CCj without knowledge parking eye

rosemorton95

So to be clear as well as 1. the Draft order (done) 2. WS with order dismissing the claim (done, but probably too long 2000words), I will also need 3. PE draft defence after I get a set aside hearing, but I don't need to send it now with the N244? It seems a lot of what I have said in the order to dismissing the claim is what I would say in the defence because I wanted to show I can reasonably fight the original claim.

Coupon-mad

That's true.  You should have the bones of a draft defence 'in your back pocket' so to speak, to refer to if the Judge is wavering about whether you have good prospects of defending the claim if the CCJ is set aside.

rosemorton95

Thanks I think I have confused myself as I have done so much reading and a lot of people have said to send a draft order, WS and draft defence all together with the N244 but I only have the first two. I thought I understood but now the "order dismissing the claim" has confused me.  I am going to post everything I have now as I hope to sent it off tomorrow. Not going to ask that anyone reads it all, but just wondering if I can just send this and nothing else for now. Or could I take out the "order dismissing the claim" onwards and make that the defense with the template in newbies for PE

DRAFT ORDER
IN THE COUNTY COURT AT: xxxxx
CLAIM No: xxxxxx
BETWEEN:
PARKING EYE LIMITED (Claimant)
-- and --
xxxxxxxxxDefendant)
______________________________________________
DRAFT ORDER
______________________________________________

IT IS ORDERED THAT:

1. The default judgment dated on xxxxxxxx 2020 be set aside.
2. Costs to be reserved.
3. Unless the Claimant serves a copy of the claim form on the Defendant by 4pm on XX/XX/21 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 following 14 days on XX/XX/21.
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 cost for attending the hearing.
6. That all enforcement be put on hold pending the outcome of the application.

rosemorton95

WITNESS STATEMENT
IN THE COUNTY COURT AT: xxxxxx CCBC
CLAIM No: xxxxxx
BETWEEN:
PARKINGEYE LIMITED (Claimant)
-- and --
xxxxxxxxx (Defendant)
______________________________________________
WITNESS STATEMENT
______________________________________________
1. I am xxxxxx and I am the defendant in this matter. The facts stated below are true to the best of my belief and my account has been prepared based upon my own knowledge. This is my supporting statement to my application dated xxxx 2021 requesting to:
A: Set aside the default judgment dated xxxxx 2020 as it was defectively served using an old address and I have proof of payment from the car park on the date in question, xxxxxx 2019.

B. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee and any costs incurred by attending any subsequent hearing.
C. Order for the original claim to be dismissed

2. Default Judgment

2.1 I understand that the claimant obtained a default judgment against me as the defendant on xxxxx 2020. The default judgment was not served at my current address it was instead sent to an old address. Therefore, I was not aware of the County Court Judgment from xxxxxCounty Court until I created an Experian account in order view my credit rating score on xxxxx 2021. 

2.2 Upon learning of the County Court Judgment on xxxxx 2021, I immediately contacted xxxxxCounty Court the next working day on xxxx February 2021 to find out details. It was only at this point that I discovered that ParkingEye Ltd. was the claimant, and that the judgment was regarding a parking charge notice for £197 relating to allegedly parking without a valid ticket in a car park in xxxx City Centre on 8 August 2019, despite the fact that I paid for my stay on this day in full on the parking app, see EVIDENCE A.  I paid for an overnight stay, I can see on my app receipt, many people won POPLA appeals against this car park because the signage is unclear and the overnight rules are unclear. I can see I paid until 8am the following day. Then at 7.47 I paid again for day parking, 13 mins early to ensure I would avoid a fine, ironically. Then I left within the 5 hour stay allowed for the following day . However, because I paid 13 mins early the following day they are saying I overstayed by 13mins because my time in the car park was 7.47 until 1pm,  but actually I had a previous ticket that was still valid until 8am and I simply topped this up with another so I did not overstay as far as I know. 

