CCJ after CN

tommoCF

Hi there, I very much admire all the expertise and help provided here and will be very grateful for advice on my own case. 

I’m a leaseholder of a flat on an estate with parking. After living there a few years, the freeholder (council) imposed a parking scheme. Residents had to buy a permit each year, which I did. In 2018 I began letting the flat out, so I didn’t renew my parking permit when it expired. I returned for a few days at the end of August 2019 in-between tenancies to re-paint the flat. I displayed a ‘visitor’s’ pass that I’d had previously as part of the scheme the freeholder operated, allowing temporary parking.

Despite this I got a charge notice from Ace Security Services on 30/08/19. I quickly googled Ace at the time and read on this forum they weren’t a member of the BPA or IPC (thread titled 'Charge Notice from Ace Security Services' from 2015 (not permitted to post link as a newbie yet!)). Based on this I assumed they were chancing it for the £100 (‘£60 if paid within 14 days’) and wouldn’t be able to pursue me. Also it seemed legitimate I’d parked there as a leaseholder (and a resident too at that time, albeit only for a few days.).  

In August 2020, I returned to the flat again. It’d been empty awhile due to Covid so post had accumulated. I discovered a CCJ, issued in default by Northampton Business Centre on 06/04/2020. There was no claim form. There was a follow-up Gladstones letter dated 20/04/2020. I only identified it was Gladstones from the ‘GS’ watermark - most of the page was blank and sentences cut off midway through. It looked as if another sheet of blank paper had been laid over it while making a photocopy so half the page was obscured. It referred to their client PACE and asked for payment, but made little sense overall.

Since then I’ve been forwarded on debt collection letters from Equita - the last one dated 24/09/20 had the cost at £353.32. It threatened a collection agent attending the property. Needless to say that I hadn’t updated my address with the DVLA when I stopped residing at the flat. I’ve since done so for both my licence and vehicle. I phoned County Court who told me that a claim form was serviced on 09/03/20 (allowing until 28th March to respond). I looked up Ace again at this stage and realised I hadn’t read far enough along the thread before, and Ace became an IPC member a few years back (lesson learned there…).

At that stage I thought I’d either have to pay the fine and costs (having ignored it initially and being without a legitimate defence), or just continue to ignore it. Recently however, I’ve read more widely on this site and now understand that the primacy of contract of my lease means that Ace shouldn’t have issued the CN in the first place - the situation seems as described by parking prankster here on his blogspot post from November 2016 titled 'Residential Parking'.

Indeed the case referred to (Pace v Mr N [2016]) cites lease clause 6.3, which is the same as in my own lease: 

“6.3 To park one private motor vehicle only in the area (if any) set aside by the Lessor for parking purposes on the Estate PROVIDED ALWAYS that such motor car is taxed insured and in regular use AND that no maintenance or other work is carried out to or in the motor car whilst the same is parked on the Estate

SUBJECT to such reasonable regulations for the common good thereof as the Lessor may from time to time prescribe”

So I’m now thinking I should apply for a set-aside of the CCJ. And if successful contest the case against Ace. My main concerns is whether I’ve left it too long? Clearly I bear fault for not having my address up-to-date with DVLA. However, Ace appear to be operating without legitimacy since their agreement with the landowner/freeholder takes no account of the prior agreement the freeholder has with its leaseholders. When I began letting out the flat in 2018 I ensured the freeholder held my correct address (who manage the estate including the land  and to whom I pay ongoing service charges). Would it not be reasonable to expect the operator to contact the landowner if the alleged parking infringement was by someone registered as resident? 

In terms of completing the N244 form to apply for a set aside - I’m wondering whether after this amount of time the court would permit a set-aside on discretionary grounds? i.e. decent chance of winning the case? Otherwise I probably have no excuse for having ignored the ticket. From a DVLA SAR I found my details were given to Pace Storage Ltd on 30/09/19. The claim form for proceedings starting was supposedly sent on 09/03/2020 though this was not with the other post. 

I’ll be very grateful for any thoughts on my questions above and advice on how to proceed. I’ve tried to read and follow as much as I can that seems of relevance within the newbies sections. Using that I’ve drafted what I might enter onto my N244 form:

N244 p.1 - What order are you asking for and why? 

The Defendant seeks an order setting aside the judgment dated 06/04/2020 pursuant to CPR 13. The Defendant seeks the order to set aside because he was unaware of the proceedings. The Claimant served proceedings at an address not used by the Defendant since 2018. 

N244 p.2 - Witness statement: 

The claimant obtained my details from DVLA on 30/09/19. They allegedly served proceedings on 09/03/20. My address details were not up-to-date with DVLA but some time later I was able to access post from that address. The claimant did not attempt to make contact before serving proceedings in the five months after obtaining address details. An electoral roll search would have shown that I was not registered at the address in question. The freeholder who owns and manages the estate on which I was parked and to whom I pay a service charge were in receipt of my correct up-to-date address. Following the judgement in default the claimant’s solicitor sent a letter which is illegible and whose identity could only be made from subsequent letters from a debt collection agency. 

