Surprise CCJ old address, set aside consent denied!

Coupon-mad

You must remove c) snd can't use d) and that statement of truth is outdated.

Have a read of at least ten current 2021 CCJ threads to see the style of WS suitable for a set aside because that isn't it. Also there are two worked examples in the NEWBIES thread.

To succeed, you MUST get your head around CPR 13.2 and CPR 13.3 and why the CCJ must be set aside because that's what you must get across to the Judge.

The_Slithy_Tove

1.4.c is a dead duck. GPEOL has been a non-starter since PE's Supreme Court win some years ago.

1.4.d is irrelevant, for reasons you have stated. As is 2.4.

2.5 contradicts what you said. You read the signage which you now claim was hidden away. Which was it?

In essence, it appears you read the signage, rejected the offer of contract, so moved the car. No contract was formed. End of.

SSCCJ

Thanks. c and d removed and have updated the statement of truth.

Reading more CCJ threads.

Jenni_D

In any of your previous communication did you say "I parked", "I moved the car" etc.? If yes then they already have evidence (from you) as to the identity of the driver, thus con-compliance with POFA becomes irrelevant.

I didn't see page 2 before replying.

SSCCJ

Thanks. Unfortunately I did.

And this is also what @The_Slithy_Tove and @Coupon-mad meant.

So I have removed these statements. And modified 2.5 statement about signage as well.

Coupon-mad

But you are not meant to be talking about the PCN and signage in a set aside WS.  The first hearing is not about the defence.

There are set aside threads in page one, I've just replied on one for someone whose hearing is tomorrow.  Learn from theirs.  As always, no link as that doesn't help newbies use this board well.

1505grandad

"2.4.       The Defendant understands Parking Control Management Ltd....."?

SSCCJ

Thanks @1505grandad. Will correct this typo.

I think I'm finding it difficult to differentiate between WS and draft defence. Anyways, working on it!

Redx

There is the possibility of 2 hearings

Hearing 1) is about why the Court should set aside the CCJ , nothing to do with the PCN or the catalyst for the invoice , but about service of the court claim to the wrong address , the claimant should have traced you , you were there to be found !!

Witness statement 1) backs up why the set aside should be granted , there isn't a defence , just the application you paid for

If the set aside is granted , this part is next

Hearing 2) ( a few weeks after hearing 1) and possibly a different judge is about the PCN invoice and the original court claim

Defence & Witness statement 2 is about the circumstances in hearing 2)

The bundle for the second hearing includes the defence , witness statement plus exhibits plus summary costs assessment , everything , even if the order says Defence

Both the court and claimant receive your bundle , sometimes a solicitor is employed by the claimant , so they should be used , if it's in house representation , include them instead

SSCCJ

1.1.           I am XXXXXXX of XXXXXXXXX. I am a XXXXXXXXXXXX by profession and I am the DEFENDANT against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

1.2.           This is my supporting statement to my application dated XX September 2021 requesting to:

a.                   Set aside the default judgment dated XX December 2020 as it was defectively served using an old address, pursuant to CPR 13.2.

b.                   Order for the original claim to be dismissed.

c.                   Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

1.3.       I was the registered keeper of the vehicle at the time of the alleged offence.

1.4.       I understand that the Claimant obtained a Default Judgement against me as the Defendant on XX December 2020. I am aware that the Claimant is Walton Wilkins trading as Premier Parking Logistics, represented by DCB legal solicitors, and that the assumed claim is in respect of unpaid Parking Charge Notice on XX April 2019 at my OLD residence XXXXXX.

1.5.       Since the claim form was not served at the correct address, I thus was not aware of the Default Judgement until 08 September 2021. This was when I my finance application got rejected and I had to look for an online credit report.

1.6.       The said Parking Charge Notice which is the basis of court judgment was dated XX April 2019 and sent to my then address XXXXX. I was out of country but replied to Premier Parking Logistics via email on my return on XX May 2019 and raised a few points to state why the notice was inappropriate.

1.7.       The Claimant replied via email on XX June 2019 but failed to address those points in full.

1.8.       There was no correspondence for 18 months until the Claimant decided to pursue for a default judgment.

1.9.       I had moved out of that address in September 2020, 3 months before the Default Judgment would have been sent. In support of this I can provide a scanned copy of my tenancy agreements, email confirmations from DVLA of change of address, alongside copies of council tax and utility bills.

