform the DVLA about your change of address?"   I updated my driving licence yes and HMRC and other records but V5 still trying to find out when I did it through obtaining a SAR from DVLA as I don't have the car anymore, sold it in September 2019.

ngwino88

Coupon-mad said:

• However, a 30 minute telephone hearing date was set for March 2021 and it stated that any supporting evidence and information including email and contact number can be sent to the local court. Is it too late to submit the draft order and more detailed witness statement?  I agree with Umkomaas, do it now and provide evidence that you were 'there to be found' and that the parking firms failed to take any steps (copy from the two CCJ set aside examples in the NEWBIES thread).  Also a Draft Order as a WORD DOC for the Judge to edit (they like that!) and your draft defence, based on the TEMPLATE DEFENCE (yes you can do a draft defence even for a PCN you know nothing about so don't reply saying that you can't...please...!).
• Also BW Legal sent me an email trying to settle things with consent but with me paying the CCJ £264.74 + £100 to submit the consent order. However, I had already paid £255 for without consent.  Well that is a !!!!!! offer and you can ignore it.  You have good grounds to achieve a set aside because their client couldn't be arsed to get your correct address before serving a claim defectively!  And you will have good prospects of defence because most PPC cases are eminently winnable!

I will do as advised and share here as soon as I can. Thank you!

ngwino88

Hi all,

Below is my draft order. I had a look at other CCJ related threads and info to put this together. Please let me know if there is anything not required or any changes as I tried to include as much of what I have seen from examples and feedback.

Draft Order

Hearing details:

[Date at [Time]

At the County Court at Reading, [Address details]

An order (draft attached) that the judgment dated 14/01/2020 be set aside because pursuant to CPR 13.2 (a) in the case of a judgment in default of a defense, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied.

Also, allow the defendant to file a defense in the case. The Defendant seeks the order to set aside because she was unaware of the proceedings. The Claimant served proceedings at an address not used by the Defendant since 2018.

DRAFT ORDER

IN THE COUNTY COURT AT READING (Claim Number – XXXXXXX)

NAPIER PARKING LIMITED (Claimant), Ref XXXXXXX

And

MS XXXXXX XXXXX (Defendant)

District Judge

UPON reading the Defendant's application dated 23 September 2020 and the attached witness statement of XXXXX XXX (Defendant) dated 24th January 2021.

IT IS ORDERED that:

1. The default judgment dated 14.01.2020 be set aside as it was not properly served at my current address.
2. The Claimant to pay the Defendant’s costs of this application to the sum of £255

3. Unless the Claimant serves a copy of the claim form on the Defendant by 4pm on XX/XX/XX 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 defense by 4pm on XX/XX/XX.
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. All enforcement be put on hold pending the outcome of the application.

Even if the court is not satisfied that my case meets the criteria relating to a mandatory set aside due to defective service (13.2), I will say that I also meet the criteria for the CCJ to be set aside on the grounds of 13.3:
(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.
(2) In considering whether to set aside or vary a 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.

Le_Kirk

That is a standard six-point draft order.  When you send it with your application and witness statement, it needs to be in Word, so the judge can edit it, so saving him/her time.

ngwino88

@Le_Kirk thank you.

WITNESS STATEMENT

I am [defendant name XXX] and I am the defendant in this matter. This is my supporting statement to my application dated 23 September 2020 requesting to:

a. Set aside the default judgment dated 14 January 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.

DEFAULT JUDGMENT

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

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 14 January 2020. I am aware that the Claimant is Napier Parking Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice from 22 September 2018 at a car park in Peterborough. I contest this charge for the reasons outlined in the attached draft defense.

1.3. I learnt of the existence of this claim on 23 September 2020 when I received an email from a credit report update subscription, as found in Schedule (X), that there was a new change in my Credit File after being refused credit.

1.4. The claim form was not served at my current address and instead was served at MY OLD ADDRESS (address, Nottingham XXX) and not served at my current address at the time (address XXXXX Stamford) where I had moved in April 2018. Confirmation of this will be provided at any set aside hearing, in the form of emails acknowledgement of change of address from different sources as well as attached tenancy agreements and utility bills Schedule (X). I thus was not aware of the Default Judgement until 23 September 2020 following a notification of an automated credit report update.

1.5. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant, myself Amanda, should be taken into consideration on the basis that;
1.5.1 I discovered a CCJ was lodged onto my credit file on the 23rd of September 2020.
1.5.2 On that same day the 23rd of September I contacted the County Court Business Centre to obtain relevant information relating to this default judgement and to let them know that I had not received the parking ticket, notices and other documents related to this; Schedule (X). I also sought advice from Citizens Advice bureau as this was a new experience for me and I wanted to ensure I carried out the correct steps.

1.5.3. My Driving licence and other records were updated with my new address however, I am uncertain as to whether my V5C was up-to-date with my new address when the PCN was issued (I have as a result contacted DVLA with a Subject Access Request). However, my V5C was updated to the new address I was living, by September as I had a new car and new V5C when the CCJ had been issued. I also received other correspondence relating to the vehicle that is related to this from other organisations, to my address at that time then, but not anything related to this CCJ (see evidence attached). The person I spoke to from the County Court Business Centre explained to me the process to set aside the CCJ and sent me the relevant information through email.

1.5.4 Although all my details had been changed to my address at that time, including my driving licence, I may have overlooked my V5C and was not aware (assuming change of address on Driving License will hold good for the vehicle as well). This serves as further evidence that I acted in good faith and have not attempted to avoid any debt or contact. [See EVIDENCE X].

