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

Jack5656

OK thanks for letting me know.

Do you ask for the supplementary WS to be inserted to, or to corresspond with the part of the original WS that the new info relates to?

e.g. "this new evidence relates to point xx of my original WS and provides further evidence to show that I did update DVLA promptly by sending them my new address on xx/xx/18 which is 8 working days after I moved" ... etc

I moved address just before Xmas and sent the VC5 off 17 days later, but I make it only 8 working days between moving in and sending the VC5 by post if you take out Xmas holidays and weekends. I had no internet access at that time in the new property so there is no arguement that this could have been done quicker online either. The copy of the VC5 on the SAR is hopefully worthwhile evidence to show I updated DVLA promptly.

I am also tempted to wait and see if I get the SAR from CEL as that may add more new evidence to the supplementary WS. If I find out the time of alleged offence was when I can prove I was in another town I will have a rock solid defence. I am tempted to phone CEL to ask for the time PCN relates to so I have that info asap, and remind them about the ICO!

Coupon-mad

If you do phone them, don't be taken in.  Their aim is to make you pay and they'll pretend that they will 'make it easier' for you by consenting to set aside at this late juncture...as long as you pay them a 3 figure sum.

They'll also tell you the DVLA address issue is your fault!  You could counter that, by asking why they never check addresses with a soft trace, as the BPA code requires.  Tell them they breached the pre-action protocol by not bothering to re-check the address and how do they explain their inaction?

Record the call on a second phone by putting the first on loudspeaker, unless you have a better way to do that.

Jack5656

Thanks for that - I certainly won't be paying them a penny for a consent! I did a search and found this at para 10:

"The Code introduces safeguards on the recovery of debt, including an obligation to use reasonable endeavours, including contacting credit reference agencies to undertake a ‘soft trace’, to establish correct correspondence details."

I suspect the response from CEL will be that this requirement in the code is a new one and didn't exist in 2018?

Coupon-mad

It did though, in lesser words. It's in the BPA CoP previous version. And it's in the pre-action protocol AND the CPRs about service of a claim.

Jack5656

I'm struggling to find the relevant part in the BPA CoP any ideas where?

Coupon-mad

Sorry no idea (without reading it) but it doesn't say 'soft trace'. It's looser language but it's there. 

Jack5656

Ok I think I have it now...are we talking about BPA CoP version 7...

Clause 23.1c - Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the person being written to is the correct party.

Worth adding this to the supplementary WS then?

Coupon-mad

I would, plus the better clarification of that practice, as spelt out by the Govt now.

Jack5656

OK great, this is what I have drafted:

SUPPLEMENTARY WITNESS STATEMENT OF DEFENDANT

1.         I am xxxxxxxxx of xxxxxxxxx, 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 supplementary supporting statement to my application dated xxxxxx requesting to:

a. Set aside the default judgment dated xxxxxxx 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.

DVLA Evidence

3.         To supplement point xx of my Witness Statement I attach the V5C log book from a Subject Access Request the DVLA provided on xx May 2022 (Annex B updated).

This V5C is signed and dated xx xx 2018 proving I sent the VC5 on this date  to the DVLA notifying them of my new address – xxxxxxxxxxxxxxxxx. I moved to this address on xx xx 2017 and sent the V5C to DVLA 8 working days later (allowing for public holidays and weekends between xx xxxx 2017 and xx xxx 2018).

4.         To supplement point xx of my Witness Statement I refer to the British Parking Association Code of Practice 2012 - Version 7, January 2018, clause 23.1c which states:

“Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the Notice To Driver / Notice To Keeper /reminder letters, take reasonable endeavours to ensure that the person being written to is the correct party.”

The Private Parking Code of Practice published on 7 February 2022 by the Secretary of State for the Department for Levelling Up, Housing and Communities further states:

“If a driver, keeper or hire company does not respond to a notice of parking charge or subsequent correspondence, or a parking charge has not been paid in full, reasonable endeavours - including contacting credit reference agencies to undertake a ‘soft trace’ - must be undertaken by the parking operator and/or its appointed debt recovery agent to establish the correct correspondence details of the driver, keeper or hire company before commencing enforcement action.Where a new address is discovered the notice of parking charge should be re-issued at the original rate but with a further 28 days from service for a response (payment or appeal).”

Direct Collection Bailiffs Ltd, who the Claimant instructed to collect for them, easily found my current address using a credit reference trace. This is something the Claimant should have done in 2018 when they had no response from the old address provided by the DVLA.

Jack5656

Would you recommend I add something about:

1) CEL's failure to respond to the SAR as required, and that this is indicitive of this company's continued failure to follow the required processes.

2) Highlight I have had issues obtaining credit recently due the incorrectly applied CCJ (I can give an exampe of being refused an overdraft recently)

Or is this not relevant for a judge and just extraneous?