CCJ after CN

tommoCF

Many thanks for the further guidance. Yes, that makes complete sense re faulty service Coupon-mad and I agree entirely there were solid ‘reasons to believe’ the address the PPC used was not current. Not least because it was more that six months from the date of the parking event (and more than five months after they accessed the notoriously inaccurate data from DVLA) before the claim form was supposedly sent. That’s useful info and stats regarding DVLA data and % of parking claims going to default judgement thanks - I will have those to hand for the hearing. Encouraging to see the consultation papers and MoJ/MHCLG awareness of parking perpetrators (though quite a bit of the description of the process (in the MoJ paper at least) doesn’t quite tally with the CPRs).

I sent on my phone number for the set aside hearing last week (but nothing came back to confirm receipt of this (slight worry)).. I triple-checked the email address so hopefully it got to them ok. Wondering whether I should submit any documents or evidence alongside draft order? While I assume set-aside hearings are normally expected to be less involved than those for judgements of a full case, I want to be as prepared as poss. 

I’ve printed out the sections of the CPRs that are of relevance - can I rely on reference to those for my set aside hearing or would I also need precedent cases to hand? Also wondering if there’ll be questions I need to prepare for about my lack of prompt action, despite requesting the set-aside pursuant to 13.2 rather than 13.3? 

Coupon-mad

You can 100% rely on the CPRs, they are the rules that the court must abide by.  If the Judge asks about promptness, explain what you did but then REMIND the Judge that CPR 13.2 doesn't require promptness because it's a mandatory rule that the court 'must' set aside defectively served claims.

When you ask about what to send in addition to your draft order, I assume you have already sent a witness statement about how the claim wasn't served and the evidence you'd moved, assuming that was the reason for the CCJ not being known?

You should have your defence to the actual PCN drafted in case the Judge asks or wants to whizz through the basics (and you can seize on that to ask that the claim be struck out...sometimes it goes as well the CCJ). .  See template defence thread if you haven't done that.

Lastly, at this hearing don't forget to ask at the end about the £255 if you paid the fee.  So many people come back elated they got their CCJ set aside but then they ask 'what about my £255 costs, the Judge didn't say anything about that?'.  No, because you didn't remind him/her and press for it at the hearing!

tommoCF

Many thanks for the reassurance about reliance on the CPRs - that's what I was hoping.  I’ll underline in my notes to make sure I ask for the £255 at the end! Actually that links with my failure to apply promptly for the set-aside.. My income is very low, below the threshold for Help with Fees, but I’m ineligible for HwF due to modest savings (which I need to pay for rip-off major works overseen by local authority/freeholder at the flat where I was parked (the works are currently the subject of a tribunal due for judgement in the coming weeks)). £255 is a lot of money to me, a sum I can’t afford to risk lightly, so I had to weight up carefully before doing so. 

Yes, I included a witness statement on my N244 explaining the claim wasn't served as it was sent to an old address without any check it was still current. I didn’t provide evidence that I’d moved with the witness statement though - what kind of evidence would be needed? I should send that on now? I put down my current address on the N244 form - does the fact I’ve safely received the Notice of hearing and know the time/date of telephone hearing provide proof enough that it’s where I live? 

Yes, I also have a draft defence to the CN itself, based on primacy of contract so will have that to hand for the hearing too. Hoping the claim itself will be struck out as I’ve requested in my draft order, due to expiry of four months since the claim’s date of issue, so it becomes void since claimant failed to serve it. But if my draft defence of the CN may help with getting claim struck out I’ll probably try to flesh it out a bit more in case needed.

Coupon-mad

You need to send evidence now in readiness for the hearing, put it with a supplementary witness statement signed & dated under a statement of truth, like before. 

This time appending proof of when you moved and that you were ‘there to be found’ were maybe always in the Open Register for voting, and registered for Council tax at the new place, or maybe you can prove that your own credit record shows your current address under your banking data or something? Whatever evidence you have that shows you are an honest witness who changed your data with all sorts of companies like everyone does, and were not trying to escape any purported creditors and so this operator or their legal firm could AND SHOULD have found you, with one online trace for free (Trace Debt Recovery) or under 30p (Equifax and similar).

You could also append your draft defence if you feel it’s ready, or simply tell the Judge a synopsis if asked, to show you have good prospects of successful defence and indeed the claim is doomed and should be struck out.

tommoCF

Many thanks again - as per the advice I sent a supplementary WS along with evidence of my banking/mortgage and other data  showing that my address was changed.

