CCJ old address for PCN's Partner received-need set aside & removed from credit file ASAP

IrishAK

Ref: your letter dated 25th June 2021

( they offered me to pay £166 to resolve this was my reply)

To whom it may concern,

Thank you for your letter received on the 29th June.

I too would be happy to resolve this matter without the need for further involvement of the courts, as you know I attempted to do before, applying for the set-aside.

I informed you:

“1. I was not the driver during the instances of June 28th, 2019.

a. This was confirmed by the driver when they called Britiannia Parking after the PCN was issued.

b. The driver also confirmed liability when they gave their payment details to Britannia to pay for the PCN.

c. Due to the driver not being the registered keeper of the vehicle () the payment was declined.

d. I transferred liability to the driver of my vehicle after receiving the PCN filling in the notice on the bottom of the PCN and returning it.

 

I believe I have stated a fair and accurate case for this CCJ to be set aside. However, in light of wanting to come to a swift agreement to settle the case justly with proportionate costs in a timely manner whereby both parties are on equal footing. On receipt of signed consent, I shall file this to the court myself and I am willing to pay the £100 consent fee.

If you do not consent to this, I will pursue the judgment to be set aside without consent on the above grounds. I feel I have good reasons and a reasonable prospect of successfully defending the claim which I understand means, that if the court grants my application to set aside, I shall be entitled to the application fee of £255 from yourselves. I would then fight the original PCN charge.”

I had to call to chase this up with yourselves (BW Legal) and was told outright:

“Our Client has taken all reasonable steps to locate your whereabouts, and without any evidence to suggest otherwise, they are satisfied the CCJ has been entered correctly and we are instructed to oppose any application you make at this stage. If you however provide any evidence to support your position, we will revert to our Client for further instruction.

We invite you to contact us to arrange repayment of the balance of £266.80. Once the balance has been received in cleared funds, we will notify the Court of payment and the CCJ will be marked as satisfied on your credit file.”

On 14th May 2021 I submitted my case in order to set aside this judgement and fairly present the case with the facts below:

 

I, the defendant believes the Claimant has behaved unreasonably in pursuing a claim against the wrong defendant without ensuring they held the Defendant’s correct contact details at the time of the claim. With prior knowledge that the registered keeper was not the driver and knowledge that they were unable to invoke the 'keeper liability' power of Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA'). The Defendant notes that the Notice to Keeper was non-POFA in wording, given that it was a version that made no attempt to comply with paragraph 9 of the POFA. The Claimant will be aware of this - they issued the document - and yet it has knowingly sued the wrong person, who the Claimant knew could not have been liable as soon as they knew that a third party was the driver. The Defendant submits that this must reach the high bar of wholly unreasonable conduct.

 

As there was no contract created between the claimant and the defendant, with no contract, there can be no breach. The defendant, as the keeper, cannot be held liable and therefore the claimant is claiming against the wrong party and the claim should be dismissed. It is admitted that the Defendant was the registered keeper of the vehicle in question, but liability is denied. The defendant was not the driver and was elsewhere at the time of the alleged event on June 28th, 2019

 

As you see, I have an excellent case to win this claim as proven by the judge who set aside this case without a hearing. I am willing, prepared and able to fight this claim as well as the other ticket you have for my vehicle, Where once again, I was not the driver. (Account Number: #######your Reference Number: ~####)

I would now invite you to end this baseless claim and pay my set aside fee of £255 I paid to the courts as you did not give consent when contacted before the issue of the set aside claim, BUT If you are willing to end proceedings on all the claims against me (ccj and tickets), I will not proceed with claiming costs and would be happy to end the matter here.

 

Please get in contact with me regarding your decision before 29th July as I will be submitting witness statements and court docs on the 30 July if I have had no response.

IrishAK

this was their response, 

Dear Sirs,

 

I tried to contact you to resolve this matter, unfortunately you was unavailable.

 

I have reviewed this matter and strictly without prejudice, our client is willing to discontinue their claim against you, on the basis that you shall not seek to recover any sums already paid to the claimant and there be no order as to costs as each party bears their own costs.

 

If you agree to the above terms, please respond back to this email or give me call by 4pm on the  28/07/2021 and we can get this matter settled.

 

Yours sincerely,

 

Shapla Begum

Paralegal

bwlegal

IrishAK

 I didn't pay any sums to them or the client ever, 

I did pay £255 to the court for the set-aside but was no hearing,  judge didn't mention costs( it was in my draft order)  so not sure  I could claim that £255 back?  

what happens next,? 
obviously, I will want something in writing that states they are dropping this and the other 2 tickets. ( but advise on what exactly this should contain?) 

who informs the court?  to stop the hearing? is there anything to pay? 
then I guess they don't file for the CCJ again? not sure, is that it? all over? 

Coupon-mad

Wow this is horrendously bad English from a 'professional firm of solicitors':

unfortunately you was unavailable.

You need to read the Order the court sent out after the Judge decided about the CCJ.   Did he/she decide it without a hearing even though you paid for a hearing? It will say either that the claim is dismissed (i.e. gone, dead!) or that it can be pursued after you sent a defence.  What does it say?

IrishAK

Yes no hearing, just this letter, 

IrishAK said:

pg3- final page  

So I don't submit docs and presume they don't pay the fee? 

