CEL CCJ Set Aside - Support Please!

redredelise

Hi All,
I have joined many other people in discovering a CCJ on my credit file whilst applying for a mortgage. 
It's from CEL from June 2019 with the PCN from August 2018.

Same old story -  it was from a 12 minute overstay in a car park for a pet store. NtK was sent to old address (V5 not updated). Subsequent correspondence all continued to be sent to the old address. Here I am now with a CCJ.

My partner and I both have cars. We both use each others cars. Neither of us have any idea who was driving at that time.

So, I have done lots and lots of reading on the huge amount of information available on this forum. I think I speak for many people when I say it's been invaluable.
Now, down to the nitty gritty of what I am needing some support with...

I am putting together my N244, Draft Order and Witness Statement. I will say a few things first then put the WS after for some comments if people are able?

I am going for mandatory set aside, as the judgment was served at the wrong address - however, wondering how this will fair with the fact that the V5 was not updated (driving licence was, and I am aware that @Coupon-mad has talked about GDPR and DVLA responsibility to update ALL addresses on their system).

So if mandatory set aside is not going to work with that in mind, then the judge will look at my promptness in applying for a set aside and whether there is a good chance of contesting the PCN.
So...

Main defence will be POFA/Keeper Liability. BUT, I have now received info from SAR from CEL and I am not completely convinced that they aren't POFA compliant.

I've spent a long time studying various sites, this forum, parkingcowboys, and the legislation itself, but am not sure if there is anywhere on the NtK PCN that doesn't comply.
I know that @Coupon-mad has said repeatedly that CEL don't have POFA compliant PCNs, but I'm unable to see it and will need to be very clear about it if I am to use this as a defence. So that is something I would like support with - how do they do not comply?

Another defence I wondered about was that the POPLA Annual report 2019 discussed the BPA Code of Conduct and 'grace periods'-  that there is a 'period of consideration' which can be up to ten minutes where a driver has the opportunity to drive into the car park, find the parking info, decide whether to accept the terms, and if not then drive back out again.

There is also another possible 'grace period' of a similar time period that allows for any hold up when drivers return to their vehicle afterwards. I have brought this up as the PCN has been given (as previously stated) with a 12 minute overstay - could this be allowed as a 'consideration period' and/or 'grace period'?

Below is my WS. I would be hugely grateful if anyone could look through it and give feedback. Also any thoughts and comments on the issues I have raised above.

redredelise

 

IN THE COUNTY COURT AT:County Court Business Centre

CLAIM No: xxxxxxx

BETWEEN:

 CIVIL ENFORCEMENT LIMITED(Claimant)

 -- and --

 xxxxxxxxxxx (Defendant)

 

 

______________________________________________

WITNESS STATEMENT

______________________________________________

 

 

I am xxxxxxxxxxx of xxxxxxxxxxxxxx and I am the defendant against whom this claim is made. The facts stated below are true to the best of my belief and my account has been prepared based upon my own knowledge. 

I make this Witness Statement in support of the application for an order that the judgment in this case to:

 

1.    Set aside the default judgment dated xxxxxxx as it was defectively served using a previous address for which I have not resided since April 2017.

2.    Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

3.    Order for the original claim to be dismissed.

 

            SET ASIDE THE DEFAULT JUDGMENT

 

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

 

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on xxxxxxx. I am aware that the Claimant is Civil Enforcement Limited, and that the assumed claim is in respect of an unpaid Parking Charge Notice from xxxxxxx at the car park for xxxxxxxxxxxx. I contest this charge for the reasons outlined in Part 2 of this defence. I also understand that this Claim was served at a previous address (xxxxxxxxxxxx) where I have not lived since April 2017 and not at my then current address (xxxxxxxxxxxxxx). Confirmation of my address at the time of the claim are in the form of a solicitor’s letter, NHS letter, pension letter, and bank statement, all from around the date the PCN was issued. See Exhibit A.

 

1.3. Since the claim form was not served at the correct address, I thus was not aware of the Default Judgement until xxxxxx

 

1.3.1. I discovered a CCJ was lodged onto my name on the xxxxxxxx following a telephone call from my mortgage broker who was organising a mortgage in principle for me to purchase a property. I immediately began contacting the relevant organisations to remedy the situation.

 

1.3.2.  xxxxxxxxx Registration with ‘Check My File’ (an online credit file company) to gather any information about the CCJ. It was visible on TransUnion’s credit report but very few details were available.

