Excel - Set aside WON & CASE WON - Excel defeated AGAIN!

milkybk

henrik777 said:

So more tosh jeezo.

Look over all you sent, make sure it doesn't say solely 13.3 anywhere then, if time permits, ask for clarification on these "points" and state you intend to ask for it to be struck out based on the inaccuracies and guesses and generally being argument rather than witness evidence.

Coupon-mad said:

You could send a further WS and refer specifically to 13.2, deal with how your case fits it and how they’ve admitted fault by failing to take any steps to locate you (after all, you were engaging with them then years later had stopped so it was more than likely no longer a good service address). 

Then quote 13.3 as an alternative position and explain that even if the court is not satisfied that 13.2 is met (which it is... but in the alternative) then 13.3 is and there are certainly good reasons to set the CCJ aside.

Add a costs schedule and at the hearing, ask the Judge for your fee to be ordered to be paid by this Claimant, whose WS disclosed that they made no attempt whatsoever to locate or check your address, contrary to the CPRs, the IPC Code of Practice and the GDPR requirement in Article 5(d).

Hi @henrik777 & @Coupon-mad - thanks for taking the time to reply. Sorry I've been a bit slow in return. I'm currently dealing with a serious back injury, so sitting at my desk to type is quite difficult. Please find below my draft order, witness statement and completed N244. I thought it would be easier for you guys to cast your eyes over them and see if anything I said is wrong (e.g. implies wrong CPR) and whether anything is missing. Hopefully they're okay, as I spent a lot of time reading threads on here etc to try and ensure they were solid.

FYI - my court date is the end of September, so I have time to send in additional info and reply to Excel . However I'd obviously like to do it all ASAP, as I've kept on top of everything in a timely fashion so far (with a lot of help from these forums, thank you).

Draft order:


N244:




Witness Statement:

Coupon-mad

Google and remove ‘wilfully’!

And add in a quote from the IPC CoP from the time of the claim, the bit that says that members have to check addresses if the DVLA data is more than 12 months old, before filing a claim.  

The DVLA database is notoriously unreliable as it shows a snapshot at a time a motorist bought the vehicle and even when people update their driving licences when they move, the DVLA fail to rectify all their records of the same data subject.  Parking firms know this.

Also the CPRs require a claimant to take reasonable steps to ascertain that they have a reliable address for service before filing a claim.

milkybk

Coupon-mad said:

Google and remove ‘wilfully’!

And add in a quote from the IPC CoP from the time of the claim, the bit that says that members have to check addresses if the DVLA data is more than 12 months old, before filing a claim.  

The DVLA database is notoriously unreliable as it shows a snapshot at a time a motorist bought the vehicle and even when people update their driving licences when they move, the DVLA fail to rectify all their records of the same data subject.  Parking firms know this.

Also the CPRs require a claimant to take reasonable steps to ascertain that they have a reliable address for service before filing a claim.

@henrik777 & @Coupon-mad - I've thoroughly checked over all correspondence with Excel etc, I've never citied CPR 13.3 alone. Quite the opposite actually, all my recent emails to excel have specifically referenced CPR 13.2 - which they've decided to ignore, presumably as it ruins their defence haha! See emails below:





So with that in mind I have drafted the below response to their email, which I shall send to both Excel and to the court (on reply to Excel's recent filing). Please could you both review it and critique it, thanks in advance: 

______________________________________________________

Dear Sir/Madam,

Ref: Claim number: XXXX

I am writing to you in reference to Jake Burgess's email, dated 1st September 2021.

On behalf of the Claimant, Excel Parking, Mr Burgess has inferred that only CPR 13.3 applies to my set aside case. However my N244 application specifically states "The Defendant seeks an order setting aside the judgment dated 03/09/20 pursuant to CPR 13", not just the single clause Mr Burgess wishes to focus on. Furthermore, all my correspondence with Excel has clearly stated that the main grounds for my set aside hearing are based on CPR 13.2, please see emails attached showing aforementioned correspondence.

CPR 13.2 states: 

"If the default judgment has been wrongly entered, under Rule 13.2 of the Civil Procedure Rules the court must set aside the judgment." 

Requirements for a mandatory set aside of a default judgment:

If the Claimant makes an application for a default judgment on the basis that no acknowledgment of service or defence has been filed within the required time periods and this is wrong, the court must under CPR 13.2 set aside the default judgment. This is the case even if there is no defence on the merits.

Therefore, my detailed Witness Statement and Exhibits clearly shows that the Judgment has being defectively served. Therefore, CPR 13.2 applies to my case and the Judgment must be set aside.

Furthermore, in reference to the corresponding points in Mr Burgess's email:

6.This amounts to an admission that Excel Parking (and their legal partners) never recheck an address under any circumstances no matter how long ago the acquired the information. Their trade code of practice says otherwise, as do the rules of the court.

7. Again, Excel voluntarily admit that they're aware of this being common issue but as above, they'll never double check even after years. Furthermore, the vehicle in question was sold in March 2017, please see DVLA slip acknowledging transfer of ownership of the vehicle. Therefore, Excel relying solely on this piece of information is inadequate. 

