CCJ - Parking fine / COA - Set Aside

holidayinn

Hi all,

I’ve been reading CCJ and set aside, now parking fine threads - but thought if I could gain some direct advice whilst I continue to research. Was sent here from the credit rating forum.

Yesterday, was looking into re-mortgaging, applied for an Agreement in Principle which was declined. So I decided to check credit scores and turns out my wife has a CCJ under her name from 2017. We called the courts, who directed us to solicitors. We queried with solicitors who advised it’s in relation to a parking fine. We moved out from this address in Jun 2017 and letters related to this parking fine were sent to the old address. I did update DVLA with new address details soon after we moved but I’m not sure exactly when.

I’m here to ask, what are our options?

I would like to get this CCJ taken off her credit file, what’s the best method to do this? I’ve been told to sign up to e.g. Equifax and use the dispute process? How about Set aside with consent, is this a route I could go down? Not sure how much this costs (£100?) or if we're eligible but seems like this would remove the CCJ quickly?

I’m also thinking, it’s been nearly 5 years this CCJ has been on her file, we could pay the charge and Sep 2023, it will be removed. However, I’m not sure how it will impact our present re-mortgaging situation? We could continue with our lender on the svr rate when our fixed deal comes to an end (June) as a worst case scenario, but that might be difficult to keep up with if it means sticking with it till 2023.

Hopefully, I've made myself clear and any assistance is really appreciated, thank you.

Le_Kirk

Our announcement in the first page of the forum "NEWBIES please read this first" should give you the info you require re set-asides.  It is currently £108 for application with consent and £275 for application without consent.  Since you are quite close to the end of the six year period it might just be a financial decision.  Add up the cost of the application plus the original PCN, as I am sure the PPC will want that if they agree to consent, versus the extra outlay of a SVR mortgage instead of a fixed term deal.  By the way it is not a fine, more of a speculative invoice!  You will need to contact the parking company (PPC) to see if they will agree to a set-aside with consent and what they will want in payment.  Once you have read a few set-aside threads on the forum you will be better informed.  Going for a set-aside without consent is also an option and, if it is determined that the CCJ should not have been issued you could get the original claim dismissed also and your set-aside fee repaid to you.

Coupon-mad

Let me guess:

Civil Enforcement?

or Excel or VCS?

Easy to set aside, usually.  Costs £275 fee as you are unlikely to get the parking sharks to consent and that SHOULD NEVER involve paying them off.

Search the forum for

'4 months dead Boxwood CCJ'

or a shorter combo of those keywords.

holidayinn

Thank you! It’s Parking and Property Management.

More details - We moved 090617, the date of the incident was 270617, v5 document ref no. is dated 280617. Should I include this info with the witness statement?

I think my next steps are to send SAR to PPM and then begin work on the N244 form? Should I just use their info@pandpmanagement.co.uk address?

KeithP

holidayinn said:

It’s Parking and Property Management.

I think my next steps are to send SAR to PPM and then begin work on the N244 form? Should I just use their info@pandpmanagement.co.uk address?

Yes, because their Privacy Policy, linked from the bottom of every page on their website, states...

holidayinn

Thanks All. So I emailed PAPM SAR on Friday evening, not got a response yet so I'm not 100% sure of all the details. Should I be calling County Court again and request an email with all details? (I've seen this on other threads, we couldn't get through Friday).

With the details I have I've constructed the draft order and witness statement, trying to use the recent templates which include the 4 month dead. Please could you take a look and advise of any amendments? Or parts I may need to re-think please? I've entered in italics, the main changes. Is the proof adequate? After this, I would need to complete the N244 with below and send to courts & pay fee. The below are mainly copy and paste's, have just swapped case details. 

DRAFT ORDER 

Upon reading the defendant’s application dated dd/03/2022

It is ordered that:

1. The judgment dated 28/11/2017 be set aside.

2. The Claimant to pay the Defendant’s costs of this application on an indemnity basis.

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4pm on dd/mm/yy the claim will be struck out without further order

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm dd/mm/yy.

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

6. Should the court reserve costs in the case as an alternative to paragraph 2, such costs of this application will become payable if the claimant discontinues its claim.

WITNESS STATEMENT

COUNTY COURT

Claim No. <<Case Number>>

BETWEEN:

Parking and Property Management Ltd (Claimant)

– and –

<<Full name of Defendant>> (Defendant)

_________________________________

WITNESS STATEMENT OF <<Full name of Defendant>>

________________________________

WITNESS STATEMENT:

1)    I am XXXXXXXX and I am the defendant in this matter. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2)    This is my supporting statement to my application dated xx/xx/xxxx requesting:

a)    Mandatory set aside for the Default Judgement dated xx/xx/xxxx as it was defectively served using an old address, pursuant to CPR 13.2.

b)    An order for the original claim to be dismissed as it was not served within 4 months of the issue, pursuant to CPR 7.5 and the Claimant having failed to apply for an extension, pursuant to CPR 7.6.

c)     An order for the claimant to pay the defendant £275 as reimbursement for the set aside fee plus the cost to attend the hearing and relevant litigation in person costs.