 

2.3 xxxxxx Country Court informed me that the claim form for this judgment was served at an old address, xxxxxxx on xxxxxxx2019. The address that was used for service was an address that I had not lived at in over 5 months since my tenancy agreement expired in June 2019. In support of this I have provided confirmation of the end of tenancy at this old address, see EVIDENCE B. Upon moving, I also notified the DVLA to update my photocard licence in xxxx2019, in addition to notifying Yorkshire water, TV licencing, xxx city council and Spark energy of the fact I was leaving the address and provided them with my forwarding address. See EVIDENCE C. Some of these details I have requested by SAR and I am still waiting for.

2.4 I immediately contacted ParkingEye Ltd after learning they were the claimant. They informed me that the parking notice and 4 letters of correspondence were all sent to a previous address, xxxxxxx I have not ever received any documentation from the Claimant in this matter and I thus was never aware of it until now or able to challenge the Claimant’s claim. I was not even aware that there was a parking notice being issued against me as I paid in full for my parking via the parking app on the day in question and no notice was left on the car as it is an ANPR car park, see EVIDENCE A. 

2.6 I suggest the claimant did not make reasonable enquiries as to my current address before pursuing the court order and that they had good reason to believe they did not hold my current contact details as I had not responded to the parking notice and the 4 subsequent letters sent by ParkingEye Ltd or to the claim. As stated in the Civil Procedure Rules CPR 6.9(3) where a claimant has reason to believe that the address of the defendant referred is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business. At the time when ParkingEye Ltd served the claim to an old address on xxxxx 2019, I had updated my driving record with the DVLA, to my correct address but this was not used for service as they did not update all my data and records. I believe the failure of the DVLA to update all records of a data subject when they move is a GDPR breach and as such I have raised a complaint/data concern with the Information Commissioner. It is well known that DVLA data is soon out of date or doesn't match the address of the data subject, and as the claimant can only request an address once from the DVLA, parking firms are required to take every step to find the proposed Defendant before filing the claim, such as performing a TRACE. The claimant took no steps to ensure this was my current address and suitable for service despite no response from myself.

 

2.7 At the time of the County Court Judgment in on the xxxxxxx 2020, my council tax, driving license and insurance, TV licence, bank statements and utilities were all registered at a new address, so I was there to be found by a simple TRACE see EVIDENCE D. 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.

2.8 I believe the Claimant has behaved unreasonably in pursuing a claim against me when the parking was paid for and without ensuring they held my correct contact details.  According to publicly available information, my circumstances are far from being unique. The Claimant appears to have consistently failed to reasonably pursue the claim, as has been referred to as the practice of ‘Credit Clamping’, which several members of the Government have strongly condemned. Former Prime Minister Theresa May pledged to investigate the ‘abuse’ of the CCJ system, while The Rt Hon Sir Oliver Heald QC MP has been quoted as saying on 23rd December 2016: "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. 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." and "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."

2.9. 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 and therefore, have not adhered to CPR 6.9 (3) and failed to show due diligence by using an address at which the defendant no longer resided.

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

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

 

4. Order dismissing the claim

 

4.1  The parking for the date in question, xxxxxx 2019, was paid via the parking app at xxxxx. Evidence of this payment has also been given to ParkingEye Ltd  using the details from the parking app See evidence C. I have contacted the claimant by email, and asked what the reason for the parking ticket was, given that payment was received. I have also asked for any evidence showing the time my car left the car park. When ParkingEye Ltd responded they failed to address these questions and provide this information. I have still not received any of this information pertaining to the claim but the parking was paid for.

 

4.2 I still have not received the original parking notice or notice to keeper. I have contacted ParkingEye Ltd and requested this, but this request was ignored when they responded to my email. I am thus unaware of why it was issued or how much I owed originally. I contend that the claimant must show that the original notice to keeper is compliant with the protection of freedoms act 2012 (POFA) as I have no such evidence.

