Help CCJ PCN Set Aside - Have I left it too late?

popiu44

IT IS ORDERED that:

1. The default judgement dated 8th February 2022 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.

Coupon-mad

Given the mention of 'indemnity basis' - do I need to change this as I'm exposing myself to these high costs?

You aren't exposed. They are taking the mickey and they can't have those costs unless you act unreasonably, such as not turning up for the hearings.

Don't let a roboclaim 'legal' gaslight you!

Now, what you need to add (and file & serve before the hearing) is a costs assessment - like theirs only you CAN claim full costs for unreasonable conduct! - and a skeleton argument appending the 2 court transcripts that support the '4 months dead' argument. YOU NEED TO SEND THOSE TRANSCRIPTS AND LEGAL ARGUMENT.

Seen this week in the thread by @paulr23

IF YOU HAVE 2 APPLICATIONS AND HEARINGS YOU MUST FILE & SERVE THIS TWICE.

Also see the thread by @msx999  because his/her Judge was nearly fooled by a draft order from the legal firm stating 'no order as to costs' and it's a case that shows you MUST be confident and ask for your costs at the end of the hearing. They (the defendant) got over £400!

Why have you got 2 hearings? In person?

When you sign in with the Usher point out that surely they should by heard by the same Judge back to back because if the first hearing is delayed you can't be in two courtrooms at once.

In fact - I'd phone the local court this week to make sure that they are consolidated into one hearing or listed back to back with the same Judge, to ensure you can attend both.

You can't risk being held to be unreasonable by being unable to be in 2 places at once. Explain that to the court staff and get their name and an assurance that these will be consolidated if heard back to back by one Judge, so you can't miss anything. 

popiu44

I will also add this generic defence:

IT IS ORDERED that:

1. The default judgement dated X 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.

—----------

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

X (Claimant)

-and-

XXXXXXXXX (Defendant)

________________________________________

DEFENCE

________________________________________

Preliminary

1. The particulars of claim lack specificity. The Defendant is prejudiced and is unable to prepare a full and complete defence. The Defendant reserves the right to seek from the Court permission to serve an amended defence should the Claimant add to or expand his particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the particulars.

2. The particulars of claim fail to refer to the material terms of any contract and neither complies with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct

3. The Witness Statement, evidence and the Skeleton Argument produced in person at the set-aside hearing on 2nd October 201are repeated. These are also served to the Claimant, who was absent at the set-aside hearing.

4. It is noted that the Schedule of Costs for the previous set-aside hearing on 2nd October 2018, including the cost of the set-aside, were reserved by the Hon’ble District Judge XXXX at the County Court at XXXX. A further schedule of costs has been attached for the defence hearing.

Background

1. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings.

2. It is neither admitted nor denied that on [date XXXX] the Defendant's vehicle was parked at [location]. Due to the length of time passed since the alleged incident the Defendant is unable to accurately recall the date in question.

3. The order to the claim be dismissed due to the following reasons, which are further outlined below –

a. Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012)

b. Lack of adequate notice of the parking charge on clear signage, as acknowledged by the Supreme Court in the Parking Eye vs Beavis case

c. Unrecoverable sums to the original parking charge, in contravention to the BPA Code of Practice and established legal precedents

d. Claimant has no evidence of landowner authority or a legal contract, in contravention to the BPA Code of Practice

e. Illegal signage at alleged site from Claimant, no planning permissions for usage of ANPR and signboards

Failure to follow Protections of Freedoms Act 2012 Schedule 4

4. It is neither admitted nor denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

a. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").

b. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

i. There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and:

ii. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

iii. It is not admitted that the Claimant has complied with the relevant statutory requirements.

c. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances where a criminal offence has been committed. Those provisions do not apply to this matter.

2. Lack of adequate notice of the parking charge on clear signage.

a. In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only (Evidence E.10).

b. In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges. Appended (Evidence E.9) is the 'Beavis case' sign as a comparison to the signs under dispute in this case

c. This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed. Here, the signs are sporadically placed. The wording is mostly illegible as it is so small in size, particularly notice of the actual parking charge itself

d. This case is more similar to the signage in POPLA decision 5960956830 on 2nd June 2016, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operator’s signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

Alternative Defence-

Failure to set out clearly parking terms, Lack of Landowner Authority, Illegal Signage

3. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

4. It is denied that the Claimant has any entitlement to the sums sought.

5. Schedule 4 POFA Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £60 (£40 discounted). The claim includes an additional £223.16, for which no calculation or explanation is given, and which appears to be an attempt more than quadruple recovery.