1.10.    I believe the Claimant has behaved unreasonably in pursuing a claim against me without confirming the Defendant’s correct contact details at the time of the claim. They had also failed to explore an ‘alternative place or method’ to inform/enquire the defendant, in my case a method of communication that had already been established i.e. email correspondence.

1.11.    On that basis, I believe the Claimant has not adhered to rule CPR 6.9 (3) and CPR 6.9 (4) 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 some 18 months to conduct it, or using an already established path of communication. This has resulted in the claim being incorrectly served to an old address and an irregular judgement. This leads to no service; they were not entitled to judgment and the court must set aside the claim as per CPR 13.2.

1.12.    To submit a set aside application, I have explored all avenues (internet and court services) to gain further information in this matter.

1.13.    I contacted Premier Parking Logistics and again raised the same point I did in my email on XX May 2019. I asked them to consent to my set aside application which the Claimant refused.

1.14.    I have asked them to send me the CCTV footage of the vehicle from that day and have also submitted a subject access request as per GDPR rules (Data Protection Act 2018 / General Data Protection Regulations (GDPR).

1.15.    I have been therefore forced to submit my set aside complication without consent.

1.16.    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 despite my full-time job working long hours as a healthcare professional in an ongoing pandemic, and that I was amidst moving house with wife and 2 toddlers, I have put my utmost effort to obtain necessary information and have managed to submit the case application within three weeks of discovering the Default Judgment.

1.17.    According to publicly available information my circumstances are just one of many hundreds, if not thousands, of examples. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

1.18.    In support of the request for a mandatory set-aside I will rely upon Marshall & Rankine v Maggs  [2006] EWCA Civ 20 (25 January 2006). [1] Specifically paras 68 – 70 which are inclusive of the following key points:

68.     ... As a matter of the ordinary meaning of words, to say "I know X" entails the proposition that "X is true". We do not see how the phrase "last known residence" can be extended to an address at which the individual to be served has never resided.

69. We accept that the rules should, if possible, be interpreted in a practical way which promotes certainty and minimises the risk of satellite litigation. This does not, however, warrant rewriting the rules so as to make them bear a meaning which they plainly do not have. Nor do we see how interpolating the words "or reasonably believed" in the phrase "the address known to be last residence of the individual" adds to certainty or reduces the risk of satellite litigation.

70. It follows in our judgment that the judge was right to hold that service was not effected on the defendant's last known residence for the simple reason that he had never resided at 47 Hays Mews.

1.19.    I rely upon the following authorities to support that claim is defective as it was not served to a “last known address”:

HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)

1.20.    Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses." The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”

1.21.    I have also read the consultation on Default County Court Judgments by Ministry of Justice published 21 February 2018 and it makes an insightful read. Some excerpts are: ‘the claimant must consider whether there is an alternative place or method by which the claim may be served’. And, ‘Department for Communities and Local Government (DCLG) is reforming parking practices and has already taken steps to tackle rogue private parking operators, including banning wheel clamping and towing. DCLG is fully aware of the concerns related to County Court judgments that follow parking charges and is considering how they can deliver standardised practice across all parking companies, eliminating unfair charges and reducing the instances of claims where the consumer may be unaware of a parking charge being applied’. ‘Where the claimant is unable to ascertain the defendant’s current postal address, the claimant may apply to the court for service at an alternative place. This may include service via an email address if the claimant and defendant have been in communication via those means and the court agrees this is appropriate’.

2.1.       If the court is not satisfied with above grounds, I may submit that the court should use its discretionary powers under CPR 13.3, as there is a profound prospect of defending this claim because of several reasons (Draft defence can be furnished on Court's orders).

2.2.       I believe the Claimant’s practice is a proof that parking companies’ conduct is not used as a deterrent for citizens, majority of which are law abiding, instead an impending and instantaneous launch of legal action against most of them leading to default judgment by court in 85% of the 1.1 million cases in year 2016/2017.

2.3.       I have asked the Premier Parking Logistics to look at their CCTV data/footage to prove the facts. They did not address this in 2019 and have not agreed to address it in my 2 emails I have sent them since I found out about my court judgment.

2.4.       In order to make informed decisions and statements in my defence as keeper of a vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.

2.5.       Considering the above I was unable to defend this claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

 

Statement of Truth:

I 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.

Full Name: XXXXX

(Defendant)

Dated XXXX 2021