 

4.3 The BPA CoP requires written authorisation from the landowner before parking charges are pursued.  As of yet, ParkingEye ltd has not provided any proof that they had the landowners consent to pursue parking charges. I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence. I require an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100 and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge.

 

 

4.4 The ANPR system used by ParkingEye ltd is not accurate of reliable and the signs do not state how the operator uses the data collected by ANPR. As the claimant did not notify the driver how the data will be used is this is a ‘misleading omission’ of a material fact and  “failure to identify its commercial intent” contrary to the BPA CoP and consumer law. Vital information was omitted from the signs or illegible due to the font size such as stating that the cameras are not for security (as one would think from seeing a camera icon) but there to calculate total stay. The vital information that the driver’s arrival time is calculated from the moment the car enters the park was also omitted.

 

4.5 It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is ‘appropriate’ before issuing a PCN. The payment made for 5 hours would in fact be very easy to identify if this operator had carried out the necessary checks required in the BPA CoP, so I suggest these checks were not made and that the operator has contravened the requirements of professional diligence; a duty of consumer-facing service providers. I put this operator to strict proof that these checks were made (showing full records from that day including the VRN list of payments around the time in question) and to explain why a charge was issued when they would indisputably have identified the matching 5 hour payment. The operator would have been in no doubt that the car parking was paid for, had they made the required checks

 

4.6 The BPA code of practise CoP makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken. The CoP states that you should allow the driver a reasonable “grace period” in which to decide if they are going to stay or go. The grace period at the end should be a minimum of 10 minutes, but not maximum. If the claimant is alleging that I overstayed, which they are yet to communicate, they must provide information and evidence of when my car left the car park on the 8 August and ensure the grace period has been allowed.

 

4.7 The signage in the Aire street car park is inadequate, faded, unclear and there is also graffiti on the parking signs see evidence E. In particular, the over night parking rules are unclear. The car park site is not well lit as it relies on near by street lights with no other lighting in the car park, this is problematic when paying for overnight parking. The terms and conditions of the signs are also hard to read as the font is extremely small as shown at the bottom of the picture. The signs are either low to the ground just inches from the floor or around 8ft in the air, coupled with the small font and poor lighting this makes them hard to read and understand.

 

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.

 

nosferatu1001

 An order dismissing the claim...would dismiss the claim entirely
A usual order is to set asidfe the judgment only. The claim is then free to run as if the judgment had never taken place. 

rosemorton95

@nosferatu1001 thanks for clearing that up I have just managed to get through to pay, apparently finance was down yesterday and barclays or something. So I should remove the order to dismiss the claim? And maybe add a few brief sentences at the end of the WS to state how I would defend myself against the original claim to show Id have a reasonable chance, and maybe put what was in the order to dismiss the claim in the defence should I need it later? Thanks so much

nosferatu1001

That's not how orders work. You don't just provide them later on. Think about what the word "Order" means here - it is what a Court ORDERS ...
You are providing a single draft order to the court. Usually this is the 6 point draft order which sets aside judgment, which you have above. 
Frankly i'd just file a draft defence now, but that's because I don't see how it hurts. 
Within your WS I wouldnt call section 4 an order dismissing the claim - as it isnt an order. I dont know why that heading is in the examples previously, as it doesnt make sense to me. 

rosemorton95

OK thanks will make that change. I was under the impression I could fine a defence later as I am eager to get this sent off now.
I finally heard from PE regarding the SAR and they gave me a breakdown of the claim. They said 100 charge plus 25 court fee plus 50 solicitors fees and 22 other fees. I remember people saying @Coupon-mad@Umkomaas

 
PE do not use solicitors as they have their own legal team. Does anyone know if I can mention this, as everything I read said PE do not do this?

nosferatu1001

Yes, you can file a draft defence later. I did not say you could not do so. I just dont see why not to file one. 
Youre never going to get the court to reduce that £50 charge. Forget it. 

henrik777

2.2 Is  definitely a "good reason" and quite possibly an entire defence.