Marriott and Parking Eye Vs Me " Help needed for app to Set aside judgment

Prettypetty1993

I have not filed a defence yet , this is my next step. Which I will be sharing once I have completed for perusal and guidance .thanks 

Prettypetty1993

DRAFT ORDER

 

 

IT IS ORDERED that:

 

1. The default judgment dated xxxxx xxxxxx be set aside.

 

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 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 in any event.

 

6. That all enforcement be put on hold pending the outcome of the application.

-----------------------------------------

WITNESS STATEMENT
______________________________________________

 

1. I    am the defendant in this matter. This is my supporting statement to my application dated 12 .02.2020  requesting to:

a. Set aside the default judgment dated 21.01.20 as it was defectively served using an old address
b. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.
c. Order for the original claim to be set aside.

2. Default Judgment

2.1. I was the registered keeper of the vehicle at the time of the alleged breach.

2.2. I understand that the claimant obtained a default judgment against me as the defendant on 14. 7.20 . However, this default judgment has not been served at my current address  .  Therefore, I was not aware of the County Court Judgment until I checked  my credit rating score on the 12.02.21.

2.3. On learning of the County Court Judgment on 12.02.21, I immediately contacted County Court on the same day of 12.02.21 to find out details of the Default Judgement. It was only at this point that I discovered that Parking Eye was the claimant and that the judgment was regarding a parking charge notice. 

2.4. I understand that the judgment was served on  14. 07.20. However, I had moved to a new address on  12. 08. 19. In support of this I can provide confirmation of my signed tenancy agreement which shows my updated details. I currently  resided at this address and have been on the electoral roll for over 2 years. 

2.5. I was never able to challenge the original charge nor the judgment as I never received any correspondence from the claimant. 

2.6. At no point prior to 14.07.20 and no time after have I received  any contact from the claimant.

2.7 I acknowledge I promptly notified all my creditors and utilities of my change of residence within days of moving home. I did this well before the date of the alleged Breech 21. 01.20. 

2.8. The claimant did not make reasonable enquiries as to my current address  before pursuing the court order especially considering they had good reason to believe they did not hold my current contact details given the timescales of the alleged breach (21.01.20) and the filing of the judgment (14.07.20)  . 

2.9. 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. 

2.10.  Considering the claimant  received no response  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. At the time of the County Court Judgment, creditors and the credit agency and the electoral register each  had details of my current  residence. The Claimant failed to take reasonable steps to trace me by my credit file or electoral roll, at the time of  and before filing for the default judgment. This has led to the claim being incorrectly served to an old address and an irregular judgement. 

2.11. I believe the Claimant has behaved unreasonably in pursuing a claim against me 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.  Previous Prime Minister Theresa May had 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."

2.12. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use my  correct address when bringing the claim.

2.13. Considering the above I as the Defendant was unable to defend this claim properly. Therefore, I believe that the default judgment against me was irregular and I respectfully request it is set aside.

3. Order dismissing the Claim

3.1. I  further believe that the original Claim by the Claimant has no merit and should thus be dismissed. 

 

3.2. I , 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.

3.3.Mitigation

3.4.I make the claim  the breach did not  occur and that the driver was ill and incapacitated and unable to drive the car and sought support from the local hotel from their  premises. The Driver contacted the landowner and sought permission to enter the premises on  medical grounds until they were fit to drive. The driver was given consent  by the landowner to be parked on their premises . 

3.5.Lack of Standing by Claimant: 

3.6. 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.

 

3.7. No contract with the Claimant: 

3.8. 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 Parking Eye Ltd.

 

3.9. 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.

 

3.10. I am  unaware of how the third party Parking Eye Ltd. obtained the vehicles details. As I have  had no correspondence from the third party Parking Eye Ltd. 

 

3.11. If the Claimant has obtained details of the vehicle for which I, the Defendant is the Registered Keeper, and used those details to make a claim for a ‘Parking Charge Notice’, I 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. Further,  that the landowner had entered into an agreement  with the driver and provided consent on  sickness grounds . Parking on the Hotel Premises  was unavoidable and  is  reasonable mitigation to support the breech did not occur. 

