Civil Enforcement CCJ set aside. Wording help please.

vincentvega27

Hello all,

I have been doing my best to navigate and ingest as much of this forum as possible in a short space of time due to a CCJ deadline I just found out about. Will do my best to keep this concise.

Received parking charge from CEL in late 2018 / early 2019 (date unknown as it was so long ago I no longer have the documentation)
Contested with them to no avail.
Requested SAR and expected to go to court and contest if needed

Heard nothing for nearly 3.5 years

Moved house in late 2020 (lived with my mother for a year due to chronic illness so have little in the way of bills to prove it).
Current tenant of my old address alerted me to a Judgment to Claimant of £342.9 which I only now have a few days to put aside before the deadline.
I currently am no longer living in the UK (Brazil) so will need to do any hearings via phone.

Here is my draft order:

DRAFT ORDER

IN THE COUNTY COURT AT: XXX

CIVIL ENFORCEMENT LIMITED (Claimant)

And

Mr XXX (Defendant)

CLAIM No: XXX

IT IS ORDERED that:

1. The default judgement dated XXX be set aside.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the claim form on the Defendant by 4pm on XXX paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on XXX.

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 plus the Defendant's costs for attending the hearing.

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

WITNESS STATEMENT

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

a. Set aside the default judgment dated XXX as it was defectively served using an old address.

b. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

c. Order for the original claim to be dismissed.

DEFAULT JUDGMENT

8. I understand that the claimant obtained a default judgment against me on date unknown. However, it was not served at my current address, therefore I was not aware of the county court judgment until a few days ago when the current tenant alerted me. I understand that this claim was served at XXX. However, I moved to my mother’s address due to chronic illness on 01 November 2020 which can be proved by the presence of my name on the electoral register. A witness statement can be provided by my mother if required.

9. The last correspondence I received from the claimant was in early 2019, therefore while I was able to challenge the original charge I have not been able to challenge the judgement.

10. I believe the claimant has behaved unreasonably by not ensuring they used my correct contact details. According to CPR 6.9(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’). I do not believe proceedings were validly served because 3.5 years on it cannot be assumed that this was my last known address.

According to publicly available information my circumstances are far from being unique. Civil Enforcement LTD’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system.

11. I suggest the claimant did not make reasonable enquiries as to my current address before perusing the court order especially considering they had good reason to believe they did not hold my current contact details. Furthermore, considering they received no response from me to their correspondence this should have been a clear indication of the obsolescence of the address XXXX.

12. Considering the above I was unable to defend this claim. Therefore, I believe that the default judgment against me was irregular and I respectfully request it is set aside.

ORDER DISMISSING THE CLAIM

13. I further believe that the original parking charge notice has no merit and should thus be dismissed. The claimant is a parking company which seeks to claim for parking charge notices which the claimant believes are due as a result of an alleged breach of contract for parking by a driver.

14. The claimant has obtained details of the vehicle for which the defendant was the registered keeper and used those details to raise a parking charge notice. I dispute this charge in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to have come into force.

15. If the claimant can evidence that the alleged incident relates to the vehicle GJ57 UTW any notice to keeper issued by the claimant must comply with Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the claimant cannot provide such evidence and further submit that the claimant does not include Protection of Freedoms Act 2012 ; wording on the parking charge notices they issue and therefore cannot hold the registered keeper of the vehicle automatically liable.

16. A requirement of the Protection of Freedoms Act 2012 is that any notice to keeper must be served within 14 days of the date of the alleged incident. Since I have not received any documentation I submit the claimant has not complied with the requirements of the Act and thus cannot claim this charge against me as the registered keeper in any case.

17. I further submit that the parking charge notice is without merit due to substantial issues in law. This is for the following reasons:

a. Lack of Standing by Claimant: The claimant is not the landowner of the car park in question and will have no proprietary interest in it. This means that the claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder and only they would have been able claim for any damages or trespass.

b. No Contract with the Claimant: Any contract must have offer, acceptance, and consideration both ways. There would not have been consideration from the claimant to the driver. Therefore, there is no consideration from the driver to Civil Enforcement Ltd.

18. On this basis I believe that the claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

19. In order to make informed decisions and statements in my defence as former keeper of the vehicle I will require copies of all paperwork and pictures of all signs from the claimant.

Statement of Truth:

I believe that the facts stated in this Witness Statement are true.




So a couple of questions really:

Should it be a problem to do this remotely as I'm out the country?
Does the wording seem ok?
The date in section 3 should be 28 days after the date I send the DO and N44 right?

The date in section 4 should be 28 days after the date in section 3 right?

Thanks ever so much!

vincentvega27

Sorry just realised I left one piece of personal information is there no way to edit?

Coupon-mad

You can report your post and tick 'contains personal info'. Or send a pm to MSE_Laura_F.

You are better copying the more recent example of set aside wording, by @Jack5656 as that one includes the argument that the claim is dead for want of service within 4 months, and must be dismissed.

Your WS must state near the start that you live in Brazil and require a remote hearing.

vincentvega27

Coupon-mad said:

You can report your post and tick 'contains personal info'. Or send a pm to MSE_Laura_F.

You are better copying the more recent example of set aside wording, by @Jack5656 as that one includes the argument that the claim is dead for want of service within 4 months, and must be dismissed.

Your WS must state near the start that you live in Brazil and require a remote hearing.

