Please help...CCJ could cost me >£10,000 and I need some advice

Langton

Hi all - quick back story:

• In 2015 I move from OLD ADDRESS to NEW ADDRESS, and have ROYAL MAIL FORWADING until March 2018
• On 15th Dev 2017 I parked in a KFC car park I thought was free. Turns out it is free, but only for 75 minutes
• On 25th September 2018 I am served a CCJ (Referencing an offence on on 17th Dec 2017, two days after the actual parking took place) unbeknown to me as no letters have reached me, and for some reason Virgin approved my mortgage
• In 2018 (exact date not yet known) I update my log book to the new (correct) address
• In 2021 I reserve a new house and try to get a mortgage with the current lender to enable the exchange of contracts. This fails, and I notice I have a CCJ. To get a mortgage with another lender costs nearly £10,000 in early exit fees.
• I paid the CCJ amount to potentially enable us to re-mortgage with our existing lender and not have to pay the exit fees, this was after financial and legal advice.
• I exchange in 42 days from the house reservation, which isn't going to happen now, but I'm hoping I can get the case set aside.

Below is the draft statement using some of the information from other threads. Is this sufficient? Are there any experts here who would recommend adding anything? FYI my local MP is actually Robert Buckland Minister of Justice and I aim to discuss it with him also.

IN THE COUNTY COURT AT: County Court Business Centre

CIVIL ENFORCEMENT LIMITED (Claimant)

And

MR xxxxxxx(Defendant)


CLAIM No: xxxxxxx


IT IS ORDERED that:

1. The default judgment dated 25/09/2018 be set aside.

2. Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out, and charges of £347 are returned to the Defendant.

3. 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 £347 paid to satisfy the CCJ plus the Defendant's costs for attending the hearing.

4. All enforcement be put on hold pending the outcome of the application.



WITNESS STATEMENT:

I am xxxxxxx and am the defendant in the matter.

This is my Statement in support of my application dated xxx [LCVG1] to:

- Set aside the Judgement dated 25/09/2028 of Northampton County Court case number xxxxxxx on the basis that:

1.    It was not properly served at the Defendants current address

2.    The Defendant made reasonable attempts to ensure any correspondence to the old address in their name was forwarded to them

3.    There is no reasonable proof of the offence on the date given
 

- Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
- Order for the Claimant to pay the Defendant £347 as reimbursement for payment made to satisfy the CCJ under the defendants exceptional circumstances;
- Order for the original claim to be dismissed on the basis that the Defendant has a reasonable defence; or to be re-heard at a new hearing.


1. Set Aside Default Judgement

1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 17/12/2017. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until a check on my credit file uncovered it on 11/03/2021 while trying to obtain a mortgage in order to exchange contracts for a new house. I understand that this Judgement was served at an OLD ADDRESS (xxxxxxx).

1.2. At the time of the County Court Judgement, I was on the electoral roll at a new address, and was registered at a new address with the DVLA and with HMRC. As Civil Enforcement Ltd had received no correspondence from me at any point, I believe they had reasonable cause to question whether they were using an accurate address over year after the incident occurred and that simple searches could have provided them with the correct address. Their website clearly states:

“In circumstances where we have not received any response from you to our PCN or debt recovery correspondence and in line with the latest BPA Code of Practice, we will undertake a trace to confirm that you are still at the address provided to us by the DVLA before we issue a county court claim against you.”

1.3. [LCVG2] I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendants current and correct contact details. 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. This is a topical issue: I note that the former Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent. He added:

"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."

Confirmation of this will be provided at the set aside hearing, in the form of utility bills and a Council Tax bill from Swindon Council. 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. 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.

1.4. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendants current address when bringing the claim.

1.5. Considering the above I was unable to fully defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

I have a real prospect of defending this claim because:-[LCVG3] 

2.1 On discovering this CCJ, I promptly contacted the County Court Business Centre on the Wednesday 11th March 2021 to find out details of the Default Judgement. The court papers contain details of the PCN, the Vehicle registration, the date of the offence, and that it pertains to Civil Enforcement Limited. The Defendant was forced into paying this full amount, as a recent mortgage application to enable the exchange of contracts for a new house was rejected on the basis a CCJ is present on the Defendants Credit File. Upon independent financial and legal advice, it was recommended the Defendant pay the claim amount in order for the mortgage application to be reassessed once the CCJ was marked as satisfied. The Defendant did not hesitate in paying the full claim amount due to the Defendants personal and financial circumstances with trying to exchange on a new house, which has a limited window to exchange contracts.