 

1.3.3. xxxxxxx Purchase of a search report from ‘Trust Online’ to see if there was any information regarding the CCJ. This gave the case reference number and the name of the court that dealt with the judgment.

 

1.3.4. xxxxxxxx Telephone call to County Court Business Centre. They explained that the CCJ was for an alleged parking penalty notice. It was served at a previous address. They advised to apply for a set aside and to contest the PCN via form N244. 

 

1.3.5. xxxxxxxx Email received from County Court Business Centre confirming points discussed in our telephone conversation.

 

1.3.6. xxxxxxx Telephone call to Pet Shop – manager not available.

 

1.3.7. xxxxxxxx Telephone call to Pet Shop – manager not available.

 

1.3.8. xxxxxxx Telephone call to Civil Enforcement Limited. Received no answer. Message left with contact details. Still no response after seven days. Noted some wording taken from their Privacy Policy on their website as follows, ‘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 you are still at the address provided to us by the DVLA before we issue a county court claim against you’.

 

1.3.9. xxxxxxx Visit to the car park to view any signage. There is no way of knowing if the signs currently placed are the same that were present the date of the alleged offence.

Email sent to xxxxxxx Council to ask if Civil Enforcement Limited had planning permission to place the signs on private land. xxxxxx mail response to confirm that planning permission was not required.

 

1.3.10.  xxxxxxx Work began on researching the process of how to fill in form N244 and to construct the relevant additional documents of a Draft Order and Witness Statement.I would like to bring to the court’s attention that I am not a lawyer or solicitor and so the research has taken some time. Work completed is done to the best of my ability.

 

1.3.11. xxxxxxxx Email to the Data Protection Officer at Civil Enforcement Limited to request a Subject Access Request and attached proof of ID and the registration number of the car concerned.

 

1.3.12. xxxxxxx Telephone call with manager at Pet Shop – he said he would have been happy to cancel the original PCN at the time but, as such a long time had passed, he would not be able to do that. We discussed that both my partner and I use the shop and so I was unsure of who the driver was at the time. He asked me to come to the shop where he would provide a letter of support for my defence in this case, explaining that both my partner and I were regular customers at the time and ask that the CCJ be set aside.

 

 

1.4. Above entails, as per Civil Procedure Rules 6.9 (3,4), that proceedings were not validly served because the Claimant was incorrect in assuming that this was my last known address and did not take reasonable steps to ascertain my current address, despite claiming on their website that they do (see 1.3.6.). This leads to no service; they were not entitled to judgment and the court must set aside the claim.

 

1.5. I submit that by the virtue of the Claimant sending the letters to my previous address, I was not afforded any method by which to appeal, nor any information about complaints procedures to the landowner (xxxxxxxxx). This omission prevented me from being able to get this charge cancelled by the landowner (xxxxxxxx). If I could have appealed to POPLA or had known about the charge and been able to contact the landowner (xxxxxxxx) who could deal with such complaints and cancel charges, I would have done so.

 

1.6. I have 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 I was not at the previous address, given the length of time from the alleged parking charge and the fact that the Claimant was receiving no reply from me.

 

1.7. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they were using my correct contact details. According to publicly available information, my circumstances are far from being unusual. 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. Theresa May had pledged to investigate the "abuseof” 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 individuals using incorrect addresses.

 

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

 

1.9. Considering all of the above, I was unable to defend this claim properly. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside.

 ____________________________________________________

 Part 2 - ORDER DISMISSING THE CLAIM

 

The Defendant has a real prospect of defending this claim because: -

 

2.1. I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand the Claimant to be a Private Parking Company that uses Automatic Number Plate Recognition 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.

2.2. It appears 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. 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.

 

2.3. Due to the length of time, I have little to no recollection of the day in question. Both my partner and I used the vehicle and were customers of xxxxxxx at the time. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car after over two and a half years have passed. 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 the registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

2.4. Research I have undertaken states that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue. As stated in 2.2., I have not ever received any previous documentation from the Claimant on this matter so await full disclosure of the PCN issued that I have requested via a Subject Access Request. If the PCN 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

2.5. 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.

2.6. 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 2012 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 £291 despite the POFA 2012 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, I ask the court of its own volition to strike out this claim and to order the Claimant to refund my 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.

2.8. 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 the vehicle.

 2.9. I have never received any previous court documentation from the Claimant in this matter and was never able to properly challenge the Claimant’s claim. Furthermore, I put the Claimant to strict proof that they did post such communications to my previous address, which was xxxxxxxxxx, without ever checking if it was the right address.

