Satisfied CCJ - HELP!

eb23456

Coupon-mad said:

Same as everyone does with all set asides here - they go in blind. Jack5656 went in blind.

The SAR should have been emailed to the parking firm not BW LEGAL.

Waiting for a SAR reply does not affect and must not delay your application to set aside the CCJ. it's not needed because this application is not about the parking charge, car park or photos.

Can I include background information in the WS (such ash details about why my car was registered to my home address, how I'd changed address four times since living at the address the documents got sent to)?

Coupon-mad

Yes, people are very mobile these days and you need to explain that the claim was simply not properly served and that the PPC made no effort to take any reasonable steps to corroborate the unreliable data of a DVLA car registered address, which is NOT given by the DVLA with any intention that it is a proven/checked court 'service address' and this is why a check (soft trace - costs 29 pence) is required under the Claimant's parking Code of Practice and under the Civil Procedure rules.

I assume you are reading other CCJ set aside threads to learn from them and copy what they are doing and reading our ongoing advice on other threads, as if it was for you, because I've literally just replied in depth to someone about this same subject.

eb23456

Coupon-mad said:

Yes, people are very mobile these days and you need to explain that the claim was simply not properly served and that the PPC made no effort to take any reasonable steps to corroborate the unreliable data of a DVLA car registered address, which is NOT given by the DVLA with any intention that it is a proven/checked court 'service address' and this is why a check (soft trace - costs 29 pence) is required under the Claimant's parking Code of Practice and under the Civil Procedure rules.

I assume you are reading other CCJ set aside threads to learn from them and copy what they are doing and reading our ongoing advice on other threads, as if it was for you, because I've literally just replied in depth to someone about this same subject.

I'm really sorry I've been reading a lot over the past week and it's all a bit of a blur at this point! I'm trying to keep up! Thank you for taking the time to respond to me though I really do appreciate it. I'll be posting my WS tomorrow once I've finalised it

eb23456

Okay here's my witness statement, any feedback will be greatly appreciated !!!

WITNESS STATEMENT     

1. I am XXXXX of XXXXXXXXXXXX, 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. In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. 

Sequence of events and signage: 

3. I am familiar with this car park, although only recall using it on this single occasion. I was of the knowledge that the area was overwatched by wardens (as many car parks in XXXX are) and so as I pulled into the car park in the middle of the night and did not actually exit my vehicle, I was unaware of any parking charges. I did not restrict access or egress from the parking area, in fact my vehicle was one of only a handful there at the time. 

4. At the time of this incident I was severely emotionally distressed following an argument with my partner. I did not feel safe to carry on driving and so I pulled in to the car park so that I was off the road and not endangering myself or others. I parked in a marked bay, and was stationary in my vehicle for what I believe to be approximately 45 minutes. I made a phone call to one of my friends and then listened to some music to calm down, I vacated the area when I felt safe to drive again. I was not on the lookout for parking signs as it was the middle of the night, so I was not aware of any restrictions. The car park was very dimly lit and to my recollection this was in the form of a single street lamp above the entrance to the area. 

5. I did not see any signs during my entry to, stay at or exit from the parking area that stated that the car park was monitored by cameras or that payment would be required 24/7. As such I can only reasonably conclude that there were no such signs. Had there been any clear indications that I was parking in a restricted area, I would not have parked there. 

6. In fact, the Claimant provides no evidence that any such signage claimed to be at the site on the material date was visible from any car entering, parking in or exiting the parking area. Any photographs purporting to show such signage on a different date cannot be considered sufficient to evidence their presence on the date in question. Any close-up photographs of signage cannot be considered sufficient as evidence of their visibility from the entrance nor from any areas, like the one in which I parked, that were frequently and considerately used as parking by members of the public. 

Changes to signage and parking area: 

7. After being notified of the fine on 15/06/2022, I went to the car park at a similar time to which I recall this incident being and saw multiple signs for the first time. This was on 23/06/2022 at 00:34am. 

8. Exhibit 06 is a photograph of the entrance to the parking area, taken from inside my car, showing that there is only a singular street lamp which is directed away from the car park to serve as lighting at night time. 

9. Exhibit 07 shows the entrance to the car park from the opposite side of the road. There is a motion sensitive light to the left of the image which is directed over a payment machine. This is the only light source within the car park. 

10. Exhibit 08 shows two signs that have been erected at the entrance to the car park. As there is no lighting around either of them, visibility is extremely limited. 

11. Exhibits 09 and 10 show a view from the driver’s window in the space where I was parked when the fine was issued. Both signs are a good 100m+ away and cannot be read. 

12. Exhibits 11 and 12 show two more signs near the exit of the car park out of the driver’s window. Again, these are not lit and so cannot easily be read without going a lot closer to them. 

13. The lack of visibility in the car park and the small font on the signs, does not allow the opportunity for anyone to become acquainted with its terms. As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015, the signage constitutes an unfair customer notice, and, pursuant to s62 of the same act, any terms would be considered incapable of binding any person reading them under common contract law. Consequently, it is my position that, even if I had seen signage no contract to pay an onerous penalty would have been seen, known or agreed. 