Redx

it definitely mentions that the defendant will get all costs incurred , if the claim is struck out, if they fail to pay the trial fee etc , so surely that means you can turn it into a costs hearing, or write to the court and claim your costs back ? in BOLD on page 3

seems that way to my untrained eye

IrishAK

 our client is willing to discontinue their claim against you, on the basis that you shall not seek to recover any sums already paid to the claimant and there be no order as to costs as each party bears their own costs.

however, if I agree I cannot claim the funds back,(the £255 I paid to sed aside)  just checking there are no more costs involved?(feel like there trying to trick me)

Redx

thay are, they are trying a drop hands offer , IMHO , to get out of paying your costs etc , plus they wouldnt be paying for a hearing, because that court order asked the parties to try and negotiate a settlement

you want a settlement that refunds your costs at the very least !! surely ?

D J Grand has already set aside the CCJ , so nothing to pay unless it went to a hearing and you lost

Coupon-mad

The Defendant does realise they have to get your WS and evidence in by next Tuesday daytime?   Easy to do and copy from any other example here on the first few pages. 

No links given, get reading court threads at WS and evidence stage.

I love the way DJ Grand sets aside parking CCJs without a hearing and we should have realised this and suggested a £100 set aside (without a hearing) given it's Southampton.

The CCJ is set aside (good) and your actual case will be heard re the defence in September - and you must attend - but you (of course, as the NEWBIES thread tells you) have more work to do than just a defence!    There are Witness Statement examples literally every day on the forum.  Two in the past 2 days at least, easy for you to find and copy from and adapt to suit the case.

OK, so what  defence (exactly) did the Defendant put in, and is the Defendant you or your partner?

Remind us which car park and the circumstances, and whether the Notice to Keeper was a POFA one or not?

IrishAK

OK, so what  defence (exactly) did the Defendant put in, and is the Defendant you or your partner?

 Myself the registred keeper. 

Remind us which car park and the circumstances, and whether the Notice to Keeper was a POFA one or not?

New road car park southampton, Non POFA compliant NTK 

this was the draft defence i submitted with the n244 which is now the defence (a bit annoyed as had prepared a full defence as well based on reading posts)  Yes coupon mad I have read loads and have the WS mostly done and half the bundle with all the examples you gave in telephone hearing posts. 

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 the standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

2.1. There was no contract created between the claimant and the defendant. With no contract, there can be no breach. The particulars of claim state that the keeper is liable for the alleged debt. The defendant, as the keeper, cannot be held liable and therefore the claimant is claiming against the wrong party and the claim should be dismissed. It is admitted that the Defendant was the registered keeper of the vehicle in question, but liability is denied. The defendant was not the driver and was elsewhere at the time of the alleged event on June 28th, 2019

2.2. On 14th May 2021 the defendant submitted my case in order to set-aside this judgement and fairly present the case. The defendant believes the Claimant has behaved unreasonably in pursuing a claim against the wrong defendant without ensuring they held the Defendant’s correct contact details at the time of the claim and with prior knowledge that the registered keeper was not the driver and knowledge that they were unable to invoke the 'keeper liability' power of Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA').  The Defendant notes that the Notice to Keeper was non-POFA in wording, given that it was a version that made no attempt to comply with paragraph 9 of the POFA.  The Claimant will be well aware of this - they issued the document - and yet it has knowingly sued the wrong person, who the Claimant knew could not have been liable as soon as they knew that a third party was the driver.  The Defendant submits that this must reach the high bar of wholly unreasonable conduct.

2.3. This defendant believes the Claimant has behaved unreasonably in pursuing a claim against them without ensuring they held the Defendant’s correct contact details at the time of the claim.

2.4. On that basis, the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence despite having 20 months and 2 days since the PCN was issued to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgement.

3.1. In July 2019 the defendant received a letter by post from the claimant for a Parking Charge Notice for June 28th, 2019. The defendant was not the driver and was elsewhere at the time of the alleged offence.

 

3.2. This was confirmed by the driver of the vehicle when they called Britannia Parking shortly after the PCN was issued in July 2019. The driver also confirmed liability when they gave their payment details to Britannia to pay for the PCN over the phone in July 2019. Due to the driver not being the registered keeper of the vehicle (xxxxxxx) the payment was declined.

 

3.3. The defendant transferred liability to the driver of their vehicle after receiving the PCN via notice on the bottom of the PCN on July 15th, 2019 approx.

 

3.4. The Claimant obtained a Default Judgement against the Defendant on 1st of March 2021. The Claimant is Britannia Parking Group Limited T/a Britannia Parking, and that the assumed claim is in respect of unpaid Parking Charge Notice from the 28th of June 2019 at my then residence xxxxxxxxxxThe claim form was not served at the defendant’s current address and thus was not aware of the Default Judgement. The defendant discovered the CCJ on the 30th April 2021 after her Mortgage Advisor had put through a Mortgage in Principle which got declined. This was the 3rd mortgage that the defendant applied for but the first to be declined.

 

3.5 The address on the claim is xxxxxxxxx. The defendant moved to their current address at xxxxxxxxxx,  on the 19th July 2020. After the only correspondence from the defendant to claimant sent in July 15th, 2019 approx., given 2 days for posting this still leaves approx. 19 months and 15 days to find my correct address.

 

3.6. On 30th April 2021, I contacted the County Court Business Centre to obtain relevant information relating to this default judgement; Email received by the County Court on Friday 7th May 2021; Exhibit XX

3.7.  In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

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 £5 (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 double 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.   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.