Just seen the C has asserted in their WS that their solicitor (Gladstones) conducted an Experian trace prior to issuing claim, which found I had 'active credit' at the address they’d got from DVLA. No evidence provided of doing the trace. Wondering how likely it is they actually did?

Is is possible to do an Experian trace on a particular address (rather than a person) which might yield an old address despite there being plenty of data for the current address from active banking/mortgage accounts etc? Could this make it possible for a ppc to seek confirmation of an address they already hold, rather than attempting to find the accurate address (I.e. finding what you want to find)?  Not sure how it all works with traces/checks and the different organisations offering these service. Are there a specific defined differences between a credit check and a trace?

Also wondered if there’s a reference for the DVLA telling ppcs they should do a trace before filing a claim? (and whether they advise a trace or a credit check, if there's a difference?).

Castle

Why don't you send a SAR to Experian.

Coupon-mad

And Gladstones won’t have kept evidence if the trace, so don’t ask for it!  Without evidence your witness submissions will likely be preferred by the Judge.

I hope you’ve done the vital public Government Consultation and email to your MP that we are all discussing...sorry I can’t recall but think you have?  Please share on other forums, social media and certainly with your MP:

https://forums.moneysavingexpert.com/discussion/6286801/government-consultation-re-private-parking-charge-levels-august-2021-please-bookmark-this-thread/p1

We are calling for everyone to do a full and robust response by email to the MHCLG, attaching evidence of what happened to you and what you think is wrong about £100 charges and fake debt recovery ‘fees’ that no PPC actually incurs or pays.

We also need people to contact their MP to ask questions about why the MHCLG appear to have performed a U-turn on their March promise to cap parking charges, and why instead they propose to fund the race to court at £70 a time from victims

https://forums.moneysavingexpert.com/discussion/comment/78517562/#Comment_78517562

Sorry if preaching to the converted but anyone reading this: 
PLEASE DO THIS IF YOU WANT CONSUMER VOICES TO OUTWEIGH THE PARKING INDUSTRY’S GREED. WHICH SEES THEM TRY TO CLAIM MORE THAN THE LAW ALLOWS, FROM A REGISTERED KEEPER,

I just looked at the POFA Explanatory Notes (part of the legislation):

https://www.legislation.gov.uk/ukpga/2012/9/notes/division/5/1/3/3

221.Paragraph 4 provides that the creditor has a right to recover unpaid parking charges from the keeper of the relevant vehicle if the conditions set out in paragraphs 5, 6, 11 and 12 are satisfied. The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity. The right to reclaim unpaid parking charges from the vehicle keeper does not apply in cases where the vehicle has been stolen before it was parked, (paragraphs 4(2) to (3)), or in certain circumstances where the vehicle in question was a hire vehicle (paragraph 4(7)). The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4(5)).

tommoCF

Very many thanks indeed to Johnersh, Le_Kirk, henrik777 and especially Coupon-mad for all the guidance and support in recent weeks - very much appreciate all your time and kind help.

Set-aside of the CCJ was granted during my phone hearing which was positive news and quite a relief. The judge didn't strike out the claim though as I'd requested in my draft order nor would he award costs either now or reserved.

Claimant requested in his WS that the brief outline on my N244 of why the claim is defensible should stand as my defence if set-aside was granted, but the judge ordered that 28 days be allowed for submission of defence.

I went through the various arguments and refereced the CPRs..  judge looked at 6.9(3) and listened to what I suggested the 'reasons to believe' were and the 'reasonably steps' claimant should've taken. Overall Judge's attitude seemed to be that I ought to be given the opportunity to defend the claim but no more than that, and he appeared dubious that the claimant's reliance on DVLA data was unsafe per se. He said the fee was what I had to pay for being tardy in not updating my DVLA details and the priviledge or re-setting the clock with the set-aside.

So now I need to put defence together. One thing I didn't ensure I undersstood was whether the claimant (or court) will send me the claim form that I never received, as I guess that form contains details of what the actual claim is and the process for submitting a defence thereto. At the end of the hearing, I was asking about costs and the judge cut things off with his refusal to those so there was no opporuntiy to check about the claim form.

