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

Coupon-mad

You must add the claim number to the top of everything.  An example of how a properly headed WS looks is in the case by @jrhys last year (not a CCJ set aside WS but his one shows the whole WS including headers).

There's no costs risk in small claims unless a party acts 'wholly unreasonably' such as not attending a hearing.  Setting aside a badly served CCJ is not unreasonable conduct!

Best case scenario, some Judges agree to the CCJ set aside the minute they read your papers and no 1st hearing even happens!

And hopefully they use your Draft Order and tell the Claimant to pay your £275 because they were unreasonable in filing the claim to an old address. 

Most cases do have a first hearing and most Judges grasp it quickly and hopefully also see the point about an improperly served claim being 'dead' after 4 months.  That would end it all and CEL's only option would be to file a fresh claim.  Never seen them do that.

If you have the CCJ set aside but the Judge doesn't get the 'Boxwood' authority argument, then you will have time to provide a defence (and then we win cases 99% of the time here).

No costs risk.  They pay for the hearing of their case against you but most often, CEL discontinue.  Even if they don't and you lose the PCN hearing, the sum a Judge would award would be about £200 (the PCN plus issue fee and hearing fee and a capped fifty quid for legal costs).  

Not £348.  That's extortionate.  Includes the Govt-banned £70 which, whilst the new statutory Code is not retrospective, has now declared the add-on for fake 'debt recovery fees' to be 'designed to extort money from motorists'.  We can't see a judge allowing it if people point that out!

Worst case scenario: a clueless Judge refuses the set aside and the CCJ remains and you'd probably pay it off to avoid issues.  That marks it 'satisfied' but it stays on your record for 6 years from the date of that CCJ.

At no point will CEL re-issue a PCN.  It doesn't rewind that far now that the case is in the court system.

Jack5656

Coupon-mad said:

Worst case scenario: a clueless Judge refuses the set aside and the CCJ remains and you'd probably pay it off to avoid issues.  That marks it 'satisfied' but it stays on your record for 6 years from the date of that CCJ.

At no point will CEL re-issue a PCN.  It doesn't rewind that far now that the case is in the court system.

Hugely helpful again - thank you! I will have to add the CCJ number on all the letters I will be sending as evidence by emailas well as to WS and Draft Order!

Is it worth adding to my WS to say I have evidence that I was working in another location from the car park in question on the day of the alleged infringement? I can prove I was not there at least between 9am to 5pm - that may help a judge make the descretionary decision if they need to know I have a good chance to defend. Or am I getting ahead of myself and better to leave all that until a 2nd hearing?

Le_Kirk

Jack5656 said:

Hugely helpful again - thank you! I will have to add the CCJ number on all the letters I will be sending as evidence by email as well as to WS and Draft Order!

Is it worth adding to my WS to say I have evidence that I was working in another location from the car park in question on the day of the alleged infringement? I can prove I was not there at least between 9am to 5pm - that may help a judge make the discretionary decision if they need to know I have a good chance to defend. Or am I getting ahead of myself and better to leave all that until a 2nd hearing?

If that is the case, then it should be in your defence and then yes, it must be in your WS to back up and support your defence.

Jack5656

Le_Kirk said:

Jack5656 said:

I have evidence that I was working in another location from the car park in question on the day of the alleged infringement? I can prove I was not there at least between 9am to 5pm.

If that is the case, then it should be in your defence and then yes, it must be in your WS to back up and support your defence.

OK thanks Le Kirk - I will add this intop W.S.

At this stage I have not seen any evidence of the CEL claim so no idea what time the photo of car etc was taken - if it was in the late after noon/evening then this won't help much, but at least for now it may cast doubt on the chances that I was the driver.

Jack5656

OK I have looked at the case by @jrhys last year (thanks coupon) and updated my WS to look a bit more professional and added the part about DVLA dates and evidence I was in another location from 9am-5pm that day.

Can someone check this final draft before I send it please...

 

WITNESS STATEMENT OF DEFENDANT

1.         I am xxxx of xxxxx, and I am the Defendant against whom this claim is made. The facts 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 x April 2022 requesting to:

a. Set aside the default judgment dated x 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 Judgement

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

4.         I understand that the Claimant obtained a Default Judgment against me as the Defendant on x 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.