3)    I was not the registered keeper of the vehicle at the time of the alleged offence, I was insured as a named driver.

4)    I understand that the Claimant obtained a Default Judgement against me as the Defendant on xx/xx/xxxx. I am aware that the Claimant is Parking and Property Management Ltd and that the assumed claim of £xxx is in respect of unpaid Parking Charge Notice <<PCN Number>> at my OLD residence <<Address where the claim form was served>>.

5)    Since the claim form was not served at the correct address, I thus was not aware of the Default Judgement until xx/xx/xxxx, following a credit check made by myself during my remortgage application.

6)    I had moved out of that address in 9th June 2017, 6 months before the Default Judgement dated 28 November 2017. In support of this I have provide a scanned copy of V5C showing date 28th June 2017 (see Exhibit E01) and advised that PCN was raised 27th June 2017. I have also provided Utility Bill, Council Tax Change of Address Email Receipt and Electoral Register application to update details receipt.

7)    I would submit that an address obtained on or around MM 20xx is not reasonable knowledge after a significant time later (x months) when Default Judgement was obtained.

8)    I may also state that all my records were updated promptly by the time of the claim and it would have been a matter of a phone call or an email or a letter in post or a simple search with any credit bureau agencies such as Experian etc or simple check on Electoral register to confirm the correct address.

9)    I believe the Claimant has behaved unreasonably in pursuing a claim against me without confirming the Defendant’s correct contact details at the time of the claim. They had also failed to explore an ‘alternative place or method’ to inform/enquire the Defendant.

10)  On that basis, I believe the Claimant has not adhered to rule CPR 6.9 (3) and CPR 6.9 (4) where they had failed to show due diligence by using an address that the Defendant no longer resided. The claimant did not take reasonable steps to ascertain the correct address of my residence despite having some x months to conduct it. This has resulted in the claim being incorrectly served to an old address and an irregular Judgement. This leads to no service; they were not entitled to Judgement and the Court must set aside the claim as per CPR 13.2.

11)  To submit a set aside application, I have explored all available avenues (internet and County Court services) to gain further information in this matter.

12)  I have mailed Parking and Property Management Ltd for request of SAR on 18/06/2022 (see Exhibit E02) with V5C (see Exhibit E01) to prove my identity.

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, I have put my utmost effort to obtain necessary information and have managed to submit the case application within a <<week(s)>> of discovering the Default Judgement.

15)  According to publicly available information, my circumstances are just one of many hundreds, if not thousands, of examples. The parking industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and their families, and the justice system across the country.

16)  In support of the request for a mandatory set-aside I will rely upon Marshall & Rankine v Maggs [2006] EWCA Civ 20 (25 January 2006), specifically paras 68 – 70 per Dyson LJ, which are inclusive of the following key points:

a)    68.  “... As a matter of the ordinary meaning of words, to say "I know X" entails the proposition that "X is true". We do not see how the phrase "last known residence" can be extended to an address at which the individual to be served has never resided.

b)    69. We accept that the rules should, if possible, be interpreted in a practical way which promotes certainty and minimises the risk of satellite litigation. This does not, however, warrant rewriting the rules so as to make them bear a meaning which they plainly do not have. Nor do we see how interpolating the words "or reasonably believed" in the phrase "the address known to be last residence of the individual" adds to certainty or reduces the risk of satellite litigation.

c)     70. It follows in our judgement that the judge was right to hold that service was not effected on the defendant's last known residence for the simple reason that he had never resided at 47 Hays Mews.”

17)  I rely upon the following authorities to support that claim is defective as it was not served to a “last known address”:

a)    HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

b)    HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)

18)  In support of the request that the claim be dismissed due to claim not being served within 4 months of issue and the claimant having failed to apply for an extension I rely again upon Marshall & Rankine v Maggs [2006] EWCA Civ 20 (25 January 2006), specifically paras 100-105 which are inclusive of the following key points:

a)    100. Service of the claim form is a crucial step in the proceedings. The rules are designed to ensure, so far as possible, that the claim form is brought to the attention of the defendant, and where he is represented, his legal representatives. Normally, this must be done within 4 months of the date of issue. CPR 7.6 permits an extension of time for service. If an application to extend time is made after the time for service has expired, the CPR 7.6(3) pre-conditions must be satisfied.

b)    101. […] If a claimant purports to serve on an address which he mistakenly believes is the last known residence of the defendant, it is therefore necessary to consider the reasonableness of his belief that the address is indeed the defendant's last known residence.

c)     102. […] In many cases, the claimant will know the address for certain. Where the position is less clear, a direct request of the defendant, or his legal representatives (if they do not have instructions to accept service) may yield an answer. Other enquiries may have to be made.