Hi there thanks for you response. I don't think this applies to me as I have no idea when the issue of proceedings was originally started. It could have been within 4 months and I'm not sure I have time to get the info.

Thanks!

Coupon-mad

Yes it does, do it anyway.  You have a weekend to work on this, surely. By the time it gets to a hearing it will be 4 months passed anyway, but I'd check if I were you, so your WS is better.

Just phone the CCBC and ask when the Claim was dated, and date of CCJ, and what the Particulars of Claim said.

vincentvega27

Coupon-mad said:

Yes it does, do it anyway.  You have a weekend to work on this, surely. By the time it gets to a hearing it will be 4 months passed anyway, but I'd check if I were you, so your WS is better.

Just phone the CCBC and ask when the Claim was dated, and date of CCJ, and what the Particulars of Claim said.

Hi!

Sadly I'm self employed and working a lot this weekend! I just spent an hour on hold and get the particulars of the claim though. It was issued on the 24th march but I did not reply as I did not receive it. The judgement for claimant was issued on the 22nd april.  Sorry if I'm being a but stupid but I'm a bit confused how this argument holds up.

Thank you.

Coupon-mad

If the judgment is dated within the last 30 days, you could just pay it in full and it's wiped.  No CCJ remains.

Hate saying that, as the scammers win and get an inflated sum of money.  But it's an option and we 'get it' that busy people will do that.

vincentvega27

Coupon-mad said:

If the judgment is dated within the last 30 days, you could just pay it in full and it's wiped.  No CCJ remains.

Hate saying that, as the scammers win and get an inflated sum of money.  But it's an option and we 'get it' that busy people will do that.

Yes the judgment was in the last 30 days. I'd rather not pay these scammers out of principle unless I absolutely have to. I'm quite slammed at the moment but this is more down to the fact I've only just found out about the judgement a week or so before the deadline  Surely the fact that they sent to an old address nearly 4 years after the original parking charge is enough to get it put aside?

Just want to make sure I have the correct wording for this really at the moment and can work on my defence when I have a bit more time. It's still entirely possible to get these things thrown out right?

vincentvega27

Ah just checked the email of the particulars and the original parking charge was 08/18. Absolutely ridiculous.

Coupon-mad

Surely the fact that they sent to an old address nearly 4 years after the original parking charge is enough to get it put aside?

It's still entirely possible to get these things thrown out right?

Yes and yes!  We do these CCJ set asides all the time and most people even get the £275 court fee ordered back against the Claimant to pay it back to you, because of their unreasonable conduct in not checking properly before filing a claim.

The one you found is over two years old because it has the pre-2020 (short) statement of truth.

I'd copy what Jack5656 did but remove from your statement, the 'four months dead' point.  But keep that knowledge and argument 'in your back pocket' to raise at the hearing if more than 4 months is gone by then, which is quite likely!

Can you show us what Jack5656's draft looks like without the 4 months dead point?

Your WS will need the new (longer) statement of truth which, if not seen in Jack's thread, is in the NEWBIES thread or it's Google-able in seconds.

vincentvega27

Coupon-mad said:

Surely the fact that they sent to an old address nearly 4 years after the original parking charge is enough to get it put aside?

It's still entirely possible to get these things thrown out right?

Yes and yes!  We do these CCJ set asides all the time and most people even get the £275 court fee ordered back against the Claimant to pay it back to you, because of their unreasonable conduct in not checking properly before filing a claim.

The one you found is over two years old because it has the pre-2020 (short) statement of truth.

I'd copy what Jack5656 did but remove from your statement, the 'four months dead' point.  But keep that knowledge and argument 'in your back pocket' to raise at the hearing if more than 4 months is gone by then, which is quite likely!

Can you show us what Jack5656's draft looks like without the 4 months dead point?

Your WS will need the new (longer) statement of truth which, if not seen in Jack's thread, is in the NEWBIES thread or it's Google-able in seconds.

Hows this looking for a first draft?

Thank you so much!

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. I am currently living abroad at XXX Brazil and would like to request any hearings be done remotely. I have a UK forwarding address at XXX and would like to request any further correspondence be sent there.

3.         This is my supporting statement to my application dated x May 2022 requesting to:

a. Set aside the default judgment dated x April 2022 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

4.         I was the registered keeper of the vehicle at the time of the alleged offence but no longer own the vehicle.

5.         I understand that the Claimant obtained a Default Judgment against me as the Defendant on x March 2022. I am aware that the Claimant is Civil Enforcement Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice

6.         The claim form was served to a previous address and I thus was not aware of the Default Judgment until 09 April 2022 after being alerted by the current tenant.

7.         The address on the claim is xxxxxxxxxxxxxxx. I moved to my mother’s address on 01 November 2020 – xxxxxx due to chronic illness.
In support of this I can provide my current UK driving licence and a bank statement. I am also on the electoral register and was receiving state benefits at this address at the time.

8.         I did not receive any notification of the claim until x May 2022. I contacted CCBC to obtain the particulars of the claim.

10.       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. In June 2021 I renewed my driving licence and updated my address with the DVLA. Although there was a huge backlog at the time, I received my new, updated licence on the 8th September 2021.

12.       On 3 May 2022 I received news of a judgment for claimant for £342.9. The current tenant of my previous address alerted me.

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

14.       On 16 May 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 xxxx

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

16.       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.

17.       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 at least 5 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

18.       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.

19.       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.

20.       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.

21.       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.

22.       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. 

23.       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

Report