Surprise CCJ from Parking Eye wanting to get it set aside and overturn the original PCN

Redx

If you want to contest the original PCN and claim , it's the contested route , all or nothing

With consent usually means that you pay for everything and they rubber stamp it

Coupon-mad

And no you don't do standard stuff like acknowledge a claim at set aside stage.

aMulqus

Hello I have finally got a date for the court hearing to get the CCJ set aside.

It is happening on Wednesday. I have also had an email direct from Parking eye with their defence and why the CCJ should not be set aside.

I would really appreciate any feedback on how I should respond to their case at the hearing. 

My feeling is that this is just their obvious next step but of course it is a bit scary as I am not a lawyer and hoping that I am going to be able to hold my own during the hearing.

Here is a link to their defence document, which has been redacted of info:

hxxps://www.dropbox.com/s/hm9or43hkuyxhsu/Parking%20Eye%20defence.pdf?dl=0

Coupon-mad

Read the WHOLE thread by @Jack5656 if your case to set aside is about the parking firm not using your current address.

There is case law to say that an unserved claim is 'dead' and that's been discussed just the other week on that thread, with 4 authorities as case law.

You also need to put into evidence (as well as the 4 transcripts) the 2020 BPA Code of Practice because ParkingEye took a YEAR to bother to file a claim and have said nothing at all to evidence that they carried out any soft trace in 2021 (which would have identified your new address).  If they'd done that, it would be in their evidence but it isn't. They breached the BPA CoP, then.

Basically, you need a skeleton argument (file and serve by email tomorrow!) as seen in Jack5656's thread.

and in this one by @Brokenchief
https://forums.moneysavingexpert.com/discussion/comment/79391866/#Comment_79391866

...and in this one by @Harvez63
https://forums.moneysavingexpert.com/discussion/comment/79418626/#Comment_79418626

The only difference with that last example skelly is that Harvez63 didn't need to append the BPA CoP as well.

YOU DO!

A parking firm cannot assume that an address that's a year old is good for service, especially when you were previously engaging by appealing in 2020, yet silent to a LBCCC in 2021. That is reason enough to believe the person may not be at that address a year later, as you weren't.  Even if you'd changed your car reg DVLA address on your logbook in the meantime (DID YOU?) then ParkingEye could still not have obtained that address because they are not allowed to ask the DVLA twice.  That's why the BPA CoP makes it mandatory that checks must be made. In 2021. Immediately prior to litigation.

When you appealed to ParkingEye and POPLA, on both online submissions you had to put your address. Important: Which address did you put?  

Why would you have put in an old address in when appealing, which is what they are saying?

KeithP

This link works for me...

https://www.dropbox.com/s/hm9or43hkuyxhsu/Parking Eye defence.pdf?dl=0

KeithP

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henrik777

It is our position that the need for this application has entirely arisen due to the Defendant’s inaction in failing to keep their contact details up to date with the Claimant

1. Is it even true that you didn't give them the new address ? (During appeal?)
2. They haven't countered the assertation that the claim form was returned to sender or admitted they got it back. (Of course they might try and claim there is no EXPLICIT statement that it was returned just that some mail was)

The Defendant’s principle reason for applying to have judgment set aside is that they had no knowledge of the court proceedings. Parkingeye would clarify that the Defendant was aware of the Parking Charge as they had responded to the Parking Charge Notice and confirmed their current address at the time

Substitute neighbours dispute for parking charge then ask yourself, is knowledge of a dispute with your neighbour knowledge that service of court papers have been sent ? Weasel words.


The address used by the Claimant is the address as held by the DVLA for the Registered Keeper of the vehicle and was also confirmed by the Defendant in their appeal

1. Was it ?
2. Do the court rules not matter ?
3. If the court papers were returned they're screwed.

PROMPTNESS

17.Parkingeyesubmit that the application has not been made promptly and that the lateness of the application should be found to be fatal to the application pursuant to CPR 13.3(2).Parkingeye can confirm that Judgment was entered on or around21stSeptember 2021, but that the application is dated the 02nd March 2022


How dare you not respond to something you weren't aware of It's promptness from when you became aware. This is not even controversial. Weasel words.