d)    103. But the present case shows how dangerous it can be to make assumptions. In our judgement, the first claimant did not have a reasonable basis for concluding that 47 Hays Mews was the defendant's last known residence. He did not know that it was his last known residence. He assumed that it was. He had no real basis for believing that it was the defendant's residence.

e)    104. […]  As the judge pointed out at para 77 of his judgement, there were other steps that the claimants could have taken if time had permitted: see para 89 above. Since the defendant was the director of a number of companies, another possible step would have been to carry out an on-line search of the Companies House directors' database.

f)     105. Exercising the discretion given by CPR 7.6(2) afresh, we conclude that this is not a case in which it would be right to extend time for service of the claim form. It follows that the claimant's appeal must be dismissed.

19)  I have also read the consultation on Default County Court Judgements by Ministry of Justice published 21 February 2018 and it makes an insightful read. Some excerpts are: ‘the claimant must consider whether there is an alternative place or method by which the claim may be served’. And, ‘Department for Communities and Local Government (DCLG) is reforming parking practices and has already taken steps to tackle rogue private parking operators, including banning wheel clamping and towing. DCLG is fully aware of the concerns related to County Court Judgements that follow parking charges and is considering how they can deliver standardised practice across all parking companies, eliminating unfair charges and reducing the instances of claims where the consumer may be unaware of a parking charge being applied’. ‘Where the claimant is unable to ascertain the defendant’s current postal address, the claimant may apply to the Court for service at an alternative place. This may include service via an email address if the claimant and defendant have been in communication via those means and the Court agrees this is appropriate’.

20)  I believe the Claimant’s practice is a clear example that parking companies’ conduct is not anymore used as a deterrent for citizens to park insensibly, majority of which are law abiding, instead an impending and instantaneous launch of legal action against most of them, leading to default Judgement by Court in 85% of the 1.1 million cases in year 2016/2017, and majority of these were parking tickets.

21)  Considering all above I submit that the Claimant has not met the service requirements of CPR 6.9 and 7.5. respectively:

a)    Service has not been effected at a valid address and,

b)    For want of valid service, these proceedings have not been served within 4 months of issue.

22)  If there was a case that the Court might not be satisfied on above grounds, I may submit that the Court should use its discretionary powers under CPR 13.3, as there is a profound prospect of defending this claim because of several reasons (draft defence can be furnished on Court’s orders).

23)  I respectfully request the Court that the Default Judgement against me should be set aside and the claim should be dismissed in its entirety. I request the Court to kindly consider the reimbursement of the fee of £275 plus the cost to attend the hearing and relevant litigation in person costs from the Claimant should this request be successful.

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.

 Full Name: <<Full Name of Defendant>>

(Defendant)

Dated: xx/xx/20xx

Le_Kirk

If you are using the 4-month dead rule, you have used the wrong draft order.  You should use one similar to this: -

Upon reading the Defendant's application and the annexed witness statement dated NN Month YYYY

IT IS ORDERED that:

1. The default judgment dated XXXX2022 be set aside pursuant to CPR 13.2.

2. Pursuant to the Case Management powers of the Court under CPR 3.4(1) and the requirement for service of proceedings under CPR 7.5(1) the Claimant's claim is struck out for want of service within 4 months of issue.

3. The Claimant do pay the defendant's costs and consequential costs of the application.

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

holidayinn

Thanks Le_Kirk, will look into that and change.

I've just received further details from PAPM. They've provided some info and I'm wondering if this makes any difference to my plans? If anyone could please advise.

1 - There was a PCN stuck to the windscreen.
2 - My wife contacted PAPM to try and appeal the PCN via email, looks like this was done end of July. Seems like she used the form via website, where it asks for address, she put in the old address. Could probably have used this opportunity to inform the of new address, but wasn't done. 

Can I carry on with the argument the CCJ was sent to the old address? And still apply the 4 month dead rule?
 

Coupon-mad

Yes.  This does make it slightly more difficult to argue, but they should have checked.

holidayinn

Thanks Coupon-mad!

I've used the draft order suggested by le_Kirk, as per below. Please could someone review below and the witness statement above? Would be most appreciated - really kind people who lead this group.

Upon reading the Defendant's application and witness statement dated XX March 2022

IT IS ORDERED that:

1. The default judgment dated XXXX2017 be set aside pursuant to CPR 13.2.

2. Pursuant to the Case Management powers of the Court under CPR 3.4(1) and the requirement for service of proceedings under CPR 7.5(1) the Claimant's claim is struck out for want of service within 4 months of issue.

3. The Claimant does pay the defendant's costs and consequential costs of the application.

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

Le_Kirk

holidayinn said:

3. The Claimant does do pay the defendant's costs and consequential costs of the application.

It seems (it do seem) strange and I queried it when I first came across it but the word is "do"; it's a legal law-speak thing!