1.5.5 On the same day I found out about the CCJ, 23rd September 2020, I willfully filled out the N244 form, wrote up my witness statement and submitted my case in order to set-aside this judgement and fairly present my case.

1.5.5 I have never received any previous documentation from the Claimant in this matter and I was never able to properly challenge the Claimant’s claim. Further I put the Claimant to strict proof that they did post such communications to the Defendant’s current address.

1.5.6 I have never received any correspondence and at no point prior to 23 September 2020 did I have any contact with the Claimant.

1.6. 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.

1.7. 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 I the Defendant no longer resides. The Claimant did not take reasonable steps to ascertain the address of my current residence or place of business despite having some 16 months to establish an address, therefore having good reason to believe they did not hold my current contact details. At the time of the County Court Judgment (January 2020), driving license, V5C logbook and HMRC records were registered at my new address so I was there to be found by a simple trace. [See EVIDENCE X]. 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 and that simple searches could have provided them with the correct address. This has led to the claim being incorrectly served to an old address and an irregular judgement. I was not afforded any method by which to appeal, nor any opportunity to get this charge cancelled, which I would have done was I aware of the charge.

1.8. 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 1.4 above.

1.9. 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.

2. Order dismissing the Claim

2.1 On discovering this CCJ and after promptly contacting the County Court Business Centre on the 23rd of September 2020 to find out details of the Default Judgement, I was informed that the CCJ was related to a PCN from September 2018 in a car park in Peterborough. No further details were provided or available as informed by the advisor I spoke to.

2.2. The address on the details supposedly sent to me, as provided to me by BW Legal and County Court Business Centre, is [old address XXXX]. I have moved out of that address from April 2018. From April 2018 to October 2019, I have resided at [address] then October 2019 to September 2020 to [address] due to work. I moved to my now current address at [address XXX] on the 25th September 2020 after I got married. In support of me living at the addresses, I can provide a copies of my old driving licences, insurance forms, bank statements, tenancy agreements to which they were posted and pay slips. See Exhibit XX.

2.3 The Defendant understands that the Claimant is a Parking Company which seeks to claim for ‘Parking Charge Notices’ which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

2.4 If the Claimant has obtained details of the vehicle for which I was the Registered Keeper, and used those details to make a claim for a ‘Parking Charge Notice’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

2.5 The Defendant has at no time tried to avoid paying for any known debt, and was at all times there to be found by a simple trace, a phone call or email. It is submitted that the Claimant should have taken those reasonable steps, and would have known or should have surmised that it was likely that the Defendant was not at the old address, given the length of time from the alleged parking charge and the fact that the Claimant was receiving no reply from the Defendant.

2.6. It appears that the Claimant Napier Parking Ltd has obtained details of the vehicle for which I was the Registered Keeper and used those details to make a claim for a ‘Parking Charge Notice’. Any Notice to Keeper served by the Claimant must comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. This includes the requirement to issue the Notice to Keeper within 14 days of the alleged incident. If the Claimant has not complied with the requirements of the Act they cannot claim this charge against me as the Registered Keeper in any case and where said keeper is unable to identify the driver. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

2.7 If the Notice to Keeper was not issued within 14 days, then the Claimant is required to prove who the driver of the vehicle was at the time of the alleged incident. I submit that the Claimant cannot provide such evidence to prove the driver of the vehicle they claim was involved in the alleged incident.

2.8 As stated at 2.6, I have not ever received any previous documentation from the Claimant about this matter so await full disclosure of the Penalty Charge Notice issued that I have requested via a Subject Access Request (please see EVIDENCE X). If the Parking Charge Notice in this matter did not include ‘Protection of Freedoms Act 2012’ wording, the Claimant cannot hold myself as the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

2.9 Additionally, due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car after over 16 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

2.10 For the Claimant to have obliged the Defendant to provide the drivers details at the time of said breach the Claimant would be required to apply for a ‘Norwich Pharmacal Order’, the Defendant is not aware of any such order being made upon him.

2.11 Furthermore, given the time delay of approximately more than 16 months from the alleged breach of contract, it is unreasonable to expect the Defendant to have a record of who was driving the vehicle at the time of the offence.

2.12 The Defendant further submits that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.12.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car parking street in question and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.

2.12.2. No contract with the Claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to Civil Enforcement Ltd.

2.13 On this basis the Defendant believes that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

2.14 Alternatively, if the Claimant disagrees with the above, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least all of the following information:

2.14.1. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge

2.14.2. A copy of any contract it is alleged was in place (e.g. copies of signage)

2.14.3. How any contract was concluded (if by performance, then copies of signage maps in place at the time)

2.14.4. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper

2.14.5. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

2.14.6. If charges over and above the initial charge are being claimed, the basis on which this is being claimed

2.14.7. If Interest charges are being claimed, the basis on which this is being claimed.

2.14.8. Evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to an attempt at increase 'recovery' despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed).

2.14.9. Show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant

2.15. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

2.16. If required to defend at a further hearing, I will require all copies of paperwork, letters and other documentation including pictures of all signage from the Claimant in order to make informed decisions and statements in a comprehensive defence as keeper of a vehicle.

 

 

ngwino88

2.17 The Defendant has never received any previous court documentation from the Claimant in this matter and was never able to properly challenge the Claimant’s claim. Furthermore, the Defendant puts the Claimant to strict proof that they did post such communications to the Defendant’s old address, which was XXX XXXXX, without ever checking if it was the right address.

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

2.19. On this basis I believe that the Claimant has not provided any reasonable cause of action and absent the above being produced in short order, I ask the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs for attending, namely the £255 Court fee in bringing this set aside case, despite not being shown to be liable for any parking charge at all.

The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

 

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.