Why the claim is defensible: 

The defendant holds a lease which provides parking provision on the estate where he was parked. The lease has not been varied by the freeholder. Although the lease gives scope for subjections in terms of parking rights of such reasonable regulations for the common enjoyment thereof as the Lessor may from time to time prescribe, there has been no consultation with the lessee regarding this nor any notification of a variance of the lease. On these grounds a primacy of contract exists between the defendant and the landowner, namely the lease, meaning the charge notice issued by the claimant and their subsequent actions pertaining to said charge notice were not legitimate.

Umkomaas

If the court papers were served on a previous address, then a set aside is pretty much automatic.  There is a fee of £255 for a contested set aside, or £100 for a set aside with consent - please read the NEWBIES FAQ sticky, second post, which gives comprehensive guidance on the process. 

I wouldn't worry too much about the DVLA address updating at the time (you have updated them now with your current address, haven't you?  Two separate notifications - driving licence and V5C logbook). The PPC only gets one dib at obtaining your DVLA data, that's at the time of the parking event. They don't get another go later (for the same event), neither does the DVLA tell the PPC of any updates you notify. 

My main concern right now is that there is a bailiff firm sniffing around which suggests the PPC has applied for a 'Warrant of Control' (is that phrase used in the Equita letter?) which means that you could be getting a crack of dawn knock and a couple of likely lads looking to grab your 75" Samsung!  So your set aside application takes on a real urgency. If there is a Warrant of Control you will need to  get the court to instruct Equita to place on hold as you've made a set aside application. The forum expert on set asides is @henrik777, who will hopefully be around sometime in the next 24-36 hours to give a much stronger steer on this, although I haven't seen him on the forum today. Do remember it is BH weekend, and already some of the senior regulars are away.

The_Slithy_Tove

Everything else aside, one wonders why you had to buy a parking permit. In effect, you were being charged for the right to do something that the lease allows anyway, i.e. park. That could surely be used against the parking company, or even your landlord - demand that money back as it was entirely unjustified.

tommoCF

Many thanks Umkomaas - am continuing to read through the Newbies sticky re set asides - all very useful. My thought is to apply for a contested set aside (meaning I could claim back the £255 if I understand it correctly?). I used Johnersh's suggestions wihin the set aside threads for the draft N244 wording in my first post.

Yes, I've updated DVLA with my current address for both licence and vehicle, two seperate notifications.

Regarding the baillifs - the property currently has tenants living there..  post addressed to me has been forwarded on by the letting agent I'm using. The last Equita letter I received was dated 24/09/20 and said if £353 remains unpaid they'll sent a collections agent to the property. There was no mention of 'warrant of control' anywhere in the letter. As far as I'm aware no baillifs have attended the property (and obviously I'm keen to avoid this happening). Also I can't be 100 per cent sure that all post arriving at the address for me has definitely been forwarded onto me. Is there a way of checking if a warrant of control has been issues without contacting the baillifs themselves? Many thanks again for the guidance and as you suggest I'll keep hopeful that @henrik777, will get a chance to advise whenever he's next about.

Yes The_Slithy_Tove that's quite right - now I understand about primacy of contract it does seem crazy to have paid for parking permits from the freeholder, when provision to park is included within the lease. The flats are old (pre-war) and the estate has many more parking spaces than residents who actually have vehicles.. They freeholder imposed the scheme without consultation. But the annual charge for a parking permit is only £10. So I think the minority of residents with vehicles foolishy followed the path of least resistence since the cost was nominal, vs the hassle of making formal objections. Who knows how much they sold permission to operate to the PPC - from what I've read here, Ace are well-known for making £s from residents legitimately parking at their own properties. In general the freeholder of the estate operates in a pretty dispicable way (highly inflated (and often fraudulent) service charges etc), so they're pretty well suited partnering up with Ace..

Umkomaas

Sorry, but I'm really at the outer edges of my comfort/knowledge zone in the suggestions I've already made. We are getting deeper into legal territory, not what this forum was ever set up for - that was just for dealing with private parking charges at first base. In fact MSE advise that no legal advice is to be given here, even by those legally qualified to do so. 

Hopefully someone can take you further than I can, and while I'll continue to read this, your thread (as I do with every thread and post here - hundreds per day), I'll need to bow out now on the advice front. Good luck 👍

henrik777

It would be very difficult to overcome the delay from the time you became aware of the CCJ until the time you decided to act. This practically rules out cpr 13.3.

However, in my opinion, they ought to have considered that you no longer resided at the address as non response and a significant time period are  "reason to believe".

As both parking trade bodies have clauses that direct their members to run a trace in the scenario, i would say the reason to believe is made out and as such 13.2, which has NO TIME LIMITS comes to the fore and you have good prospects of success.

