Applying for a CCJ Set aside from Parkingeye Motorway Services overstay Parking offence

KeithP

jonx12 said:

What should I refer to it as? 

Incident or event are two possibilities. There are surely others.
In fact you used a third alternative in paragraph 5.

Coupon-mad

 although in the schedule of the Tomlin order it is ordered that I 'pay within 14 days of receiving the sealed court order.' 

Then you can't use that Tomlin Order.  Unless you are happy to give up and pay them off to make it go away...

You want to set the CCJ aside (citing CPR 13.2 and alternatively, 13.3; neither of which I saw quoted in your statement?) then dispute the claim, not pay it, surely?

jonx12

Then you can't use that Tomlin Order.  Unless you are happy to give up and pay them off to make it go away...

You want to set the CCJ aside (citing CPR 13.2 and alternatively, 13.3; neither of which I saw quoted in your statement?) then dispute the claim, not pay it, surely?

I'm applying to the courts for a set aside with consent so I am paying the charge but also hoping I can get the judgement set aside rather than satisfied citing CPR 13 as the reason which I quoted in my N244, should I also add it also in my witness statement?

Is the Tomlin order usable in this case?

jonx12

Here's the Tomlin order:

Coupon-mad

You can use it in that case (no guarantee the court will agree to set aside because a Judge can still say no) but some of the stuff in your WS talked about disputing the charge.  That's why I thought you wanted to defend it.

Go through your WS and add a quote of why CPR 13.2 applies and refer to the Tomlin Order.  Remove stuff about wanting to fight the PCN.

jonx12

Coupon-mad said:

You can use it in that case (no guarantee the court will agree to set aside because a Judge can still say no) but some of the stuff in your WS talked about disputing the charge.  That's why I thought you wanted to defend it.

Go through your WS and add a quote of why CPR 13.2 applies and refer to the Tomlin Order.  Remove stuff about wanting to fight the PCN.

Sorry - I've read through my WS statement and I can't find any paragraph where I'm disputing the charge? 

I've added this to my WS:

10. CPR 13.2 states The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied.

10.1. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details at the time of the claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside pursuant to CPR 13.2.

Coupon-mad

You need to also refer to the attached Tomlin Order and say both parties have come to an agreement about settlement and trust that the court agrees to set aside the CCJ under the circumstances (defective service pursuant to CPR 13.2).

I can't recall what I saw that made me think your WS said something suggesting you wanted a set aside so you could then move onto defending the claim.

Can you show us your full new draft here?

jonx12

Coupon-mad said:

You need to also refer to the attached Tomlin Order and say both parties have come to an agreement about settlement and trust that the court agrees to set aside the CCJ under the circumstances (defective service pursuant to CPR 13.2).

I can't recall what I saw that made me think your WS said something suggesting you wanted a set aside so you could then move onto defending the claim.

Can you show us your full new draft here?

One note: I don't know whether to apply for CPR 13.2 or CPR 13.3 as Parkingeye do not agree to defective service as they  checked my address with the DVLA and a credit agency which both replied the same address. (I didn't update my electoral address straight away after changing address). Is two checks sufficient for a judge to dismiss CPR 13.2? 

Current witness statement below:

WITNESS STATEMENT

1. I am XXX and I am the Defendant in this matter. This is my supporting statement to my application dated 10/01/2022 requesting to set aside with consent the default judgment dated 28/09/2020 as the claim form was not properly served at my current address and was served using an old address which the defendant hasn’t lived in since 01/11/2019.

2. The facts and matters set out in this statement are within my own knowledge unless otherwise stated, and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

DEFAULT JUDGMENT

3. I was the registered keeper of the vehicle at the time of the alleged event.

4. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 28/09/2020. I am aware that the Claimant is Parkingeye, and that the assumed claim is in respect of an unpaid Parking Charge Notice dated 07/12/2019.

5. It should be noted; there was not a PCN affixed to my vehicle on the date of the parking event on 07/12/2019.

6. The claim form was not served at my then current address and I thus was not aware of the Default Judgment until 02/12/2021 following a credit check of my credit report; as found in Schedule (1). 

