Surprise CCJ from Excel Parking Services

Olig777

Hi All,

Having read the Newbie guidance would someone be kind enough to review the below, which are pretty much carbon copies of others that have been well regarded on here.

Very brief circs are that, on the 11.02.22 whilst we were on holiday abroad, my wife was advised she had a CCJ (since established from excel) following a mortgage credit check.

The default judgment was from the 06.05.21 for a PCN relating to an alleged breach on the 28.01.20. 

We moved address on the 14.02.20 and thus all correspondence has not found its way to us. We had set up a royal mail forwarding service but failed to update DVLA as quickly as we should (as we were temporarily with in laws waiting for our new house to complete). The V5C says 15.10.20 but we thought we had done it sooner than that, (Seem to recall DVLA COVID delays back then?) We did have issues with the Royal Mail forward service with mail going missing. My wife did complain but we cannot find a record of the complaint our end, it was likely a phone call. She has had regular contact with our buyer requesting if any mail has arrived since moving. 

Therefore I still hope a DJ would find in our favour for a (mandatory?) set aside. 

However, one aspect I am not sure of is whether we are expected to try for a non contested set aside with Excel in the first instance, on the basis of 13.2? ie will the DJ look unfavourably on us for going straight in as a contested set aside? The only options the court mentioned to us was to fill in the N244 which seems to suggest its automatically steering us down the contested route, at £275 costs? 

Anyhow, in relation to the parking breach itself, we have no recollection of the event or which of us was driving but in all honesty, our main objective here will be for the set aside as this will have massive impacts on my wife’s ability to conduct her business, if not successful. Obviously I can't raise a defence without knowledge of the alleged breach so I cant see what supporting evidence I can add into my WS at this stage. As the SAR could take a month, and I need to act swiftly, I see no other option than to rely on 13.2? but request the opportunity to raise a defence under 13.3? if refused. 

There is a part of me that feels that this is an abuse of process due to the time lapsed - something similar to limitation of proceedings. I mention it because how am I now supposed to look at quality of signage etc when it may have been replaced between now and then or their parking regulations may even have changed?

Anyway if someone can proof read the below that would be hugely appreciated;

 

Firstly draft SAR;

 

Xxxxx

Xxxxx

xxxxx

23.02.2022

Excel Parking Services

Dear Sir or Madam

Subject access request ( Data Protection Act 2018 / General Data Protection Regulations (GDPR)

 

Name & current address

Formerly of; Previous address

 

Please supply the data about me that I am entitled to under data protection law relating to myself.

 

Specifically, all correspondence, including but not limited to; photographs, copies of parking charge notices, copies of notice to keepers and any other evidence, relating to the assumed claim in respect of an unpaid Parking Charge Notice from the 28.01.20 issued to my previous residence, xxxxxxxxxxxxxx and the associated County Court Business Centre default judgement, reference xxxxxxxx.

 

I attach a copy of my V5C to confirm my identity. Please note you do not have my consent to retain this document, please dispose of it securely once you have read it. If you need any more data from me to confirm my identity please let me know as soon as possible. It may be helpful for you to know that data protection law requires you to respond to a request for data within one calendar month.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer, or relevant staff member. If you need advice on dealing with this request, the Information Commissioner’s Office can assist you. Its website is ico.org.uk or it can be contacted on 0303 123 1113.

 

Yours faithfully

Xxxxxx

 

Draft Order

 

IN THE COUNTY COURT AT: Northampton County Court Business Centre

EXCEL PARKING SERVICES LIMITED (Claimant)

And

MRS xxxxxxxxx (Defendant)


CLAIM No: xxxxxx



IT IS ORDERED that:

1. The default judgment dated 06.05.21 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 09/03/2022 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 23/03/2022

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

 

 

 

 

Draft Witness Statement

I am xxxxxxx and I am the defendant in this matter. This is my supporting statement to my application dated 23.02.22 requesting to:

a. Set aside the default judgment dated 06.05.21 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. Order for the claimant to pay the defendant £275 as reimbursement for the set aside fee.

DEFAULT JUDGMENT

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

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 06.05.21. I am aware that the Claimant is Excel Parking Services, and that the assumed claim is in respect of an unpaid Parking Charge Notice from the 28.01.20 at my then residence, xxxxxxxxxxxx. I wish for the opportunity to contest this charge for the reasons to be outlined in my defence.