8. The Claimant accuses the defendant of ignoring correspondence. Stating as a fact I ignored something is disingenuous, as they have no evidence to prove so, it's conjecture at best. I cannot ignore something I knew nothing about.

9. As with point 8, I have not knowingly received any correspondence from BW Legal. It is impossible for Excel to know whether or not this is the case. Given my Witness Statement and supporting evidence clearly shows that I had moved address, it's likely I didn't receive anything.

Note:
Mr Burgess's opening statement in point 1 of his Witness Statement states "The facts and matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where the facts are within my knowledge, they are true. Where they are not within my own knowledge, they are true to the best of my information and belief."

With the above in mind, points 8 & 9 or Mr Burgess's Witness Statement do not meet the criteria of point 1. Mr Burgess makes guesses at best, no evidence submitted to back up guesses. Therefore I would says Mr Burgess is in breach of his declaration of truth, which is a fraudulent act under the circumstances. 

10/11/12 - If the claimant had done the mandated checks they would have found the address was no longer valid. The fact that a third party agency, DCBL, was able to do this almost 4 years later proves this point.

13. Mr Burgess cites CPR 1 - I have endeavoured to deal with my case amicably and in a timely manor. I attempted to save the court time and expense by offering Excel Parking the opportunity to agree to a mandatory set aside, with them assuming all costs for the process. They have refused. Therefore my only option is to have this hearing, as Excel are unlawfully holding my credit rating at ransom, through a defectively served claim.

I have been forthcoming and honest in my Witness Statement and evidence. Excel refused to provide me with any information relevant to my case until Mr Burgess's most recent email. As you can in Mr Burgess's Exhibits, in my original appeal of the of the purported parking charge I requested information to allow me to better defend myself. They ignored this request. They also ignored my multiple Subject Access Request's, even though they are mandated by law to provide this information. They are subject by law to provide this, as the defendant has a right of access to it. This meant, at the time, I was unable to further defend my case. 

Therefore I believe Excel and Mr Burgess are in breach of CPR 1, which states: "Ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence"


Finally, I will quote the IPC's Code of Practice, which states: XXXXX @Coupon-mad I couldn't find the rule you mentioned, could you help me with a link to it please? That way I can summarise here.


Therefore, with the above in mind, I would ask the Judge to strike out the majority of Mr Burgess's and Excel's points, as the ideas and/or notions they have put forward are founded on probabilities, without any demonstration of their truth and are therefore nothing more than conjecture.

Yours faithfully,
XXXXXXX

ADDRESS

Coupon-mad

Anything you send should be in the form of a signed and dated supplementary witness statement with a statement of truth.

I don’t know which rule it is in the IPC CoP. Why not just do control and F to find the phrase 12 months or the word ‘address’?  Should be fairly easy to locate.

Redx

It's in 22.1 of the IPC CoP

milkybk

Coupon-mad said:

Anything you send should be in the form of a signed and dated supplementary witness statement with a statement of truth.

I don’t know which rule it is in the IPC CoP. Why not just do control and F to find the phrase 12 months or the word ‘address’?  Should be fairly easy to locate.

Haha I did that, don't worry! I'm not trying to make you do all the work! I must have been in the wrong document, found it now. Thank you @Redx

Ok so I will send this but in document format, titled as "supplementary witness statement". I have added the quote from their CoP and have also added a statement of truth. Finally, I have also put together a draft cost schedule. As always, any comments and critique are welcome.

IN THE XXXXXXXXXXXXXXXXX COUNTY COURT

Claim No. XXXXXX

BETWEEN:

Excel Parking Services Limited

Claimant

– and –

Defendant

XXXX

___________________________________________

SUPPLIMENTARY WITNESS STATEMENT OF XXXX

___________________________________________

I am writing to you in reference to Jake Burgess's email, dated 1st September 2021.

On behalf of the Claimant, Excel Parking, Mr Burgess has inferred that only CPR 13.3 applies to my set aside case. However my N244 application specifically states "The Defendant seeks an order setting aside the judgment dated 03/09/20 pursuant to CPR 13", not just the single clause Mr Burgess wishes to focus on. Furthermore, all my correspondence with Excel has clearly stated that the main grounds for my set aside hearing are based on CPR 13.2, please see emails attached showing aforementioned correspondence.

CPR 13.2 states: 

"If the default judgment has been wrongly entered, under Rule 13.2 of the Civil Procedure Rules the court must set aside the judgment." 

Requirements for a mandatory set aside of a default judgment:

If the Claimant makes an application for a default judgment on the basis that no acknowledgment of service or defence has been filed within the required time periods and this is wrong, the court must under CPR 13.2 set aside the default judgment. This is the case even if there is no defence on the merits. The underlined statement overrides Mr Burgess's attempts to jump straight to CPR 13.3.

Therefore, my detailed Witness Statement and Exhibits clearly shows that the Judgment has being defectively served. Therefore CPR 13.2 applies to my case and the Judgment must be set aside.

Furthermore, in reference to the corresponding points in Mr Burgess's email:

6.This amounts to an admission that Excel Parking (and their legal partners) never recheck an address under any circumstances no matter how long ago the acquired the information. Their trade code of practice says otherwise, as do the rules of the court.