I imagine there will be lots of useful guidance and templates in the NEWBIEs sections and elsewhere on this site for constructing defence so will have a look. Any specific further guidance, pointers and thoughts gratefully received of course!

Coupon-mad

You will only be resent the Particulars or claim form if the Order the Judge posts out now, requires it.

The hearing Directions will be confirmed in an Order but start working on your defence and you should email the PPC to ask for a SAR (if not done yet) and also ask the solicitor who filed the claim for the Particulars of Claim.


Have you looked at this week’s threads and seen that there’s only 3 weeks left to do this:

Government Consultation re private parking charge levels, August 2021: PLEASE BOOKMARK THIS THREAD — MoneySavingExpert Forum

We are calling for everyone to do a full and robust response by email to the MHCLG, attaching evidence of what happened to you and what you think is wrong about £100 charges and fake debt recovery ‘fees’ that no PPC actually incurs or pays. 

We also need people to contact their MP to ask questions about why the MHCLG appear to have performed a U-turn on their March promise to cap parking charges, and why instead they propose to fund the race to court at £70 a pop? 

Posters are being encouraged to ask their MPs to ask questions about why  PPCs have been allowed to persuade the MHCLG that they can add £70 per PCN for sending the same letters ParkingEye always do.  

That would be handing ParkingEye maybe £70m extra per annum from public pockets!  

Even where your PCN isn’t from that company (and pretty much all others do add the unrecoverable costs and all the ex clampers certainly do) I am sure you object as we do to this extortionate illegality!

https://forums.moneysavingexpert.com/discussion/comment/78517562/#Comment_78517562

To anyone reading this: 

PLEASE DO THIS IF YOU WANT CONSUMER VOICES TO OUTWEIGH THE PARKING INDUSTRY’S GREED. WHICH SEES THEM TRY TO CLAIM MORE THAN THE LAW ALLOWS, FROM A REGISTERED KEEPER.

The proposals breach primary law!  I just looked at the POFA Explanatory Notes (part of the legislation):

https://www.legislation.gov.uk/ukpga/2012/9/notes/division/5/1/3/3

221.Paragraph 4 provides that the creditor has a right to recover unpaid parking charges from the keeper of the relevant vehicle if the conditions set out in paragraphs 5, 6, 11 and 12 are satisfied. The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity. The right to reclaim unpaid parking charges from the vehicle keeper does not apply in cases where the vehicle has been stolen before it was parked, (paragraphs 4(2) to (3)), or in certain circumstances where the vehicle in question was a hire vehicle (paragraph 4(7)). The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4(5)

tommoCF

thank you - I will certainly email the MCHLG with my experience for the consultation before the deadline later this month. I've printed off the consultation document itself so will go through it carefully to ensure my responses are tailored to match their qs accordingly.

I will also contact my MP and query the u-turn on capping charges.

I'm anxious to email my SAR to the PPC as don't have long to get my defence together (I hadn't done this before). I only have until 03/09 to file defence, but guessing the PPC will likely take a month or more to repond, which could be a problem? Will Gladstones also have a month to send me particulars of the claim they filed when I email them?

I've been looking throught the newbies FAQ thread.. think I'd found the right template for SAR  - sorry, just wanted to check this is right before I email it?.. had a scan through the other 25 pages on that thread but think much of it refers to contacting DVLA re GDPR so not pertinent right at the moment.

SAR template

[My full address]

[Phone number?]

[The date]

[Name and address of the organisation]

Dear Sir or Madam

Subject access request ( Data Protection Act 2018 / General Data Protection Regulations (GDPR) )

[Your full name and address, any previous address/names and any other details to help identify you and the data you want.]

Please supply the data about me that I am entitled to under data protection law  relating to myself.

 Specifically please supply the following:

- all photos taken

- all letters/emails sent and received, including any appeal correspondence

- all data held, full copies of all PCNs or charge notices, notices to keepers, letters before action and any other correspondence

- a list of all charge notices or PCNs outstanding against me and/or this VRN, (please note any claim must be for all PCNs, not several separate claims)

I attach a scan of the VC5 to confirm my identity. 

It may be helpful for you to know that data protection law requires you to respond to a request for data within one calendar month.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer, or relevant staff member. If you need advice on dealing with this request, the Information Commissioner’s Office can assist you. Its website is ico.org.uk or it can be contacted on 0303 123 1113.

Yours faithfully

[Signature]