1.3. The claim form was not served at my current address and thus, I was not aware of the Default Judgement until 11th February 2022 following a credit check. The address on the claim is xxxxxxxxxxxx. I left this address on the 14.02.21. I can produce the completion statement supporting this as xxx

1.4. 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;

1.4.1 I discovered a CCJ was lodged onto my credit file on the 11.02.22 whilst on holiday overseas. I can produce the email informing me of this from our mortgage lender as xxx

1.4.2 On the 11.02.22 and 15.02.22 I contacted the County Court Business Centre in an attempt to obtain relevant information relating to this default judgement but did not hear back. I made this attempt via email due to being overseas and can produce these emails as xxx and xxx

1.4.3 On returning to the UK, having not received a response, I telephoned the County Court Business Centre at the next opportunity, being the 21.02.22, to establish the relevant information.

1.4.4 On 23.02.22 I have wilfully submitted my case in order to set-aside this judgement and fairly present my case.

1.5. 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.

1.6. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) 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 over 12 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgement.

1.7. 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.

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.” Furtherance to points raised in 1.3 above.

1.8. 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 £275 from the claimant should this request be successful.

My main concerns with the above are; 

A. Giving them 14 days to respond and then me 14 days to compile a defence doesn't give me much time as I may well still be waiting for the SAR results to be returned but at the same time we want it dealt with quickly as we need to re-mortgage. 

B. Some of the references are rather old now (2016). Are there any newer versions I should be citing? Sir Oliver Heald has certainly hit the nail on the head with his comment!

C. My wife has to 'defend' this which she is losing sleep over. Could I attend the hearing with her, after all, it may have been me driving?!!

Many thanks for any advice you can give.

KeithP

Remove this sentence from the SAR...
If you need any more data from me to confirm my identity please let me know as soon as possible.
All it does is invite EPS to delay things.

Olig777

 @KeithP Noted, thanks

Coupon-mad

A. Giving them 14 days to respond and then me 14 days to compile a defence doesn't give me much time as I may well still be waiting for the SAR results to be returned but at the same time we want it dealt with quickly as we need to re-mortgage. .

The template defence can be adapted within half an hour by many new posters.  But you are not at defence stage yet, you are applying for a CCJ set aside (or the Defendant is, if that's not you).

B. Some of the references are rather old now (2016). Are there any newer versions I should be citing? Sir Oliver Heald has certainly hit the nail on the head with his comment!

Yes, for the newest versions, bin the above and instead search the forum for CCJ set aside dead 4 months.

C. My wife has to 'defend' this which she is losing sleep over. Could I attend the hearing with her, after all, it may have been me driving?!!

Yes but not as a witness, you'd be best as her lay representative but she MUST attend too (search the forum, saves us time and typing and you will leanr loads from existing cases where lay reps are speaking for Defendants!).

Olig777

Thanks @Coupon-mad can you give me a further steer on finding the 'CCJ set aside dead 4 months' post as thats not coming up. Is that the topic/title? I've tried searching for jonersh posts as well but cant locate that reference.

Does my wife just email Excel and request a consented set aside first of all, and simply advise them we moved address? 

Olig777

In addition, can I not just include in my email to them that, as this was defective service, they can either pay the £108 themselves for a non-contested set aside or I will look to seek costs for the contested route? ie I am making it clear that I am not paying for their mistake?

Coupon-mad

There are loads of posts and threads you can find. You need to choose 'discussions' and filter 'newest'

Olig777

Thanks @Coupon-mad, I have reviewed - I'm afraid there is nothing obvious but your comments telling others to look for 'CCJ set aside dead 4 months' and Boxwood. As others have commented it is a bit of a needle in a haystack situation - so many of us asking for help, hides the good nougats of advice we are all looking for.

I am torn between trying to get the non-contested set aside and then just pay them off or seeing if any of our insurance policies have legal cover for this. 

Anyhow, can you or anyone else on here pass any thoughts on the below which is my email for a non-contested set aside.

To whom this may concern;

 

I write in relation to (Judgment Ref)

 

I am the Defendant in this matter and have recently been apprised of your default judgment of the 06.05.21 and the respective CCJ you had awarded against me following an assumed claim in respect of an unpaid Parking Charge Notice from the 28.01.20 at my then residence; XXXXXXXXXXX.

 

I moved from this address on the 14.02.20 and have not received any correspondence in relation to your claim. It is therefore my belief that you have failed to adhere to CPR 6.9 (3) because you failed to show reasonable diligence in using an address that the I no longer reside at. You did not take reasonable steps to ascertain the address of my current residence despite having over 12 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgment and thus this is a mandatory set aside situation pursuant to CPR 13.2.