7. In the afternoon of 02/12/2021, I contacted Northampton County Court Business Centre for more information. This is when I was informed that the Claimant is ParkingEye Limited and became aware of the PCN.

7.1. NCCBC have confirmed that the claim form was not served at my then-current address and I thus was not aware of the CCJ until 02/12/2021 when I checked my credit report.

7.2. I contacted the Claimant via email on 02/12/2021 to discuss if this matter could be resolved without any unnecessary time and cost to the Court.

7.3 The claimant and I came to an agreement to settle outside of the court. Attached is a signed Tomlin order which the claimant sent me via email on 04/01/2022 to evidence their consent to the set aside application. I trust that the court agrees to set aside the CCJ under the circumstances pursuant to CPR 13.

8. The address on the claim is XXXX. I moved to my then-current address of XXXX on 01/11/2019. In support of this I have provided a copy of my tenancy agreement, an end of tenancy energy bill notification, a drivers license address change application, alongside a council tax and utility bill (Schedule 2)

8.1 I did not have any postal forwarding services set up nor did I have access to the mailbox of XXX beyond 01/11/2019.

9 The claimant has failed to prove reasonable steps taken to ascertain the address of the defendant’s current residence or place of business as outlined in Civil Procedure Rules 6.9 (3)-(4):

(3) Where a claimant has reason to believe that the address of the defendant… is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant – (a) ascertains the defendant’s current address, the claim form must be served at that address; or (b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is – (i) an alternative place where; or (ii) an alternative method by which, a service may be effected’.

9.1 The claimant should assume that lapse of time, or a failure to respond to correspondence, gives rise to a risk that the defendant has moved.

9.2 The claimant has no correspondence from the defendant to allow them to assume the address was still current;

9.3. As I had updated my driving licence, utilities, council tax, car insurance policy and billing address to reflect my new address, this indicates that The Claimant did not take ‘reasonable steps’, as required by the above, to ascertain my current place of residence and instead relied solely on V5C information held by the DVLA (Schedule 3).

9.4. BPA Code of Practice Version 7, section 23.1c, as was relevant at the time of alleged parking, states, ‘Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the person being written to is the correct party’. This is also stated in BPA CoP Version 8, as introduced in January 2020.

9.5. Thus, I believe the Claimant has not adhered to CPR 6.9 (3) or the requirements established by the BPA CoP as, despite having had no response from me between 07/12/2019 and the time of submitting the LBC, the Claimant did not take reasonable action to ascertain my current address when they had some 9 months to do so. This could have been achieved by performing a simple trace, for which I was available to be found at all times as demonstrated by my updated utilities, insurance and drivers license address change, in addition to my correct address at the time being recorded on my credit file (Schedule 4 and 5). This has led to the claim being incorrectly served to and old address and an irregular judgement. 

9.6. According to publicly available information, my circumstances are far from being unique. 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.

9.7. Furthermore, former 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."

9.8. 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.”

10. CPR 13.2 states The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied.

10.1. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details at the time of the claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside pursuant to CPR 13.

11. The implications from this incident are causing the defendant an impact way beyond the value of the claim and the original value of the parking tariff.

12. 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;

12.1. Upon discovering the CCJ I contacted the claimant to resolve the matter without any unnecessary time and cost to the court therefore on 05/01/2022 I have submitted my case in order to set-aside this judgment and fairly present my case.

12.2  I (the defendant) have always paid bills on time, adhered to credit agreements and have never knowingly avoided paying debts, which is demonstrated by all accounts being in good standing as reported on the defendant’s credit file (Schedule 3)

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.

Coupon-mad

they  checked my address with the DVLA and a credit agency which both replied the same address. 

Did they send that CRA return to you in a SAR or did they just say it returned the same address?   Of course it did, but did it also return your CURRENT address is the question! 

Get that evidence but don't wait about for it.

1505grandad

Just checking:-

Para 12.1  -  "............... therefore on 05/01/2022 I have submitted my case in order to set-aside this judgment and fairly present my case."

trhat the date will be amended accordingly.