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Help needed with set-aside (UKPC)

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Comments

  • msx999
    msx999 Posts: 28 Forumite
    Tenth Anniversary 10 Posts Name Dropper Combo Breaker
    Thanks Coupon-mad - already thick in the research of it all! 
  • msx999
    msx999 Posts: 28 Forumite
    Tenth Anniversary 10 Posts Name Dropper Combo Breaker
    edited 14 February 2022 at 3:27PM
    Here is my draft six-point order and witness statements - any critiques would be most appreciated. Again, I have used various threads to put this together, I hope it reads ok and makes sense. 

    DRAFT ORDER:

    UPON reading the defendant’s application dated XX/XX/XXXX

    It is ordered that:

    1. The judgment XXXXXXXX dated 30/09/2021 be set aside. 

    2. The claim struck out as the claim form having not been served within 4 months of issue

    3. The Claimant do pay the Defendant’s costs of this application £275, in addition £190 due to Defendant’s time in preparation (10 hours as a litigant in person at a rate of £19 per hour) and costs having to take time off work to attend court. 

    4.  The claim form was served to an incorrect address and the Claimant had no proper basis to assert they sent the claim to a last known address, where no enquiry was made to ensure that it was still in use and Defendant was "there to be found" on a simple directory enquiry check. The absence of any response to mandatory pre-action correspondence created at least the likelihood Defendant had moved which therefore mandated further enquiry.

    5. Claimant was not entitled to default judgment having failed to comply with basic enquiries to obtain a service address and having failed to serve on Defendant usual residential address.

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


    DRAFT WITNESS STATEMENT:

    1. I am XXXXX, the defendant in this matter. This is my witness statement to support my application dated XXXXXX requesting to:

    1. Set aside the default judgment dated 30/09/2021 as it was not properly served at my current address.

    2. Order for the claimant to pay the defendant £275 as reimbursement for the set aside fee. as well as additional costs as outlined in the draft order. 

    2. I logged into my credit score app on 31/02/2022 and discovered a CCJ on my credit file. 

    3. Upon calling the CCBC on 31/02/2022 the call handler gave me a summary of the claim, and sent these to me via e-mail

    4. Information was requested from UKPC Ltd about the CCJ on 01/02/2022. This was given to me the same day - and the CCJ relates to an unpaid parking charge from April 2016.

    5. The CCJ was filed under my previous address: XXXXXXXXXXXXXX. I have not lived at this address since March 2019.

    6. I moved from this address to my present address in April 2019. I have attached evidence showing my council tax confirmation from XXXX council (evidence B), registration on the electoral roll (evidence C and D), and a screenshot from the DVLA (evidence D) showing my licence status with corresponding dates and address which coincide with my change of address and timeline. 

    7. In order to save time and costs - I e-mailed the Claimant and their solicitor notifying them of their mistake and to see if they would agree to a set-aside with consent (see evidence A). Other than an e-mail from the solicitor of the Claimant asking me to confirm my details - I have not had a response to the points raised in the letter. I waited 14 working days before submitting the contested set-aside as this was the time-frame given in the solicitors auto-reply. I have had no response from UKPC Ltd. 

    8. Should the judgment be set-aside, I am confident I can robustly defend the original PCN charge. Letters seeking to appeal the initial PCN charge have been ignored by the parking company.

    9. The judgment amount of £308 - I have received no correspondence of any form to show the breakdown of the heavily inflated charges from an initial PCN of £60.

    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.


  • msx999
    msx999 Posts: 28 Forumite
    Tenth Anniversary 10 Posts Name Dropper Combo Breaker
    I'm not too sure about my draft order. I did stumble on a point made by @henrik777 about not to worry about how many points you actually have. See here: https://forums.moneysavingexpert.com/discussion/6279383/ccj-parking-fine-sent-to-old-address/p24 (4th post down). I understand that @henrik777 is an expert on set-asides.

    I have always been wondering why its a 'six' point order - why specifically six. It is my understanding that the order is what I want the judge to do - in light of this can I combine some of the points (specifically 1, 2, 4 and 5) so it reads more like this:

    1. The judgment XXXXXXXX dated 30/09/2021 be set aside as the claim form was served to an incorrect address and the Claimant was not entitled to default judgment (CPR 13.2) . Additionally, the claim should be struck out as the claim form having not been served within 4 months of issue

    2. The Claimant do pay the Defendant’s costs of this application £275, in addition £190 due to Defendant’s time in preparation (10 hours as a litigant in person at a rate of £19 per hour) and costs having to take time off work to attend court. 

    3. All enforcement be put on hold pending the outcome of the application.

    Additionally, any critique of the witness statement would be highly appreciated. 



  • paulr23
    paulr23 Posts: 127 Forumite
    Seventh Anniversary 100 Posts Name Dropper
    Any update on your application to the court? just curious
  • Coupon-mad
    Coupon-mad Posts: 155,729 Forumite
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    edited 10 March 2022 at 12:06AM
    A draft Order would not say 'should be' (just 'be struck out').

    The bit about staying enforcement shouldn't be in the Draft Order, it should be in the N244 where it asks what Order you are asking the court to make = set aside the CCJ and stay bailiff enforcement.

    WS looks OK, but because you hope the claim will be struck out as it's dead (meaning you won't have to defend it) you could add here:

    8. Should the judgment be set-aside but the claim itself not be considered dead, I am confident I can robustly defend the original PCN charge. Letters seeking to appeal the initial PCN charge have been ignored by the parking company.

    You should also add the authority of the Boxwood case (search the forum as that's all I can remember of the case name). 

    And I would add a paragraph from the template defence thread, about the fact adding false 'costs' has been declared by the Govt to be 'designed to extort money' and they've banned all add-ons.  My wording in the new Template Defence explains how it is relevant even to existing cases when you think about what the Govt has said, and why.


    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • msx999
    msx999 Posts: 28 Forumite
    Tenth Anniversary 10 Posts Name Dropper Combo Breaker
    @paulr23
    I submitted the application a few weeks ago - and recieved a letter stating its been transferred to the local county court and will be given a date.

    @Coupon-mad
    thanks for the feedback - your advice was sorely missed as I note you were away, unfortunately I already submitted everything so hopefully it will all be ok.

    On another point - 6 years since the original PCN is fast approaching (weeks away). How does the 6 year rule of debt being statute barred play into a CCJ set-aside?

  • Le_Kirk
    Le_Kirk Posts: 25,069 Forumite
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    They had six years to start a clam, which they clearly have done hence the judgment and now the set-aside.
  • Coupon-mad
    Coupon-mad Posts: 155,729 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Unless it wasn't served to the right address due to their lack of checks, in which case the claim is dead (forever) if the Judge agrees with you on that.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • msx999
    msx999 Posts: 28 Forumite
    Tenth Anniversary 10 Posts Name Dropper Combo Breaker
    well its something else to think about!

    I'm still waiting on my court date - hopefully it won't interfere with my holiday plans (which was more than 8 weeks after the initial application)
  • Coupon-mad
    Coupon-mad Posts: 155,729 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Enail the court the dates you can't do and ask them to avoid those dates (add a week either side for obvious reasons).
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
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