6. The claimant has no evidence of landowner authority or a legal contract, in contravention of Section 7 of the British Parking Association (BPA) Code. The Claimant has failed to provide this evidence. Therefore, it cannot be determined if the Claimant has permission from the landowner to operate on this land and issue PCN’s. As such, section 7 of the BPA Code of Practice has not been met.

7. The Claimant has omitted to obtain Planning Permissions or Advertising Consent from XXXX Borough Council & the present Landowner for the Signage or the ANPR Cameras. The XXXX Borough Council Planning Register does not show any such applications in its planning history. It is contended that the signs are in place without consent and are therefore illegal advertisements

8. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true. XX/11/2018

popiu44

To summarise:

My final court bundle to send to all parties will be the following documents displayed above:

1) Witness Statement
2)Draft Order (amended without the words Indemnity Basis)
3)ws2  - witness statement 2 which gives some case law (Boxwood/Vinos)
4)Generic Defence

Please advise if this appears to be sufficient or can anyone make any suggestions to ensure I have ticked the right boxes at this late stage - hearing 19th. 

1505grandad

Bit confused  -  you previously posted:-

"Thanks for replying so quickly. So, I have two court hearings that will happen 19th July at the same telephone hearing.

Case 1

BRISTOL PARKING SERVICES LTD

Who are being represented by BW Legal and I have received a pre-hearing pack in the post today

Case 2

HIGHVIEW PARKING LIMITED

Who may be represented by DCBL but I have not received anything in relation to this hearing

More to follow..."

One is IPC AoS member and the other is BPA AoS member.

As you keep referring to BWL I can only assume that you are dealing with claimant Bristol Parking Services  -  an IPC AoS member. However you are quoting BPA CoP?

And a heads-up  -  Judgment in this context does not contain the erroneous middle "e"  -  Google CCJ.

Coupon-mad

popiu44 said:

To summarise:

My final court bundle to send to all parties will be the following documents displayed above:

1) Witness Statement
2)Draft Order (amended without the words Indemnity Basis)
3)ws2  - witness statement 2 which gives some case law (Boxwood/Vinos)
4)Generic Defence

Please advise if this appears to be sufficient or can anyone make any suggestions

No it won't be only that. See my reply.

Also if these are two separate claimants you CANNOT RISK both being heard on 19th!  What if the first is delayed?!

You must ring the local court and ensure they are lusted back to back with the same Judge (or one needs relisting to a different date) or you are stuffed.

The dates here make no sense what year, what previous hearings?)  and you haven't used the Template Defence:

3. The Witness Statement, evidence and the Skeleton Argument produced in person at the set-aside hearing on 2nd October 201are repeated. These are also served to the Claimant, who was absent at the set-aside hearing.
4. It is noted that the Schedule of Costs for the previous set-aside hearing on 2nd October 2018, including the cost of the set-aside, were reserved by the Hon’ble District Judge XXXX at the County Court at XXXX. A further schedule of costs has been attached for the defence hearing.

I am confused. Have you already had set aside hearings?

popiu44

1505 Grandad - I have 2 hearings and there are 2 separate claimants. I was planning to deal with both in the same way and just alter the locations, dates etc for ewach set of documents.

popiu44

Coupon Mad - that was the defence I lifted from somewhere here but I guess it's wrong.

popiu44

Coupon Mad - I have not had set aside hearings - it was just what I did not erase from the document I found

popiu44

Coupon Mad - I called the court weeks ago and they said the judge had asked for them to be heard at the same time like this. I am calling the court now to ensure they are 'back to back' and not at the same time. 

I will send the Costs Order based on unreasonable conduct Seen this week in the thread by @paulr23

I'm assuming that just leaves the defence. (Ignore the defence above - poor copy and paste).

Can you recommend a thread with a suitable generic defence that I can present to deal with this angle?

And once I deal with these 2 mattes, I'm hoping I have covered all bases.