WIN - Another Loss for Gladstones

jaycee31

Hi All.  I have spent many hours reading the board with interest and hope to get some help with my own case.  I am attaching my draft witness statement which I hope is self explanatory and ask for constructive feedback and recommendations for anything else I should add before I submit with N244 before Christmas...

Many thanks in advance.

__________________________________________________________________________________________________________________________________________

IN THE XXXXXXXXXXXXXXXXX COUNTY COURT

Claim No. XXXXXXXX

BETWEEN:

MINSTER BAYWATCH LIMITED

Claimant
– and –
Defendant

XXXXXXXXXXXXXX
_________________________________

WITNESS STATEMENT OF XXXXXXXXXXXXXX
_________________________________

I , XXXXXXXXXXXXXX of XXXXXXXXXXXXXX, being the Defendant in this case state as follows;

1. I make this Witness Statement in support of the application for an order that the judgment in this case (Claim No. XXXXXXXX Judgment dated 6th December 2021) be set aside.

2. I understand that the Claimant obtained a default judgment against me as the Defendant on 6th December 2021. I am aware that the Claimant is Minster Baywatch Limited, and that the assumed claim is in respect of an unpaid Parking Charge Notice from (Removed by Forum Team).

 

3. I was not the registered keeper of the vehicle at the time of the alleged offence.  I was however the driver on the date in question.

 

4. The registered keeper of the vehicle (XXXXXXXXXXXXXX), was not aware of the existence of a PCN which was originally issued by the Claimant, until 30 April 2021, some 32 months after the event, when a Letter Before Claim was received by her from the Claimant’s solicitor Gladstone Solicitors, alleging non-payment.

 

5. No evidence has been supplied by the Claimant that a PCN Notice To Owner was issued within the requisite six month period after the alleged offence, throwing this into doubt.

 

6. The Letter Before Claim was contested on 6 May 2021 by providing receipted evidence uploaded to their website [EXHIBIT A], that the parking period concerned had been paid.  This was subsequently rejected by the Claimant’s solicitor as being insufficient payment for the period with ANPR photographic evidence being supplied.

 

7. The Claimant’s solicitor was advised by email [EXHIBIT B] on 10 June 2021 by the Defendant, that I was the driver of the vehicle on the date in question and a current address was provided.  I also challenged their assertions and rejected their claim outright, due to the time period being sufficient, with the allowance of 10 minutes grace period introduced by the Government on 6 April 2015.  I further suggested that this matter be drawn to a close.

 

8. The Claimant’s solicitor then queried by email on 1 July 2021 with the registered keeper who the driver was on the date in question, despite them already knowing this from 10 June 2021.  The Defendant replied on the same day by email [EXHIBIT C] that this information had already been supplied, asked them to stop harassing the registered keeper and direct all further correspondence to the Defendant.

 

9. I, the Defendant, moved to my current address, XXXXXXXXXXXXXX on 13th August 2021.  The Claimant was advised of this change of address in advance by email [EXHIBIT D] on 12th August 2021.

10. The claim form was not served at my current address (assuming it was served), and I thus was not aware of the default judgment until after it had been made in court.  This was on 15th December 2021 when I checked my credit score.

 

11. The address on the CCJ is XXXXXXXXXXXXXX.  I have never resided at this address nor have any financial or other association with it.

 

12. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim, despite being advised by me via email on 12th August 2021 [EXHIBIT A]

13. Furthermore, the Defendant was 'there to be found' via a simple credit report enquiry and should have been carried out to meet the requirements of Article 5(d) of GDPR.

 

14. 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;

14.1 I discovered a CCJ was lodged on my credit file on the 15th December 2021.

14.2 On 15th December 2021 I paid for a Trust Online search of the CCJ no: XXXXXXXX, which did indeed confirm that a default CCJ had been issued on 6th December 2021, as per advice on the GOV.UK website.

