CCJ after CN

tommoCF

Many thanks - the MoJ consultation document makes interesting reading as you say and hopefully will lead to change.

If I only cite 13.2 on the N244 form, should I omit the section on why the claim is defensible that Johnersh recommends? Or still include it? From reading (and trying digest) the cprs it seems that only under 13.3 does consideration of the defendant's promptness of application appear, so if I bring into play why the claim is defensible, does that open up the argument that I'm doing this all too late? I guess it's the difference between the 'must set aside' of 13.2 and the 'may set aside' of 13.3. 
I also still haven't found where the IPC directs its members to run an address trace in the scenario of non-response.

Trying to finalise the text for my N244 as am conscious even more time is slipping away, and with it my chances.. Have put the 'defensible claim' section in square brackets at the end whilst deciding whether to include. Advice and thoughts on this greatly appreciated.

N244 form
What order are you asking the court to make and why?
The Defendant seeks an order setting aside the judgment dated 06/04/2020 pursuant to CPR 13.2. 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. 

Witness statement: The claimant got my details from DVLA on 30/09/19. My address wasn't up to date with DVLA at that time. I have since accessed my post from the address in question. Proceedings were allegedly served on 09/03/20 but there was no claim form with my post. The claimant didn't try to contact me before serving proceedings in the five months after getting my address. An electoral roll search would have shown I wasn't registered at the address in question. The claimant's trade body directs members to run an address trace in the scenario of non-response. The claimant neglected to do this. The freeholder who owns and manages the land where I was parked and to whom I pay service charges has always been in receipt of my correct address. The claimant could have contacted the freeholder.  The claimant did not take reasonable steps to ascertain my current address. 

[Why the claim is defensible: The defendant holds a lease providing parking provision on the estate where he parked. The lease hasn't been varied by the freeholder. Although the lease gives scope for subjections of parking rights of such reasonable regulations for the common enjoyment hereof as the Lessor may from time to time prescribe, there has been no consultation with the lessee 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 is not valid.]

Coupon-mad

I'd definitely have that otherwise it just comes across as a credit cleansing exercise.  You need to show you have good prospects of defence once the charge is set aside. 

I would remove this though, no need to include it:

Although the lease gives scope for subjections of parking rights of such reasonable regulations for the common enjoyment hereof as the Lessor may from time to time prescribe,

and you should add  that you have seen no evidence of the freeholder/lessor having authorised this parking firm to penalise residents, or make contracts with them as a result of a scheme that can only have justification (if at all) to charge trespassers.  Also, the claim was inflated by a pseudo 'debt recovery' charge that was clearly never paid by the Claimant because the third party self-styled and unregulated 'PCN debt recovery' chaser firms operate on a no-recovery-no-fee basis and the very fact this case has resulted in an unknown CCJ is evidence that no 'recovery' occurred.   You can attach the template defence from this forum, suitably edited to show the facts about the resident's rights, in para 3.

henrik777

22 Debt and Debt Collection

22.1 Operators must take reasonable steps to ensure that the Motorist’s details are

still correct if 12 months have passed from the Parking Event before issuing court

proceedings.


Technically speaking 13.2 needs nothing other than to show they failed to follow the rules and the court then "must" set aside. However Judges do not always have the mindset that the rules are the rules so showing that if a set aside is granted you have a valid argument might be wise.

A defendant is only required to acknowledge a claim that has been served. If it hasn't been served then the 14 day clock can't start. If the clock hasn't started you can't be in default and they aren't entitled to default judgment.

tommoCF

Many thanks for the further guidance.
Including the IPC direction to its members might be tricky though, since fewer that 12 months had passed from the driving event to the supposed issuing of court proceedings (08/2019 - 03/2020) so I guess 22.1 wouldn't necessarily apply? I never saw a claim form though, just the judgement itself, months after its issue. I thought read on justice.gov regarding the CPRs that in some instances it might be the claimant themselves who issue the claim form, not necessarily the court? That would seem a ridiculous arrangement, with a high likelihood of unreliability.

I've amended the last part of the text for the N244 as suggested to include why the claim is defensible as below, thank you. Would including the info about the claim being inflatated by the pseudo 'debt recovery' charges and the edited defence template come later, once the set-aside has (hopefully) been granted and I am putting together the case itself rather than within the N244? Much of the pseudo charges seem to have been added on following the judgement for claimant.

Why the claim is defensible: The defendant holds a lease providing parking provision on the estate where he parked. The lease hasn't been varied by the freeholder. There has been no consultation with the lessee 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 is not valid. The defendant is aware of no evidence of the landowner and lessor having authorised the claimant to penalise leaseholders, or make contracts with them as a result of a scheme that can only have justification (if at all) to charge trespassers.

D_P_Dance

There may be scope for a counter-claim, have you read this?

https://www.consumeractiongroup.co.uk/topic/324523-ukpc-liable-for-trespass-success/

tommoCF

Many thanks - I'd been searching for that subject on this forum as I thought I'd read it somewhere. Once I hopefully get my set aside granted and defence underway I'll look further into raising a counter claim.

With regard to my N244 form, something I'm concerned could be held against me that I haven't been in contact with the PPC throughout all this? As per my original post, when I first got the CN I ignored it because I thought it legitimate for me to park there and I'd also looked up the PPC and read they weren't a member of the IPC or BPC  and could therefore be safely ignored.. which was not correct. Then following the CCJ it took me awhile to realise that primacy of contract meant there was solid ground which specifically defined why the PPC was operating without validity. 
I wanted to apply for a set aside without consent as I don't think I should be paying anything.. the PPC should not have been operating in the first place and certainly not to penalise leaseholders and residents. So I want to ask for reimbursement of the £255 and obviously don't want to pay any of the fine itself and definitely not any of the 'debt recovery' charges. Which as I understand it would not be possible if I go down the set aside 'with consent' route?
I intent to issue a SAR to the PPC when putting together my defence case, providing my set aside application is successful and the fee is returned.

So I guess I'm hoping to check with someone whether that seems reasonable in this instance with regard to the N244 form, i.e not getting in touch with the PPC? I've tried to read through as many other posts covering this, esp following the newbies trails so hopefully what I've gleaned therefrom is accurate. I'm grateful for any clarifications and confirmations of this.

Coupon-mad

The parking firm were a member of the IPC, so the PCN shouldn't have been ignored.  However, no appeal would have won because the IAS only upholds just 5% of appeals and is part of the failed system of self-regulation that the Government is currently working on finally replacing with a fairer, statutory framework.

henrik777

So I guess I'm hoping to check with someone whether that seems reasonable in this instance with regard to the N244 form, i.e not getting in touch with the PPC? 

Never.

Perhaps to beat the "prompt" question  but realistically, never is the best way.

tommoCF

Thanks indeed for the further info and guidance.
Sorry, I phrased that question awkwardly about contacting the PPC before I submit the N244 - you mean I absolutely shouldn't get in touch with them? Who would the 'prompt' question come from? 
Many thanks again.

Le_Kirk

Upon discovering a CCJ against you, you should act promptly
Taken from the CPR (Civil Procedure Rules): -

Cases where the court may set aside or vary judgment entered under Part 12
13.3
(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.