7. Again, Excel voluntarily admit that they're aware of this being common issue but as above, they'll never double check even after years. Furthermore, the vehicle in question was sold in March 2017, please see DVLA slip acknowledging transfer of ownership of the vehicle. Therefore, Excel relying solely on this piece of information is inadequate. 

8. The Claimant accuses the defendant of ignoring correspondence. Stating as a fact I ignored something is disingenuous, as they have no evidence to prove so, it's conjecture at best. I cannot ignore something I knew nothing about.

9. As with point 8, I have not knowingly received any correspondence from BW Legal. It is impossible for Excel to know whether or not this is the case. Given my Witness Statement and supporting evidence clearly shows that I had moved address, it's likely I didn't receive anything.

Note:
Mr Burgess's opening statement in point 1 of his Witness Statement states "The facts and matters referred to in this witness statement are within my own knowledge, except where I have indicated otherwise. Where the facts are within my knowledge, they are true. Where they are not within my own knowledge, they are true to the best of my information and belief."

With the above in mind, points 8 & 9 or Mr Burgess's Witness Statement do not meet the criteria of point 1. Mr Burgess makes guesses at best, no evidence submitted to back up guesses. Therefore I would says Mr Burgess is in breach of his declaration of truth, which is a fraudulent act under the circumstances, which could easily be considered contempt of court.

10/11/12 - If the claimant had done the mandated checks they would have found the address was no longer valid. The fact that a third party agency, DCBL, was able to do this almost 4 years later proves this point.

13. Mr Burgess cites CPR 1 - I have endeavoured to deal with my case amicably and in a timely manor. I attempted to save the court time and expense by offering Excel Parking the opportunity to agree to a mandatory set aside, with them assuming all costs for the process. They have refused. Therefore my only option is to have this hearing, as Excel are unlawfully holding my credit rating at ransom, through a defectively served claim.

I have been forthcoming and honest in my Witness Statement and evidence. Excel refused to provide me with any information relevant to my case until Mr Burgess's most recent email. As you can in Mr Burgess's Exhibits, in my original appeal of the of the purported parking charge I requested information to allow me to better defend myself. They ignored this request. They also ignored my multiple Subject Access Request's, even though they are mandated by law to provide this information. They are subject by law to provide this, as the defendant has a right of access to it. This meant, at the time, I was unable to further defend my case. 

Therefore I believe Excel and Mr Burgess are in breach of CPR 1, which states: "Ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence"

Finally, I will quote the IPC's Code of Practice, which states: 
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.

This clearly shows that Excel are in breach of their own Code of Practice. The claimant did not attempt to check my details, even though over 43 months had passed between the issue of the alleged parking charge on 21st February 2017 and the claim being filed on 3rd September 2020.

Therefore, with all of the above in mind, I would ask the Judge to strike out the majority of Mr Burgess's and Excel's points, as the ideas and/or notions they have put forward are founded on probabilities, without any demonstration of their truth and are therefore nothing more than conjecture.

Statement of Truth:

I, XXXXX, the Defendant, 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.

Yours faithfully,
XXXXXXX

___SIGNED___

___DATED____

ADDRESS


__________________________________________________________________

Draft costs schedule

I respectively request that the court orders the claimant, Excel Parking, to pay the unnecessary costs their defectively served claim has caused. A summary of those costs can be found below:

1. £250 for their failure to serve on the last known good address, breaching their duty to the court and the statement of truth they signed when filing the claim against a known incorrect address. 
2. £255 for my set aside fee.
3. Loss of leave or earnings to attend hearing - day of annual leave taken from work. I'm a salary employee, a contracted day of work is 9 hours, equating to ~£242.30

Indemnity basis: 

1. Time spent researching the CCJ, compiling a Witness Statement & Draft Orders - 10 hours
2. I will also pursue a counterclaim for breach of DPA, as they failed to maintain accurate records and have caused unnecessary damage to my credit rating, which I summarily assess at £750. 

Yours faithfully,
XXXXXX

___SIGNED_____

___DATED______

Jenni_D

Cost item 1 looks like an indemnity compensation amount ... can you throw that into your costs schedule? Would doing so annoy the judge such that they'd deny all but your attendance costs?

milkybk

Jenni_D said:

Cost item 1 looks like an indemnity compensation amount ... can you throw that into your costs schedule? Would doing so annoy the judge such that they'd deny all but your attendance costs?

Hi Jenni

I'll be honest, I wasn't 100% sure about the costs section, even after reading some threads. So I sort of copied one and edited the personal bits to suit, happy to remove and or amend it as advised. 

Should I be sending all this extra stuff just to the court? Or do I need to send it to Excel too? I know everything gets shared eventually, just feels like I'm giving them an opportunity to correct their mistakes before the hearing, which I'd rather they didn't haha. 

Jenni_D

At this stage in proceedings, IIMU that anything you send to the court (filed) must also be sent to the other party (served).

milkybk

Jenni_D said:

At this stage in proceedings, IIMU that anything you send to the court (filed) must also be sent to the other party (served).

Ok no problem. What would you suggest amending the costs section to?