 

14.3 On 15th December 2021 I contacted the County Court Business Centre to obtain relevant information relating to this default judgment, who advised me the Claimant was Minster Baywatch Limited with the associated case detail.

14.4 On XX December 2021 I submitted the N244 in order to commence the set aside process to challenge the default judgment outcome and original PCN.

 

15. I believe the Claimant has not adhered to CPR 6.9 (3) where they have failed to show due diligence in using an address that the Defendant has no association with. The Claimant did not take reasonable steps to use the address of my current residence, despite the Claimant’s solicitor having this knowledge. This has led to the claim being incorrectly served to an unknown address and an irregular judgment.

16. Additionally, I submit that the Claimant has made an application for a default judgment on the basis that no acknowledgment of service or defence has been filed within the required time period which is wrong, and I believe that the court must therefore set aside the default judgment in accordance with CPR 13.2.

17. I therefore respectfully request that the Court;

a.    Sets aside the judgment in this claim as it was not served at my current address that the Claimant was fully aware of, but chose to ignore;

b.    Grants an order for the original claim to be dismissed;

c.     Grants an order for the Claimant to pay the Defendant £275 as full reimbursement for the N244 Application Fee.

Statement of Truth:

I, XXXXXXXXXXXXXX, the Defendant, believe that the facts stated in this timeline 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.

Signed: ________________________________
Dated: ________________________________

jaycee31

Anyone??!!

Coupon-mad

Hang on, a CCJ two weeks ago?  They served a claim to an old address last month or whenever, after you'd emailed them your new address in the Summer?

You also need a Draft Order.

jaycee31

Yep, absolutely.  I know.  Incredulous.

Thanks for the advice regarding Draft Order, I’ll draft one of those up.

Le_Kirk

jaycee31 said:

Yep, absolutely.  I know.  Incredulous.

Thanks for the advice regarding Draft Order, I’ll draft one of those up.

Some examples are to be found in recent set-aside threads or by reading some of @henrik777's posts

jaycee31

Thanks @Le_Kirk, I have done a copy and paste from another and tweaked...

IN THE COUNTY COURT

Claim No. XXXXXXXX

BETWEEN:

MINSTER BAYWATCH LIMITED

Claimant
– and –
Defendant

NAME
_________________________________

DRAFT ORDER
_________________________________

_____________________________________________________________________________

UPON reading the Defendant's application dated XXth December 2021 and the annexed witness statement of the Defendant XXXXXXXXXX dated XXth December 2021 

_____________________________________________________________________________

IT IS ORDERED that:

1. The judgment dated 6 December 2021 be set aside.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4pm on XXXXXX paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £275 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on XXXXXX

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £275 plus the Defendant's costs for attending the hearing.

 

6. That all enforcement be put on hold pending the outcome of the application.

Coupon-mad

That's quite an old example but probably the right version, since you can't use the 'new' forum argument (by @Johnersh) that the claim is dead, due to being filed over 4 months ago (I assume your claim form was filed/dated in October or November).

DO NOT ASK FOR COSTS TO BE RESERVED!

Flipping heck, you want the Defendant's full costs to be ordered to be paid by the Claimant to the Defendant within seven days of the Order, due to wholly unreasonable conduct in using an address they knew was not correct or current for service.

jaycee31

@Coupon-mad...  sorry for being dim, if para 2 is amended to state full costs awarded now, that rather makes the wording in the rest of the paras pointless doesn't it?  I assume however I still need to allow for the Claimant pursuing original claim.

Coupon-mad

Yes it does render the rest redundant.  Do a really simple Draft Order, you want the CCJ set aside and you absolutely must have your costs back.  Make sure you provide evidence with this application, that the PPC knew you'd moved and when.

jaycee31

@Coupon-mad. Ok cool, thanks.  So my WS is okay?  I’m hoping to still submit before Christmas so aside from the odd tweak I’m assuming it’s finished.

Coupon-mad

Yes as long as you evidence the move and the fact you told this Claimant.