CEL CCJ Set Aside - Support Please!

redredelise

That's good to know.

I'll go ahead as planned then deal with the proper defence later!

SayNoToPCN

The "draft defence" you are so worried about is written for you and is the template you can find on page 1!
You spend apprx 10 minutes changing para 2 and 3, having read recent defences so we dont have to correct the same mistakes  , so it gives a brief background. Note the word brief. 

That gives you 4 or 5 defence arguments prewritten. 

redredelise

Would it be okay to put my draft defence up for comments?
I'm really not feeling happy with it.
The bit I've written sounds pretty rubbish to me then goes on with @Coupon-mad s very legal based template!

I have spent sooo much time looking through threads too but I'm feeling like I'm not reaching the most relevant ones to my situation.
Perhaps I need to look at my search skills but I've been using all the right terms - ccj, cel, set aside, defence etc.
Arggghhh!

redredelise

Here is the draft defence to be attached to the N244.

Changes have been made to the template at 2. and 3. but the remainder has been left (this is to save you from reading through it all).

I have struggled to follow some of the rest of the template and am concerned that there are sections that refer to poor signage which is something I can't comment on as I don't remember (not accepting driver liability as I don't remember who was driving at the time of the incident). So I'm thinking that there may be areas that I need to remove but as I'm having difficulty in getting to grips with all the legal wording, I'm not even sure about this! 

Unless this draft is absolutely horrendous, then I think it's time for me to get this all sent off.

If it is horrendous then obviously I have another late night ahead!

IN THE COUNTY COURT xxxxxxxx

Claim No.: XXXXXXXX

Between

Civil Enforcement Limited

(Claimant) 

- and -  

xxxxxxxxx

 (Defendant)

____________________

DEFENCE

____________________

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

2.     It is admitted that the Defendant was the registered keeper of the vehicle in question, but liability is denied as it is not known who the driver was at the time of the incident. 

3.     The defendant first became aware of the PCN when applying for a mortgage in principle. It was declined due to the presence of a CCJ on the defendant’s credit file. A quick investigation revealed an unpaid PCN from a twelve minute overstay in a car park belonging to xxxxxxxxxx in xxxxxxxx on 18/08/2018.

This has caused the Defendant considerable harm as it has meant the loss of the purchase of a new property and will mean the Defendant will be unable to obtain a mortgage for some time, causing a lot of undue stress that could have been avoided.

All correspondence from this PCN had been sent to a previous address and therefore the Claimant had incorrectly served judgment as there had been no service. The Defendant has, at no point, been given any opportunity to pay, appeal or respond in any way.

The Defendant applied for a SAR from the Claimant. Once received it could be seen that, over a period of 11 months, the Defendant was sent a total of nine letters from the Claimant and their third-party debt collection agency. It is reasonable to believe that having not received a response from ANY of these, the Claimant would assume that the address being used was not the current one and steps should have been taken to correct this.

The Defendant believes that the PCN issued by the Claimant does not adhere to the ‘Keeper Liability’ requirements set out in the Protection of Freedom Act 2012, Schedule 4, and so cannot be held liable.

The Defendant believes that the twelve minute overstay by the driver in this case should not have been issued with a PCN as that time would be considered to be part of a ‘consideration period’ and/or a ‘grace period’ as set out by the BPA Code of Conduct and raised in the POPLA Annual Report 2019.

 

4.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

5.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this money claim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

6.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting triple recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

7.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

8.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

9.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

10.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach. 

11.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

12.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

13.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

14.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

15.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

 

16.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

17.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and 

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

18.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

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.

Defendant’s signature:

Date:

 

 

 

redredelise

 

This is the Witness Statement to attach to the N244.

Any comments gratefully received.

IN THE COUNTY COURT AT: County Court Business Centre

 

CLAIM No: xxxxxxxxx

 

BETWEEN:

 

CIVIL ENFORCEMENT LIMITED (Claimant)

 

-- and --

 

xxxxxxxxxxx (Defendant)

 

 

______________________________________________

WITNESS STATEMENT

______________________________________________

 

 

I am xxxxxxxxxx of xxxxxxxxxxxx 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 19/06/2019 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 19/06/2019. 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 14/08/2018 at the car park for xxxxxxxxx. 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 xxxxxxxxxxx). 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 22nd February 2021. 

 

1.3.1. I discovered a CCJ was lodged onto my name on the 22/02/2021 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 as the offer I had made had been accepted. I needed to act quickly if I was to hold on to the property. Due to the CCJ I was unable to go ahead with the purchase and I lost any prospect of buying anywhere for some time.

 

1.3.2.  22/02/2021 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. 22/02/2021 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. 23/02/2021 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. 24/02/2021 Email received from County Court Business Centre confirming points discussed in our telephone conversation.

 

1.3.6. 27/02/2021 Telephone call to xxxxxxx– manager not available.

 

1.3.7. 02/03/2021 Telephone call to xxxxxxxx – manager not available.

 

1.3.8. 04/03/2021 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. 04/03/2021 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 xxxxxxxx Council to ask if Civil Enforcement Limited had planning permission to place the signs on private land. 08/03/2021 Email response to confirm that planning permission was not required.

 

1.3.10.  11/03/2021 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. 27/03/2021 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. 01/04/2021 Telephone call with manager at xxxxxxx – 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.

 

1.3.13. 01/04/2021 SAR received by Civil Enforcement Limited. It was noted that over a period of 11 months CEL sent a total of nine correspondence in relation to the incident. It would be reasonable to believe that CEL would assume that they would have an out of date address, having at no point received a response, and should have looked to obtain a current address in order to rectify this.

 

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 (xxxxxxxx). This omission prevented me from being able to get this charge cancelled by the landowner (xxxxxxxxx). If I could have appealed to POPLA or had known about the charge and been able to contact the landowner (xxxxxxxxxx) 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. 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 "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 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.

 

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)

                          

Signed:

 

 

 

 

 

redredelise

This is the Draft Order for N244

IN THE COUNTY COURT AT: County Court Business Centre

CLAIM No:xxxxxxxx

BETWEEN:

CIVIL ENFORCEMENT LIMITED (Claimant)

-- and --

xxxxxxxxxxx (Defendant)

______________________________________________

DRAFT ORDER

______________________________________________

IT IS ORDERED that:

1. The default judgment dated xx/xx/xxxx be set aside.

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

1. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4 pm on xx/xx/xxxx 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.

1. 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/xxxx.

1. 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.

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

KeithP

In para 1.1 I suggest that the last word be replaced with parking event.

The word offence gives this Claimant more authority than they are entitled to.

No offence was ever committed and no allegation of an offence was ever made was it?

henrik777

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

Then you ask for the same sum again if they fail to serve particulars and then again if they discontinue. These are only terms you'd seek to add IF you don't get outright costs and they are reserved.

1505grandad

A heads-up:-

WS  -  SoT states "I believe that the facts stated in this defence are true"

"SET ASIDE THE DEFAULT JUDGMENT"

"1.2. I understand that the Claimant obtained a Default Judgement...."

You have erroneously included a middle "e" (in this context) several times.

redredelise

Great, thanks for this.