Help please - CCJ & Debt Recovery – from unknown Parking fine

Jack5656

This is my updated (I hope final!) WS and Draft order to send let me know if ok and also...

....do I need to send a Draft Defence or not with the N244?

WITNESS STATEMENT

I am xxxx and I am the defendant in this matter. This is my supporting statement to my application dated 7 April 2022 requesting to:

a. Set aside the default judgment dated xx November 2018 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 Judgment against me as the Defendant on xx November 2018. I am aware that the Claimant is Civil Enforcement Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice from the x January 2018.

1.3. The claim form was served to a previous address and I thus was not aware of the Default Judgment until 4 April 2022 following a notification of an Notice of Debt Recovery from DCBL.

The address on the claim is xxxxxxxxxxxxxx. I moved to my new address on xx December 2017 and moved again to current address on xx July 2018. In support of this I have provided my tenancy offer, council tax bill, utility bill; DVLA letter and housing benefit letter. I also provide a council tax bill, utility bill, and mortgage offer letter for my move in July 2018.

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;

1.4.2 I discovered a CCJ was lodged onto my credit file on 4 April 2022.

1.4.3 On 5 April I contacted the County Court Business Centre to obtain relevant information relating to this default judgment.

1.4.4 On 7 April 2022 I submitted my case in order to set-aside this judgment 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 some 10 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

1.6.2 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.

1.6.3 The Defendant was 'there to be found' for the sake of a 29pence bulk Experian trace or similar very inexpensive and immediate credit reference agency address check. I would then have been notified of this judgment and could have taken action to prevent it.

1.6.4 I updated DVLA promptly after moving address on xx December 2017. In a phone call on 5 April 2022 DVLA advised me that the claimant obtained my old address from them on 15 January 2018. I had previously given DVLA my new address and DVLA advise they issued revised documents to me on 16 January 2018.

1.7 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.  The Defendant has no details of this claim, 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 xxxxx

1.8 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.

1.9 In the alternative, CPR 13.3 applies and there are very good reasons to set aside this exaggerated claim, which includes a disproportionate and indeed, false 'debt recovery' sum.  In fact, no debt recovery occurred nor cost the claimant any money whatsoever, in addition to £100 parking charge.  The Government has described the false fixed 'fee' of £70 as 'designed to extort money from motorists' in the new statutory Code of Practice this February, and has banned it.  The Defendant has good prospects of defending a claim, if served with one, but has seen no evidence, basis nor particulars of claim and the Claimant should be required to file afresh, if they believe they have a cause of action. 

1.10 Considering the above I was unable to defend this claim. I believe that the Default Judgment 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.

 

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.

signed ________

Date __________

DRAFT ORDER

UPON reading the defendant’s application dated 7 April 2022

IT IS ORDERED that:

 
1. The default judgment dated xx November 2018 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 Defendants costs of this application of £275 on an indemnity basis.

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

Coupon-mad

Looks fine.  No need for a defence yet, especially as you are saying the claim is dead and if they want to file afresh, you'd then defend it.  If asked by the Judge you'd need to know what your defence might be (some basic points about crappy signage, etc.) but I say you don't need an actual defence yet.

I don't think you need this, as it makes no sense in a final Order AFTER the CCJ has been set aside:

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

Jack5656

Coupon-mad said:

Looks fine.  No need for a defence yet, especially as you are saying the claim is dead and if they want to file afresh, you'd then defend it.  If asked by the Judge you'd need to know what your defence might be (some basic points about crappy signage, etc.) but I say you don't need an actual defence yet.

I don't think you need this, as it makes no sense in a final Order AFTER the CCJ has been set aside:

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

Excellent! I wiil take out that 4th point in the Draft Order.

Thank you so so much Coupon and everyone who has rallied round to help me produce this applicaition in such a short time. I am very grateful there are good people out there who are kind enough to help in this horrible situation.

My final question - I can't find a way to sign the N244 electrionically other than to type my signature = my name in a normal font - there is a restriction on the N244 pdf so I can't even change the font to italics.

Is it ok to send with signature as normal font (If not will have to print scan and convert back to a pdf)

Umkomaas

Sign a blank sheet of white paper, photo/scan the sig, crop it, save it, import it into your Word doc, save as a pdf. Should do the trick?

Jack5656

Umkomaas said:

Sign a blank sheet of white paper, photo/scan the sig, crop it, save it, import it into your Word doc, save as a pdf. Should do the trick?

That works fine with the a Word doc but no sadly no way to import I can see for the N244 onlinepdf

Also had a msg from soolin to say - ambassadors are not allowed to edit posts - and even if they could the site is currently broken and doesn’t allow them to do anything at all. I can message the main forum team - do you know who they are or how I contact them please?

ParkingMad

The thread below advises -

Please report all problem posts to forumteam@moneysavingexpert.com

https://forums.moneysavingexpert.com/discussion/6171850/edit-post/p4

You might find the edit (cog) button appears for you in a day or so, now that you have posted over 10 times. 

Here is a video showing how to add your signature to a pdf document using an iPhone or iPad. Hope it helps.

https://youtu.be/eNotP5BTAU8

Jack5656

I'm still unsure about the statement on N244 at no 3:

"This is a mandatory set aside situation pursuant to CPR 13.2 but the Defendant has also acted promptly and has good prospects of defending any claim from this Claimant who, the Defendant has ascertained, is a serial litigator of badly prepared parking cases with little evidence. Therefore, CPR 13.3 also applies."

Assuming this N244 is shared with CEL is saying they're a serial litigator of badly prepared parking cases just likely to antagonise them? Is it better to keep it to something like:

"This is a mandatory set aside situation pursuant to CPR 13.2 but the Defendant has also acted promptly and has good prospects of defending any claim from this Claimant. Therefore, CPR 13.3 also applies, to further support the application to set aside the CCJ. "

or 

"The Defendant seeks an order setting aside the judgment dated xxxxxx pursuant to CPR 13.

The Defendant seeks the order to set aside because he was unaware of the proceedings. The Claimant served proceedings at an address not used by the Defendant since xxxxx"

Coupon-mad

I think any of them! 

I wouldn't worry about antagonising the most prolific rogue parking firm causer of parking CCJs we've seen.  They have been shown by case after case (for many years) to be appalling at (seemingly) not bothering to check addresses and just filing claims to old addresses.

Jack5656

Good to know thanks Coupon - I will leave it as is then.

I'm hoping to email the N244, WS and Draft Order later today after re-reading it all again..

Do you recommend adding the claim number (CCJ number?) on the WS and Draft Order for identification?

Jack5656

Let's assume the judge sets the CCJ aside - are CEL likely to restart the process and send the original PCN to my current address (but not at an inflated amount!)? If that occurs can I choose to pay that PCN = end of story and no CCJ? Or am I commited to a 2nd hearing if judge uses a descretionary decision on basis I have a good chance to defend the claim?

My main question here is if you go to court for a 2nd hearing do you pay another £275 (on top of what was paid for set aside hearing), or is there nothing more to pay than £275 for the 2 hearings? I would hope claimant has to pay for another hearing?

Worst case sceanrio if judge does not set aside, or you lose at the 2nd hearing - can extra costs be added? Obviously I hope it is struck out before that but need to know what could happen.

I need to budget for all eventualities, so if I pay £275 now and £348 charge if unsuccessful - is there any chance of futher costs on top depending on outcomes at set aside and 2nd hearing?  

Many Thanks again.