Background information: 

14. To this date I have not seen any documents relating to this claim. I was made aware of the CCJ against me via email on 15/06/2022 by a vetting officer from the Metropolitan Police (exhibit 01). I have applied for a graduate position there and after applying for the role in August 2021 I have finally reached the vetting stage which is the final stage before a formal job offer is given. After being made aware of this I contacted Northampton County Court to ask for more details as to what this was related to. I was then told that BW Legal were the representatives for Britannia Parking Group Ltd. who was the Claimant in the case and that I should contact them to discuss this further.  

15. After speaking with BW Legal I was told that all letters relating to the fine were supposedly sent to XXXXXXXXX. This was my childhood home where I lived with my parents before moving to XXXX for university in September 2018. Since then, I have lived in four different properties in XXXX, moving to XXXX in September 2018; XXXXX in September 2019, XXXXXX in September 2020; and finally, to my current address in August 2021. Tenancy agreements for all properties have been included in evidence as exhibits 02, 03, 04 and 05. No utility bills are available as all bills have been included in the rental price of every tenancy. 

16. When I questioned BW Legal as to why they used the address they did, they explained that they had found my address through DVLA records. This was because my car was kept at my then “home address” whilst I was at university. I occasionally brought my car to XXX in the term holidays or for a couple of weeks at a time throughout the year, but as it was kept at my “home address” for the majority of the year, this was the address that I used on my insurance and where the car was registered to. 

17. The reason I was not informed or did not receive any of the letters sent by Britannia Parking Group Ltd. and BW Legal is because it was only my mother living at the address at the time. Her and my father had separated in October 2017 and he had moved to XXX, Scotland. When I moved to university my mother and I were estranged as we do not have a good relationship and as far as I’m aware any post that gets delivered there addressed to me gets disposed of as I have had no contact with her since September 2018. 

18. I changed the address on my driving license when I moved to XXXX in September 2019 as that was when I began bringing my car to XXX as there was permit parking available. I also changed the address on my license when I moved to XXXXX I was informed in my first initial call with BW Legal that they had done three searches to find my address between June 2020 and August 2021. As the address my car was registered to never changed, that’s why they sent the letters there. However, had they checked the address on my driving license or the electoral roll, they would’ve known I was living in XXXX.  

19. 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. 

20. 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 15 months to establish an address before filing a county court judgment. This has led to the claim being incorrectly served to an old address and an irregular judgment. 

21. 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.  

22. The Defendant was 'there to be found' for the sake of a 29 pence 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. 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 and/or deliberately disregarding all rules and caused the claim to be improperly served. 

 

The Beavis case is against this claim 

23. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a “legitimate interest” in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause. 

24. However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay, as in this case where I parked in an appropriate manner and at a time when there were very few cars in the car park or on the road at all. This incident took place at the height of the COVID-19 pandemic and so very few people were leaving their houses at all, let alone in the middle of the night. 

 
My fixed witness costs – ref PD 27, 7.3(1) and CPR 27.14  

25. Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).  

CPR 44.11 – further costs 

26. As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the embarrassment of being informed about this from a vetting officer for a job I’ve applied for and the emotional strain of worrying about the integrity of my credit record and what this may mean for the next six years of my life. 

27. Therefore, I am appending with this bundle a fully detailed costs assessment (exhibit 07) which covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court’s powers in relation to misconduct (CPR 44.11). In support of that argument, I draw the Court’s attention to the fact that given the specificity of the conclusions of Judges Jackson and Hickinbottom, and their direct relevance to this Claim, the Claimant’s business model and that of the Claimant’s legal representation, pursuit of the inflated sum including double recovery in full knowledge of such conclusions is clearly vexatious. 

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. 

 

Witness’ signature: 

 XXXXX 

Date:  

22/06/2022 

 

eb23456

Ive also drafted this as a consent order, again any feedback would be great!

UPON the Defendant asserting that she did not receive the Claim Form; 

AND UPON the Claimant accepting that the Defendant did not receive the Claim Form as they had since moved address and therefore did not have the opportunity to defend the claim; 

AND UPON the Defendant now having paid the claim in full; 

BY CONSENT IT IS ORDERED THAT: 

1. The Judgment registered on 28/09/2021 be set aside and the registration removed. 

2. The Claimant’s claim be and is hereby dismissed.

3. There be no order as to costs. 

eb23456

Tried to upload the exhibits but it won't let me! Essentially its just pictures of the signs in the car park that I took tonight which shows how dark it is and how hard it is to read or even notice most of them

Coupon-mad

I think your WS looks far too much like one about defending the PCN.  But you can't do that because you've paid the claim. 

A WS in support of an application to set aside a CCJ should only be about evidencing that the claim was not properly served, due to no reasonable steps being taken by the C to check the old DVLA car reg address was still/ever good for service of court papers.  You should be evidencing that you'd moved but were 'there to be found' for the sake of a 29 pence soft trace, and that under CPR 13.2 (and 13.3 as a fallback) the CCJ must be set aside.