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

 

Statement of Truth:

 

I believe that the facts stated in this defence 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.

 

Full Name:    xxxxxxxxxxx  (Defendant)

                         

 

redredelise

The above WS was put together using a variety of different ones I read through on this forum, but I'm not entirely confident or happy with the wording and general flow of it all.
For me, the main issues with the WS are -
1. do I need to give more detail about the reason why it was not served at the correct address i.e. not updating my V5 but say I updated my DL?
2. should I include info re 'consideration/grace period'?
3. This was written pre-SAR so I hadn't seen the NtK PCN at that point. Now I have and am doubting the whole basis of my defence on Keeper Liability and POFA compliance, feeling that CEL have got that covered.
Please do fire any questions for other details that are needed in order to give better advice.
Huge thanks to all the people who work so hard on advising and supporting people on here.
It has been somewhat devastating to have to let go of what I thought was going to be a new home just because of a 12 min overstay in a car park, but the support available here was made that an easier pill to swallow.

SayNoToPCN

You have included a massive wall of test. Please don't! Give our eyes a help by using paragraphs, and be concise!

 am going for mandatory set aside, as the judgment was served at the wrong address"
- when eas the parking charge issued
- when did you move
- when was the claim ISSUED. The ccbc has this info. 

What matters here is they need to have a reason to suspect your address wasn't a good address for service. The longer the gap between pcn issue and the claim issue, the better for YOU 

SayNoToPCN

A witness statement supports the reasons for set aside

A defence sets aside the reasons you are not liable 

You MUST NOT mix up those two! Very different documents !

redredelise

SayNoToPCN said:

You have included a massive wall of test. Please don't! Give our eyes a help by using paragraphs, and be concise!

 am going for mandatory set aside, as the judgment was served at the wrong address"
- when eas the parking charge issued
- when did you move
- when was the claim ISSUED. The ccbc has this info. 

What matters here is they need to have a reason to suspect your address wasn't a good address for service. The longer the gap between pcn issue and the claim issue, the better for YOU 

Apologies for the wall of text.
It won't surprise you to know that this is my very first post and I haven't quite got to grips with presentation. 

PCN Issued August 2018
CCJ June 2019
Left old address April 2017. Was at several other temporary addresses then settled at current address January 2018

SayNoToPCN

So between august and June they never heard from you, so had no reason to believe that they'd been writing to the correct address for you. 

As such they were required to trace your addesss. 

I would say this fits mandatory set aside

additionally as the claim was never served - look up henrik77 and Jonnersh posts here! - the period to file a defence never expired and so the claimant was never entitled to ask for judgment in default (of ack or defence) . This means the judgment must be set aside, and costs should be awarded to you now. These costs should not be reserved to the claim 

redredelise

SayNoToPCN said:

A witness statement supports the reasons for set aside

A defence sets aside the reasons you are not liable 

You MUST NOT mix up those two! Very different documents !

I understood that after writing the WS to support the reasons for the set aside, you then needed to write some detail around how you plan to defend (if you want to contest and not pay the PCN) although not the full defence as that would come later in another hearing?

SayNoToPCN

I suggest you use the template defence. Takes a half hour
youre showing any other good reason. Cpr13.3. Include it in your pack as a DRAFT DEFENCE and you're not going to go wrong.  That way the WS stays as a WS. 

SayNoToPCN

You cannot say "I don't need a defence, I'm going to just pay" - that's credit cleansing, and courts are not fans of that 

redredelise

SayNoToPCN said:

I suggest you use the template defence. Takes a half hour
youre showing any other good reason. Cpr13.3. Include it in your pack as a DRAFT DEFENCE and you're not going to go wrong.  That way the WS stays as a WS. 

Great.
So discard all the stuff I wrote in Part 2 of the WS and replace with Draft Defence to attach separately.

SayNoToPCN said:

So between august and June they never heard from you, so had no reason to believe that they'd been writing to the correct address for you. 

As such they were required to trace your addesss. 

I would say this fits mandatory set aside

additionally as the claim was never served - look up henrik77 and Jonnersh posts here! - the period to file a defence never expired and so the claimant was never entitled to ask for judgment in default (of ack or defence) . This means the judgment must be set aside, and costs should be awarded to you now. These costs should not be reserved to the claim 

Thanks, I'll have another look through their posts.
Should I add that in my WS somewhere, that claimant was never entitled to ask for judgment in default/lack of defence as period to file a defence never expired?