CEL CCJ Set Aside - Support Please!

redredelise

Here's the edited Draft Defence.

It's not in one paragraph but two. I'm hoping this is a bit more punchy?

The facts as known to the Defendant:

1.     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. The Defendant believes 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.

 

2.     The Defendant first became aware of the PCN whilst applying for a mortgage in principle. It was declined due to the presence of a CCJ on the Defendant’s credit file. This related to an unpaid PCN from an alleged twelve minute overstay in a small customer car park forxxxxxxxx on 14/08/2018. The alleged overstay was based on images of the vehicle in transit, captured by two unsynchronised 'in/out' ANPR cameras.  No evidence of parking time has been provided. In any case, the driver in this parking event 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, of which the Claimant is a member, and raised in the POPLA Annual Report 2019. 

SayNoToPCN

Your WS does not reference the CPR, and I suggest you look again at Henriks post at 10.24. It is punchier.

redredelise

SayNoToPCN said:

Your WS does not reference the CPR, and I suggest you look again at Henriks post at 10.24. It is punchier.

Yes, you're right 😖

I have included it on my N244 - see below





I've now also added it to my WS as below at point 1. and 2. and 23.

 

1.     Set aside the default judgment dated 19/06/2019 - as per CPR 13.2, alternatively CPR 13.3 - 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. I was the registered keeper of the vehicle at the time of the alleged parking event.

 

2. I understand that the Claimant obtained a Default Judgment 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 xxxxxxxxxx. Service was defective because this Claim was served at a previous address xxxxxxxxx where I have not lived since April 2017 and not at my then current address xxxxxxxxxx as a result the claimant wasn't entitled to default judgment and the court must set aside as per CPR 13.2. In the alternative, it should set aside pursuant to CPR 13.3.

Points 3. to 22. omitted as the same as previously posted. Point 23 is the final point before the statement of truth.....

23. 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 must be set aside, pursuant to CPR 13.2.  In the alternative, it should set aside pursuant to CPR 13.3.

SayNoToPCN

In the alternative is a new para.  Think about the layout.  

redredelise

SayNoToPCN said:

In the alternative is a new para.  Think about the layout.  

Could you expand a little on your thoughts about the layout?

SayNoToPCN

That as was laid out for you, "in the alternative....." MUST be a new para because it is a new topic

You also need to state WHY Cpr13.3 would apply, ie you have good reasons ie a good chance of success defending a claim 

This is your one shot to set out, precisely and accurately, the two grounds for set aside.  You really must do this well.  I cannot stress this enough. 

For cor13.2 you need to lay out their obligations on service, and how they failed to meet them both in fact and also that they knew or should have known the address used was bad.  

You need more than you have. Henrik lays this out in other threads 

redredelise

Okay, I'll crack on and repost when I have something to show.

redredelise

Here is edited WS for comments...
Layout looks better on my Word document. This is still a draft so I am aware that I need to amend the numbering.
I hope I'm getting closer with this edit?

Thanks all 🙂

 

IN THE COUNTY COURT AT: County Court Business Centre

 

CLAIM No: xxxxxxx

 

BETWEEN:

 

CIVIL ENFORCEMENT LIMITED (Claimant)

 

-- and --

 

xxxxxxxxx (Defendant)

 

 

______________________________________________

WITNESS STATEMENT

______________________________________________

 

 

I am xxxxxxxxxxx of xxxxxxxxxxxxx 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 per CPR 13.2, alternatively CPR 13.3 - 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. I was the registered keeper of the vehicle at the time of the alleged parking event.

 

2. I understand that the Claimant obtained a Default Judgment 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 xxxxxxxxxxx. Service was defective because this Claim was served at a previous address xxxxxxxxxx where I have not lived since April 2017 and not at my then current address xxxxxxxxxxxxx as a result the claimant wasn't entitled to default judgment and the court must set aside as per CPR 13.2.

3. I submit that the CCJ should be set aside under CPR 13.2 (a) as the claim form was never served.
CPR 13.2 states - 
13.2 The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–
(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied - 
CPR 12.3 states - 
(1) The claimant may obtain judgment in default of an acknowledgment of service only if –
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.

As I did not receive any claim form then the relevant time for filling an acknowledgment of service has not expired, and so default judgment cannot be served.

4. The relevant CPR for acknowledgment of service is CPR 10.3 which states - 
10.3 (1) The general rule is that the period for filing an acknowledgment of service is –
(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim.
CPR 6 deals with service.
As I did not give an address to the claimant at which i could be served, primarily because I was not asked, CPR 6.9 applies.
CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."
The claimant, having not obtained an address directly from myself, and having obtained an address from a 3rd party quite some time ago and received no response, did not have the requisite knowledge nor perform the requisite "reasonable diligence" required to find my correct address in order to serve the claim form.

5. I was on the electoral roll at the current address at the time of the judgment. Confirmation of my address at this time 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.

6. 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 have lost any prospect of buying anywhere for some time.

 

7.  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.

 

6. 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.

 

7. 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. 

 

8. 24/02/2021 Email received from County Court Business Centre confirming points discussed in our telephone conversation.

 

9. 27/02/2021 Telephone call to xxxxxxxxxx– manager not available.

 

10. 02/03/2021 Telephone call to xxxxxxxxxx – manager not available.

 

11. 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’.

 

12. 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 parking event.

13. 04/03/2021 Email sent to Lewisham 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.

 

14.  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, Witness Statement and Draft Defence. 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.

 

15. 27/03/2021 Email to the Data Protection Officer at Civil Enforcement Limited to submit a Subject Access Request and attached proof of ID and the registration number of the car concerned.

 

16. 01/04/2021 Telephone call with manager at xxxxxxxxxx – 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.

 

17. 01/04/2021 Results of 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 alleged 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.

 

18. 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 11.). This leads to no service; they were not entitled to judgment and the court must set aside the claim.

 

19. 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 (xxxxxxxxxx). If I could have appealed to POPLA or had known about the charge and been able to contact the landowner (xxxxxxxxx) who could deal with such complaints and cancel charges, I would have done so.

 

20. 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 event and the fact that the Claimant was receiving no reply from me.

 

21. 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.

 

22. 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.

 

23. 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 must be set aside, pursuant to CPR 13.2.  

 

24. In the alternative, it should set aside pursuant to CPR 13.3.

25. CPR 13.3 states:

(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

27. Pursuant to CPR 13.3 (1)(a), I believe that I have a real prospect of successfully defending this claim and I would like to draw attention to the attached Draft Defence. Pursuant to CPR 13.3 (2) I believe I acted promptly, having had an offer accepted on a property and needing to act immediately if I was to have any chance of securing finances for the purchase. As can be seen from 4. To 17., there has been prompt action in this regard.

 

 

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.

 

Full Name:    xxxxxxxxx  (Defendant)

                          

Signed:

 

 

 

 

 

Date: xxxxxxxx

henrik777

Looks much better.

redredelise

henrik777 said:

Looks much better.

That's very good to hear. Thank you.