 

3.12.Defective Service  

3.13. The Defendant has at no time tried to avoid paying for any known debt, and it is argued that the claimant did not take reasonable steps to trace and locate the driver. The defendant moved  homes on the 12. 08.19 and made timely representations to all creditors  and was on the electoral register. A simple credit file a simple trace would have provided my new address detail. Further, in the digital age email contact detail could have been easily sought,  given my unusual name and the availability of online technology.

3.14  It is submitted the Claimant should have taken those reasonable steps, and would have known or should have surmised that it was likely that the I the Defendant was not at the old address,  given the length of time from the alleged parking charge and the fact the Claimant was receiving no reply from the Defendant from 21.01.20 until 14.07.20 . It is submitted the claimant did not give  sufficient time to do due diligence on cursory checks prior to filing for a court judgment and that the claimant would have had been provided the opportunity to defend the alleged breach. This shows defective service under CPR13.2.

3.15. I understand that the Claimant is a  a Private Parking Company who used ANPR in order to issue “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

3.16. It would appear that the Claimant has obtained details of the vehicle for which I am 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. 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.

3.17. 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. 

3.18. I further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold myself as the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

3.19. If the Claimant has obtained details of the vehicle for which I am 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.

3.20. I submit that this is not a penalty charge notice but a private one based on contract law and therefore the Claimant must:

a) 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

b) set out the facts on which it is asserted that the claimant has a cause of action against this defendant, and

c) identify the 'relevant obligation' of the defendant to pay parking charges and the 'relevant land' on which the parking is said to have occurred

d) state whether the claim is in relation to a 'relevant contract' or in respect of an alleged trespass or other tort (as per the POFA 2012 Schedule 4)

e) disclose full particulars and a contract, in order to evidence a claim in law

3.21. On this basis I believe that the Claimant has not provided any reasonable cause of action and absence to 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 my  costs for application/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.

4. 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:

4.1 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

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

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

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

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

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

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

4.8. Evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a  £197 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).

4.9. 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

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

4.11.  In order to make informed decisions and statements in my defence as keeper of a vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.

4.12.  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.

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.

Prettypetty1993

nosferatu1001 said:

That wasnt what C-M asked; have you asked them to at least confirm you were OK to be on their site? If not DO SO

Yes!  I have asked them to confirm.  I have been emailing them and calling them numerous times to request ( demand) that they confirm permission was granted. 

nosferatu1001

That order is nonsense. You edited it and didn't realise your edit makes 2 apply regardless as it states the claimant pays no matter what
2) originally said that costs are to be reserved. 
Obviously the remainder are there so IF they discontinue you wont have a hearing for the reserved costs to be heard in, meaning you would potentially be out that cash. The point of the para is so that if that happens, you get your money. As it stands, no costs are being reserved, so it makes no sense to incldue them
So, have you filed these yet? Yes or No. 

Prettypetty1993

nosferatu1001 said:

That order is nonsense. You edited it and didn't realise your edit makes 2 apply regardless as it states the claimant pays no matter what
2) originally said that costs are to be reserved. 
Obviously the remainder are there so IF they discontinue you wont have a hearing for the reserved costs to be heard in, meaning you would potentially be out that cash. The point of the para is so that if that happens, you get your money. As it stands, no costs are being reserved, so it makes no sense to incldue them
So, have you filed these yet? Yes or No. 

yes . I have 

Prettypetty1993

I would like support with drafting my defence. I will draft that and submit here before I file, anything I should look at, its all very confusing. I would be grateful for advice on what to do and the right things to say and how to compose  and next steps . Thanks in advance. 

KeithP

Paragraph 5 of your draft order starts with...

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect...

Yet para 2 says...

2. The Claimant to pay the Defendant’s costs of this application to the sum of £255

Is that really what you want?

Le_Kirk

KeithP said:

Paragraph 5 of your draft order starts with...

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect...

Yet para 2 says...

2. The Claimant to pay the Defendant’s costs of this application to the sum of £255

Is that really what you want?

Already spotted by @nosferatu1001 couple of posts up board, hopefully the OP is on it.

Prettypetty1993

KeithP said:

Is that really what you want?

No. Ok, The order has been sent, Thanks for pointing out the issues, please let me know if there are any more and I will amend . I want to be proactive, what do I need to do now to either rectify , amend , and or address. Should I send a redraft to the court or move forward with the defence only?  

nosferatu1001

Just sort the defence. 
Newbies thread has a currenty defence that takes you 30 min to sort.