Supplementary thought


The signage clearly conveys that by remaining within the car park, the motorist becomes bound by the terms and conditions of parking. Parkingeye operates a grace period on all sites, which gives the motorist time to enter a car park, park, and establish whether or not they wish to be bound by the terms and conditions of parking. These grace periods are sufficient for this purpose


When is the contract started ? If when passing camera then it's a tricky argument to add further terms after this point (Thornton v Shoe Lane). At what point did they "advertise" the charge ?

If it starts when parked then they have no contrary evidence to yours and there's no breach.

Brokenchief

As requested by @Coupon-mad

Here's my skelly long with PDF files at bottom.

Claim No.:  XXX
Between
XXX
(Claimant) 
- and -  
XXX
 (Defendant)
_________________
SKELETON ARGUMENT
 
1 Under CPR 13.2 The court must set aside a judgment entered under part 12 if judgment was wrongly entered.  Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside. As the defendant did not give an address to the claimant at which the claim could be served at (because the defendant was not asked), CPR 6.9 applies. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."
2. Given that more than 4 months has passed from issue of proceedings and service of the claim was defective (i.e. it was never served) the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process.  If the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct address for service for this Defendant, which is XXX.
2.2 There are several authorities for this, including the judgment in Boxwood [2021] EWHC 947 (TCC) (please see attached Boxwood.pdf)  , which is a reminder of the strictness of the requirements of CPR 7.6 and how difficult it is to use other parts of the Civil Procedure Rules to rectify a failure to serve the claim form within the requisite period: “A claimant is not entitled to rely on the wide, general powers under CPR 3.10 or CPR 3.9 to circumvent the specific conditions set out in CPR 7.6(3) for extending the period for service of a claim form.
2.3 In Vinos v Marks & Spencer plc [2001] 3 All ER 784 (please see attached Vinos.pdf)  the Court of Appeal considered whether any extension of time should be granted under CPR 7.6 in circumstances where the defendant had been notified of the issue of a claim form but the claim form had not been served within four months as required by CPR 7.5 and the application was made after expiry of that period. The court refused to grant relief on the basis that it did not have power to do so.
2.4 In judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch)  (please see attached Croke.pdf) the claimant was one day late in properly serving the Particulars of Claim to the Defendant and the claimant’s application for relief from sanctions was refused. In section 65 of the transcript of the trial (which is attached) Deputy Master Marsh stated “The defendants were entitled to know within the four month period specified in the CPR whether a claim had been made against them and to be able to understand that claim. [...] Unless an extension of time is granted, the claim will cease to have any validity and will be struck out." 
2.5 In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) (please see attached Pipenbrock.pdf) the High Court refused the Claimant’s application for a retrospective extension of time to serve a Claim Form after the Claimant failed to demonstrate they took all reasonable steps to serve the Claim form in the period of its validity.
“Ultimately, the problem was that the Claimant had made no attempt to serve in accordance with the rules…Although I sympathise with the Claimant that the consequences for him of the error of not validly serving the Claim Form will be serious, there is nothing that really separates his case from many others who have made similar mistakes when attempting to serve a Claim Form…I am afraid, in this case, the responsibility for the failure validly to serve the Claim Form rests solely with the Claimant’s side…
In light of my conclusions above, having refused the applications made under CPR 7.6, 6.15 and 6.16, there is not a residual self-standing power available under CPR 3.9 to relieve the claimant of the “sanction” that, as a result of his failure to validly to serve the Claim Form during its period of validity, it has now lapsed. The term “sanction” is inapt because it would, in theory, be possible for the Claimant to issue and validly serve a fresh Claim Form. The obstacle standing in the way of a claim is not any sanction imposed by the Court but the fact that the limitation period for defamation and malicious falsehood has expired…
Finally, the Claimant seeks an order under CPR 3.10 remedying his error in not validly serving the Claim Form. The Defendants submit that CPR 3.10 cannot rescue the Claimant. This general provision does not enable the Court to do what CPR 7.6(3) forbids: Vinos -v- Marks & Spencer plc [2001] 3 All ER 784; [2001] CP Rep 12 [20].”
Mr Justice Nicklin concluded, “The Claim Form was not served during its period of validity. In consequence, the Court has no jurisdiction over the Claimant’s claim. It follows that I should also formally dismiss the Claimant’s application for summary judgment.”
4. DVLA address data may not be accurate. DVLA data is provided for a single (very limited) reason, so a parking operator can invite the keeper to name the driver or to pay, or to inform the keeper they will be liable if not, and about their right to appeal.
4.2. The system is called 'KADOE' (Keeper On Date of Event) because it is a brief 'snapshot in time' address to enable a parking firm to send a Notice. Operators are only allowed to ask the DVLA once, hence the code of practice requires reasonable steps are taken to check address details are current before litigation. Even if a motorist later updated a VC5 logbook with a new address (or if the DVLA failed to note a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.
4.3. The DVLA keeper data may be outdated (i.e. the keeper cannot be reached at that address) for millions of motorists as reported in Birmingham Live on 3 November 2021. The parking industry know this, hence Codes of Practice direct that further address checks must be made. This is further evidence that DVLA address data should not be solely relied upon, especially with DVLA processing delays.
4.4  The KADOE address is not provided by the DVLA as a 'court claim service address' and cannot be relied upon, because it's an address where the vehicle was kept at a historical point in time (which may not be where the keeper lives; it's where the car was reported 'kept' last time the DVLA heard).
4.5  There is no safe presumption that a DVLA vehicle address is or was a valid address where a Defendant can be served, especially months or years later, especially where there is reason to believe letters are not being received. Silence after sending a Notice to Keeper, a reminder and then a Letter before Claim is a clear indicator that the keeper may not live there.
4.6 A claim sent to an old DVLA address with no soft trace checks (costing as low as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the BPA Code of Practice and fails to satisfy the specific 'pre-action Protocol for debt claims' and is in breach of the CPRs about the obligation to take 'reasonable steps' to check a Defendant's address so that service is effective.
5.  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.”
 
