Surprise CCJ from Excel Parking Services

1505grandad

Check claimant's name in heading is as stated on claim form.

Coupon-mad

Only queries here are;
A. Whether they can legitimately claim costs for getting the CCJ, ie Elms legal fees, CCJ Court application fee? If so do I need to adapt 12, 15 or 16? Their claim is now £257. 

B. The photo on the ANPR looks like a petite female (ie my wife) more than me at 6' 5". Should we accept it as her rather than potentially be seen to be being awkward? Due to the time elapsed, I feel it is fair to assume we can not be expected to recall who was driving that day but a Judge may look and say that it is more likely a female.


C. Also, how do I get the PoC, I assume from the CCBC? This did not come with the SAR.

A- This is covered in the template defence.

B- Maybe, and she can then concede that point (later) after 'closer scrutiny' of the image.

C- State near the start that this is only a draft defence (to satisfy the court at CCJ set aside stage, if CPR13.2 is not established - mandatory set aside - and the Judge wishes to instead use the discretion of the court under CPR 13.3) because the Defendant has seen no particulars of claim and believes the claim should be dismissed for want of service anyway.

Olig777

@Le_Kirk
Thanks very much, two very relevant points made and much appreciated, will make these changes.


@1505grandad
Ever the keen eye! At least it wasn't Judg'e'ment which I note is one of your pet hates......or Defense!!


@Coupon-mad
Thanks very much for your answers to my questions, I dont know how you find the time but it is appreciated;

A. The reason I asked was because my case has gone further than some others (ie it has been to Court and Default Judgment awarded) so I wondered whether they could legitimately claim for that aspect, even though they have defectively served, but this is reassuring. 

B. Noted, closer scrutiny. 

C. We have asked the CCBC and been provided with the following as PoC;

THE CLAIM IS FOR A BREACH OF CONTRACT FOR BREACHING THE TERMS AND CONDITIONS SET ON PRIVATE LAND. THE DEFENDANT'S VEHICLE, ML12YBA, WAS IDENTIFIED IN THE NEWHALL WALK ON THE 28/01/2020 IN BREACH OF THE ADVERTISED TERMS AND CONDITIONS; NAMELY FAILURE TO PAY APPLICABLE TARIFF DUE BEFORE EXITING THE CAR PARK. AT ALL MATERIAL TIMES THE DEFENDANT WAS THE REGISTERED KEEPER AND/OR DRIVER. THE TERMS AND CONDITIONS UPON ENTERING PRIVATE LAND WERE CLEARLY DISPLAYED AT THE ENTRANCE AND IN PROMINENT LOCATIONS. THE SIGN WAS THE OFFER AND THE ACT OF ENTERING PRIVATE LAND WAS THE ACCEPTANCE OF THE OFFER HEREBY ENTERING INTO A CONTRACT BY CONDUCT. THE SIGNS SPECIFICALLY DETAIL THE TERMS AND CONDITIONS AND THE CONSEQUENCES OF FAILURE TO COMPLY, NAMELY A PARKING CHARGE NOTICE WILL BE ISSUED, AND THE DEFENDANT HAS FAILED TO SETTLE THE OUTSTANDING LIABILITY. THE CLAIMANT SEEKS THE RECOVERY OF THE PARKING CHARGE NOTICE, CONTRACTUAL COSTS AND INTEREST.

So I think I know but is this the PoC aspect that is covered in my #9 With regard to template statements, the Defendant observes after researching other parking cases, that the Particulars of Claim ('POC') set out a generic and incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) was served with a Letter of Claim.  The POC is sparse on facts about the allegation, making it difficult to respond in depth at this time.  


I could add at the start;

This is the Defendants Draft Defence as they have received scant information with regards to the Particulars of Claim and believes the claim should be dismissed for want of service anyway.


I intend to update 2.0 of the WS as I now have the SAR and PoC but ideally want to retain from ...if the Claimant believes....... Any thoughts?

Perhaps: The Def has recently managed to obtain limited details of this claim and the parking charge....

Original;

2.0 The Defendant has no details of this claim, nor the parking charge that it relates

to, therefore, 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 
XXXXXXXXXXXXX

If 2.0 is adapted how do I let the Courts know that this supersedes the previous statement submitted with the application?


Lastly, 

On my DO I used one of @Johnersh examples which suggested going for costs on an indemnity basis (which I like). Does this conflict with the line in the Draft Defence that asks for 'standard witness costs for attendance at Court, pursuant to CPR 27.14'



Other than these few points do we agree its ready for submission?

Once again, a huge thank you for everyone contributing.

Olig777

Anyone give me a steer on these last few points. Really want to get it sorted and submitted tomorrow as my deadline is the 11th.  

Coupon-mad

Your musings and suggested changes make sense.  It is your own defence, so make changes as you feel comfortable with.

On my DO I used one of @Johnersh examples which suggested going for costs on an indemnity basis (which I like). Does this conflict with the line in the Draft Defence that asks for 'standard witness costs for attendance at Court, pursuant to CPR 27.14'

Maybe, so you could add a line saying in addition, the Defendant seeks full costs on the indemnity basis, due to the Claimant's wholly unreasonable and vexatious conduct in litigation, which has caused the Defendant wasted time and costs and taken him/her away from more important daily work and family life.

And attach a costs assessment.

Olig777

Wonderful, thanks @Coupon-mad

For the WS changes, can I just write, this statement supersedes my previous statement dated xxxxxx?

I am aware that the generally accepted figure is £19 an hour. A rough guess would be at least 40 hours research/drafting (probably more) but then we’ve also had to explain/defend this CCJ to our mortgage advisor AND new mortgage facility so thats also ‘time’. Other than time and I assume travel to and parking at Court is there anything else for a costs assessment?

One thread I read suggested the Judge wasn’t too happy for the Def to be spoken for by lay rep (husband) which is similar to my situation. Is there any way to convince them or let them know in advance or will this be a bit of a DJ lottery? 

Many thanks all, I will be submitting tonight after these final few tweaks.

KeithP

Olig777 said:

One thread I read suggested the Judge wasn’t too happy for the Def to be spoken for by lay rep (husband) which is similar to my situation. Is there any way to convince them or let them know in advance or will this be a bit of a DJ lottery? 

Print off and take The Lay Representatives (Rights of Audience) Order 1999 to any hearing and point it out to the Judge if necessary.

Coupon-mad

I've lay repped several times and some Judges very obviously loved it and some clearly didn't.  But none refused.  You have to have a thick skin, a polite tone and a copy of the Lay Reps Order!

For the WS changes, can I just write, this statement supersedes my previous statement dated xxxxxx?

Only if you mean it to supersede the last WS?  As in, overwrites it completely?  Isn't it just an add-on?

Olig777

Thanks both,

All submitted in good time and looking forward to a Court date.

Anyone advise on my queries reference a costs assessment? 

Many thanks in advance.  

Umkomaas

Olig777 said:

Thanks both,

All submitted in good time and looking forward to a Court date.

Anyone advise on my queries reference a costs assessment? 

Many thanks in advance.  

You will need to itemise each element of your costs, examples such as:

Initial research to understand legalities x hours @ £19 litigant-in-person = 

Drafting Defence x hours @ £19 litigant-in-person = 

Drafting Witness Statement x hours @ £19 litigant-in-person = 

Meetings and discussions with mortgage advisor attempting to resolve the damage caused by the CCJ x hours @ £19 litigant-in-person = 

Time off work to attend the hearing x hours @ £19 litigant-in-person = 

Stationery, printing and postage =

Travel and parking costs for the court hearing =

You might get some of these, but the small claims court doesn't normally allow very much at all, if anything ......