Le_Kirk

In the meantime and AFTER you have submitted your N244 application, contact the freeholder and ask them when they conducted the consultation in line with the Landlord and Tenant Act and what was the outcome of the vote.

tommoCF

Many thanks for your advice henrik777. Would cpr 13.3 still be worth including in terms of having a real prospect of defending the claim? Also, if I amend the WS to say I've only recently become aware of the CCJ (rather than only recently realising the CN itself was not legitimate), would that increase the likelihood of a positive set aside decision? If I've read correctly I can cite more than one cpr in requesting the set aside, so perhaps both 13.2 as well as 13.3? 
I've made a few amendments to the text for my N244 form below, any thoughts people have gratefully received. Hoping to call the Northampton CCBC to pay the £255 (gulp..) and then email off the form by end of today ahead of bank hol..

N244 p.1 - What order are you asking for and why? 

The Defendant seeks an order setting aside the judgment dated 06/04/2020 pursuant to CPR 13.2 and CPR 13.3. The Defendant seeks the order to set aside because he was unaware of the proceedings. The Claimant served proceedings at an address not used by the Defendant since 2018. The Defendant also has a real prospect of successfully defending the claim.

N244 p.2 - Witness statement: 

The claimant obtained my details from DVLA on 30/09/19. My address details were not up-to-date with DVLA at that time. Recently however I have accessed my post from the address in question. Proceedings were allegedly served on 09/03/20 but there was no claim form with the post.  The claimant did not attempt to make contact before serving proceedings in the five months after obtaining address details. An electoral roll search would have shown that I was not registered at the address in question. The claimant's trade body directs its members to run an address trace in the scenario of non-response, which the claimant appears to have neglected.  The freeholder who owns and manages the estate on which I was parked and to whom I pay a regular service charge were in receipt of my correct up-to-date address. Following the judgement in default the claimant’s solicitor sent a letter without any form of signature, much of which is illegible and whose identity could only be surmised from subsequent letters from a debt collection agency. 

Why the claim is defensible: 

The defendant holds a lease which provides parking provision on the estate where he was parked. The lease has not been varied by the freeholder. Although the lease gives scope for subjections in terms of parking rights of such reasonable regulations for the common enjoyment thereof as the Lessor may from time to time prescribe, there has been no consultation with the lessee regarding this nor any notification of a variance of the lease. On these grounds a primacy of contract exists between the defendant and the landowner, namely the lease, meaning neither the charge notice itself issued by the claimant nor their subsequent actions pertaining to said charge notice bear legitimacy.

henrik777

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13#13.3

(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.


From August to now is quite considerable. That would take quite a persuasive argument. Given that costs can be awarded against a litigant for "spurious" (for want of a better word), arguments, i wouldn't try.

However, on the other side, many judges appear to, incorrectly imo,  allow the bad service argument on 13.3 and ignore 13.2. 

tommoCF

Many thanks for your guidance henrik777. I'm trying to figure out which part of 13.2 is pertinent if I just cite that cpr on the N244 form and leave off 13.3? On my CCJ it just says 'judgement for claimant (in default)', but doesn't say anywhere whether it's in default of acknowledgement or defence, which would seem to be of relevance in determining if the conditions in 12.3 were satisfied.  
Is the clause directing its members to run a trace in the scenario of non-response within the IPC code of conduct? I've been looking through the CoC document via their website but can't seem to find that clause.
Even if I don't cite 13.3 on the N244, won't the judge take the view it's taken me too long act? To be honest even though I now understand the situation re primacy of contract and the operator's illegitimacy, I'm not keen risking the £255 if my chances of a set aside are slim, as I'm a low earner (though have a small amount of contingency savings so don't qualify for help with fees). Many thanks - greatly appreciate all the expertise and assistance.

Coupon-mad

I guess you could cite 13.2 and if you feel it is not going well on the day, as your final throw of the dice, politely and calmly ask the court (without urging the Judge) whether he or she is minded to consider 13.3 due to bad service, recognised by the MoJ as being mainly the fault of parking firms and something that was of such concern that a consultation was conducted to try to address the unfairness...and courts must always consider unfairness in matters relying on consumer contracts and consumer notices (signs) as per s71 of the CRA 2015.

https://consult.justice.gov.uk/digital-communications/default-county-court-judgments-2/supporting_documents/defaultcountycourtjudgmentsconsultation.pdf

Search that for the word 'parking' and you will see that the MoJ were not under any illusions. 

The wheels are turning horribly slowly to change this but I guess it went on hold, due to the MHCLG new framework which will hopefully go some way to address the issue of CCJs which was certainly bothering the Government.  It is a fact, from MoJ statistics, that private parking operators are currently issuing more than 100,000 court claims annually, of which only around 10% are defended.  Around 80% go to default judgments which is abhorrent for consumers who woudl have defended, had a trace been carried out that costs less than 30p (or around a fiver in any case) if done in bulk:

https://www.digitalmarketplace.service.gov.uk/g-cloud/services/435094443943409

https://assets.digitalmarketplace.service.gov.uk/g-cloud-12/documents/700542/435094443943409-pricing-document-2020-07-13-1541.pdf