2.2 At the date of the original claim form dated within the CCJ as 17th December 2017, the Defendant had Royal Mail Redirection in place forwarding all mail for xxxxxxx from OLD ADDRESS to the address of the parents of the Defendant. No letters regarding the claim were received to this address.

2.3. The defendant has strong reasons to believe that the date of the offence is not accurate, and so the validity of such an offence is called into question. The defendant has tried to contact Civil Enforcement Limited through multiple channels including by phone and by email, but has not been able to gain any proof of the offence on the 17th December 2017.

2.3. I understand Civil Enforcement Ltd to be a Private Parking Company that uses ANPR in order to issue Parking Charge Notices. Any Notice to Keeper served by the Claimant would have needed to 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.

2.4. 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. The vehicle to which I am the Registered Keeper was at the time insured to be driven by two adults. I submit that the Claimant cannot provide such evidence of the identity of the driver.

2.5. 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 the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

2.6. If the Claimant has obtained details of the vehicle for which the Defendant is 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.

2.7. 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
f) evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a brazen attempt at triple 'recovery' reaching over £300 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).

2.7. 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, the Defendant asks 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 £255.00 Court fee in bringing this set aside case, plus the CCJ paid amount of £347.00, which was paid out of fear for Defendants personal circumstances despite not being shown to be liable for any parking charge at all.

2.8. If required to defend at a further hearing, the Defendant 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.

Signed

KeithP

Your Statement of Truth is out of date.
Google Statement of Truth April 2020 for an up to date version.

nosferatu1001

What date, precisely, did you find out about the CCJ?
When you called the CCBC to get the full claim form details, to which address was it sent? Was date was the claim ISSUED, as this matters a lot!
I presume you are going to file underCPR13.2 AND 13.3?

Le_Kirk

You need a Six-point draft order (which is supplied in Word format for the judge to edit it)  Search the forum for "six-point draft order".

Langton

nosferatu1001 said:

What date, precisely, did you find out about the CCJ?
When you called the CCBC to get the full claim form details, to which address was it sent? Was date was the claim ISSUED, as this matters a lot!
I presume you are going to file underCPR13.2 AND 13.3?

10/3 - I find out about CCJ after running credit check
11/3 - I call CCBC to find out why I have a CCJ and how to pay it off
11/3 - I contact CEL via automated pay phone line and pay the PCN of £347
The claim was sent to my old address, even though i had royal mail forwarding on that address at the time the claim was issued.
I parked in the car park on the 15th Dec 2017, but the date of the claim on the CCJ is the 17th Dec 2017.
What do you mean by CPR13.2 AND 13.3? I have a form from the courts (n244-eng.pdf) to complete and file.

Langton

Le_Kirk said:

You need a Six-point draft order (which is supplied in Word format for the judge to edit it)  Search the forum for "six-point draft order".

Thank you for your response.
Looking at the forum i found you posted this recently: 

1. The default Judgement dated DD/MM/YYYY 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 on XX/XX/2021

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.

Questions I have is:
1. how will the judge edit it? Will they just put in the correct dates? When will they do that? How do I send it to them?
2. I already paid the fine, even though I disagree with it, because I was advised to do so in order to enable us to exchange contracts on a house in 42 days (with an un-satisfied CCJ, our lender will outright reject it). Can i add this into the 6 point order above somehow?

Le_Kirk

You supply it as a Word document and the judge uses Word to edit it.  Just leave the date of the judgment and leave the other dates blank.  Did you pay the fine BEFORE the date that the judgment stated?  If not, the CCJ will only be marked as satisfied.  You leave the draft order as is and include anything else in your witness statement, however, be warned judges do not like credit cleansing!  Other questions about set-asides are answered in the NEWBIE sticky and by searching for threads about set-asides.  One good source of advice is to search for posts by @henrik777.

nosferatu1001

I asked then the claim was issued. Not when judgment was given. You want the former.

If you are asking about CPR13.2 and 13.3 you have 
a) failed to read the newbies thread
b) failed ot try googling them
In short, they are the grounds under which a court is required or allowed to set aside judgment As such, you havew to understand both. 

Johnersh

To quote Handforth Parish Council:  "Read the standing orders Court rules.  Read them and understand them!!"
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13