I believe that the facts stated in this Skeleton Argument are true.
NAME DATE

https://www.keepandshare.com/doc15/25449/boxwood-pdf-447k?da=y
https://www.keepandshare.com/doc15/25450/bpa-pdf-871k?da=y
https://www.keepandshare.com/doc15/25451/croke-pdf-304k?da=y
https://www.keepandshare.com/doc15/25452/pipenbrock-pdf-383k?da=y
https://www.keepandshare.com/doc15/25453/vinos-pdf-209k?da=y

Coupon-mad

@aMulqus

There you have it.  A pre-written version plus the 5 attachments you need!

URGENT: adapt that today with headings to suit your case and Email that off to the local court (NOT CCBC) and copy in:

enforcement@parkingeye.co.uk

You will need to read the BPA CoP to find the paragraph which says that operators MUST take steps to check details before filing a claim.

This is because a DVLA address where a car is 'kept' is not necessarily current or correct a year later nor is it even required to be a residential address, hence why the BPA doesn't let their members just use it unchecked, for court claims.

aMulqus

An enormous amount of gratitude for sharing all of that.

And all the advice. 

I have sent off the skeleton argument to the court and Parking eye.

Feeling pretty nervous about tomorrow as never been through a court hearing before.

But hoping that sanity prevails and this horrible matter is finally put to rest or at least the CCJ is set aside and then I can move forward to actually defending my case.

I will of course update how it all goes.