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

6.         The address on the claim is xxxxxxxxxxxxxxx I moved to a new address on xx December 2017 – xxxxxx, and moved to my current address xxxxxxx on xx July 2018. In support of this please see my tenancy offer, council tax bill, utility bill; DVLA letter and housing benefit letter from December 2017 (Annex A), and my council tax bill, utility bill, mortgage offer letter and V5C logbook from July and August 2018. (Annex B )

7.         I never had any notification of the claim until x April 2022 but was advised in a phone call to Civil Enforcement Ltd on x April 2022 that their claim relates to a parking charge in xxxxxxxxxxxxxxxxxx on x January 2018.

8.         I have not been provided with the time of the alleged offence on x January 2018. I have provided evidence that I was in xxxxx on x January 2018 between 9am and 5pm. If the alleged offence relates to this time period in xxxxx] I could not have been the driver.

9.         I have provided my time sheet record from work in January 2018 to confirm I was on a training course in xxxxx, xxxxxxx on x January 2018. I have also provided a written statement from my then manager confirming that I was in xxxx all day on x January 2018. The time sheet working record and statement have been signed by the xxxx manager as being true and correct (Annex C).

10.       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;

Sequence of Recent Events

11.       On 4 April 2022 I received a notification of a Notice of Debt Recovery from DCBL. I then checked my credit rating and found a CCJ dated x November 2018 had been lodged onto my credit file.

12.       On 5 April 2022 I contacted the County Court Business Centre to obtain relevant information relating to this default judgment.

13.       On 5 April 2022 I phoned the Claimant, Civil Enforcement Ltd, to advise I will ask the court to set aside this default judgment as they sent all notifications to a previous address. The Claimant advised they were given my previous address, xxxxxxxxxx by the DVLA on xx January 2018.

14.       On 5 April 2022 I phoned the DVLA to confirm they had a record of my request to update my address after I moved on xx December 2017. I updated the DVLA promptly in December 2017 and sent them my new address within 7 working days of moving.

15.       The DVLA advised in a phone call on 5 April 2022 that they don’t keep a record of the date a V5C is received, but did confirm in 2017/2018 it was usual for an address update to take 4 weeks from receipt of the V5C. The DVLA advise their records show they issued a revised V5C with my new address on xx January 2018. This proves the Defendant acted promptly to notify the DVLA of a new address and it is unfortunate that the DVLA passed the previous address to the Claimant on xx January 2018 (for ref the new V5C was sent the day after DVLA gave CEL my old addreess!) , before issuing the revised V5C with new address on xx January 2018.

16.       On x April 2022 I submitted my case in order to set-aside this judgment and fairly present my case.

17.       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.

18.       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.

19.       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.

20.       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.

21.       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 xxxxxxxxxxxxxx

22.       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.

23.       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.

24.       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.

25.       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. 

26.       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.

 

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.

signed & dated

Annex A

xxxxxx

Annex B

xxxxx

Annex C

xxxxxxxxx

Jack5656

I'm guessing it is all ok to send then as no feedback to the contrary ;-)

1505grandad

"Default Judg(e)ment"?

Jack5656

Just when I thought I had it ready lol - ideal thanks for spotting that ;-)

Coupon-mad

Add to #20 that a failure to carry out proper checks to establish the right address for service before filing a claim not only breaches the CPRs but also the pre-action protocol for debt claims and the British Parking Association Code of Practice.  The Claimant acted wholly unreasonably by negligently or deliberately disregarding all rules and caused the claim to be improperly served.  They failed to serve it at all.

Jack5656

Coupon-mad said:

Add to #20 that a failure to carry out proper checks to establish the right address for service before filing a claim not only breaches the CPRs but also the pre-action protocol for debt claims and the British Parking Association Code of Practice.  The Claimant acted wholly unreasonably by negligently or deliberately disregarding all rules and caused the claim to be improperly served.  They failed to serve it at all.

I like that Coupon - very good thank you! I will add that in now.

And here is the Draft Order:

UPON reading the defendant’s application dated x April 2022.

IT IS ORDERED that:

 
1. The default judgment dated x 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.