 

Given that more than 4 months have passed from issue of proceedings and service of the claim was defective (i.e. it was never served) I will submit that this particular claim is dead and argue that the period for service cannot be extended by any future application process. Further, that should you believe there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing me with the information required under the pre-action protocol for debt claims, issued this time to the correct address for service.

 

I would like to make you aware that I fully intend to submit an application for a contested set aside, should you not respond within 7 days of this email.

 

I fully intend to recover any Court fees and any associated costs for my time at any future Court hearings etc. 






Q1. Do I need to provide my new address at this stage?

Q2. Does the 7 day delay cause any issues with the Courts in terms of acting swiftly?



Many thanks, 

Olig777

Also, Is it worth adding 'without prejudice save as to costs' in the subject line or is this overkill?

Coupon-mad

I just did a search for newest discussions, keywords: 'four months dead' and a recent thread's worked example comes up as the 6th result. Please look again and I'm not linking it for the 'best intentions' reason that It's vital you can search the forum yourself throughout this process.

Olig777

Morning All, 

Just received the following letter from the Courts. I must say I am a little concerned with the comment reference the 'Non-receipt of papers' line. Anybody clarify this?

In addition, whilst I appreciate I can produce a defence based off other posts, the incident happened over 2 years ago and so we can't recall or establish what the rules were then or for example, what the signage was like. It seems a little unfair that we have to try and defend something from so long ago, due to their error in serving paperwork to the incorrect address. From memory, the car park used to be barriered, then they were removed and you got free 45 mins or longer if you shopped in the stores directly off the car park. It transpires my wife actually stayed there around 47mins. Ultimately we have no way of establishing the car park rules from two years ago so how can we defend and most importantly why is the Court letter reading as though we have to 'defend'. What if we dont want to defend the parking fine (we'd reluctantly pay the £60) but we cant afford to have the CCJ on my wifes credit file. I seem to recall that CPR 13.2 is a mandatory set aside regardless of us being able to achieve a defence?

As a side note, this letter is dated the 29th March and arrived yesterday so doesn't give us much time!



Upon an application by the defendant that a default judgment dated 06 May 2021 be set aside 

The defendant should note that the application must set out a defence setting out why the Defendant says it has a real prospect of successfully defending the claim which has been brought against them. 

The Defendant should note that the Non-receipt of papers does not in the absence of another explanation/defence as to why the debt is not due establish the criteria to set aside a judgment. 

And Upon the Defendant being put on notice by the Court that in the event of an unsuccessful application to set aside the default judgment, the claimant may ask the Defendant to pay the claimants costs in the application and in attending the hearing. 

If the defendant does not wish to pursue the application to set aside judgment after receiving this order, notice should be given to the Court and the claimant as soon as possible to reduce or prevent costs being incurred by the claimant which the defendant may be ordered to pay. 

WARNING - FAILURE TO COMPLY WITH THE DIRECTIONS BELOW MAY RESULT IN YOUR APPLICATION BEING STRUCK OUT 

It is ordered: 

1. The defendant must send to the court and the claimant a witness statement by 11 May 2022 which includes the following information:
a) On what date and in what circumstances the defendant became aware of the default judgment;

b) What action has been taken by the defendant after learning about the default judgment leading up to the application to set aside that judgment;

c) What correspondence was received and sent by the defendant prior, during and after the proceedings that led to the judgment in connection with the claim.

2. If the Defendant asserts that they have a real prospect of successfully defending the claim, the defendant must send to the Court and to the Claimant a copy of their defence to the claim by 11 May 2022. That defence must

comply with Part 16 of the Civil Procedure Rules and identify precisely what is admitted and what is denied, and

any dispute as to the value of the claim, giving a full explanation.

3. Both_ the witness statement (paragraph 1) and the defence (paragraph 2) must be signed by the defendant and verified by a statement of truth namely "I believe that the facts stated in this document 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".

4. The claimant may, if so advised, file a reply to the claimant's witness statement and/or defence. If the claimant chooses to do so, that document must be received by the Court and the defendant no later than 7 days before the hearing.

5. Upon compliance with paragraphs 1-3 above, the application will be referred to a District Judge to consider the listing of the application for a hearing.

6. Any party affected by this order may apply to have it set aside, varied or stayed within, but to do so the application must be made by 4pm on the day that is seven days after the date on which the order was served on the party making the application, and any applicable application fee paid, or a completed application for fee exemption to be received by the court, within that time.

Dated 29 March 2022

Any help would be greatly appreciated!

Oli