Nothing about the PCN, signage or arguments against the claim itself.  And certainly not this, given your draft order says 'no order as to costs':

27. Therefore, I am appending with this bundle a fully detailed costs assessment 

eb23456

Coupon-mad said:

I think your WS looks far too much like one about defending the PCN.  But you can't do that because you've paid the claim. 

A WS in support of an application to set aside a CCJ should only be about evidencing that the claim was not properly served, due to no reasonable steps being taken by the C to check the old DVLA car reg address was still/ever good for service of court papers.  You should be evidencing that you'd moved but were 'there to be found' for the sake of a 29 pence soft trace, and that under CPR 13.2 (and 13.3 as a fallback) the CCJ must be set aside.

Nothing about the PCN, signage or arguments against the claim itself.  And certainly not this, given your draft order says 'no order as to costs':

27. Therefore, I am appending with this bundle a fully detailed costs assessment 

Hi Coupon, just working on a new version of my WS now after being away for a few days. Should I be writing in third person ("the Defendant believes...") or is saying "I believe..." okay? Will have a final WS posted within the hour.

Coupon-mad

A WS is written 'I believe' etc.

eb23456

Okay here is a revised version of my WS. I'm not sure if the section about the Beavis case is relevant but thought I would leave it in for assessment. Please let me know if I should add or change anything !!!

WITNESS STATEMENT

1. I am XXX 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. In this statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:  

Sequence of events: 

3. I am familiar with this car park, although only recalls using it on this single occasion. I was of the mindset that the area was overseen by wardens (as many car parks in XXXX are) and so as I pulled into the car park in the middle of the night and did not actually exit my vehicle, I was unaware of any parking charges. I did not restrict access or egress from the parking area, in fact my vehicle was one of only a handful there at the time. 

4. At the time of this incident I was severely emotionally distressed following an argument with my partner. I did not feel safe to carry on driving and so I pulled in to the car park so that I was off the road and not endangering myself or others. I parked in a marked bay, and was stationary in my vehicle for what I believe to be approximately 45 minutes. I made a phone call to one of my friends and then listened to some music to calm down, I vacated the area when I felt safe to drive again. 

5. The car park was very dimly lit and to my recollection this was in the form of a single street lamp above the entrance to the area (facing the main road, not the car park). I did not see any signs during my entry to, stay at or exit from the parking area that stated that the car park was monitored by cameras or that payment would be required at all times. As such I can only reasonably conclude that there were no such signs. Had there been any clear indications that I was parking in an area with such restrictions, I would not have parked there. 

6. Any photographs purporting to show such signage on a different date cannot be considered sufficient to evidence their presence on the date in question. Any close-up photographs of signage cannot be considered sufficient as evidence of their visibility from the entrance nor from any areas, like the one in which I parked, that were frequently and considerately used as parking by members of the public. 

Background information: 

14. To this date I have not seen any documents or evidence relating to this claim. I was made aware of the CCJ against me via email on 15/06/2022 at 10:29am by a vetting officer from the Metropolitan Police (exhibit 01). I have applied for a graduate position there and after applying for the role in August 2021 I have eventually reached the vetting stage which is the final stage before a formal offer of employment is given. Being notified of this judgment in this way was not only extremely embarrassing, but also caused immense stress as this is a situation I have not been in before and I am aware that if a candidate has any outstanding CCJ’s their vetting will be denied as per the Metropolitan Police’s eligibility requirements for joining. I stated that I was unaware of the judgment to the vetting officer and said that I would find out what it was regarding and get back to him when I had decided upon a resolution. 

15. I immediately contacted Northampton County Court to ask for more details as to what this was related to. I was told that BW Legal are the representatives for Britannia Parking Group Ltd. who is the Claimant in the case, and that I should contact them to discuss this further.  

16. After speaking with BW Legal I was told that all letters relating to the fine were supposedly sent to XXXXXXX. This was my childhood home where I lived with my parents before moving to XXXXX for university in September 2018. Since then, I have lived in four different properties in XXXX, moving to XXXXXX in September 2018; XXXXXXX in September 2019, XXXXXXX in September 2020; and finally, to my current address in August 2021. Relevant pages of tenancy agreements for all these properties have been included in evidence as exhibits 02, 03, 04 and 05. I am able to provide the full agreements if necessary. No utility bills are available as all bills have been included in the rental price of every tenancy. 

17. When I questioned a representative at BW Legal as to why they used the address they did, they explained that they had found my address through DVLA records. This was because my car was kept at my then “home address” whilst I was at university. I occasionally brought my car to XXXXX in the term holidays or for a couple of weeks at a time throughout the year, but as it was kept at my “home address” for the majority of the year, this was the address that I used on my insurance and where the car was registered to. 

18. The reason I was not informed or did not receive any of the letters sent by Britannia Parking Group Ltd. and BW Legal is because it was only my mother living at the address at the time. Her and my father had separated in October 2017 and he had moved to XXXXXXX, Scotland. When I moved to university my mother and I were estranged as we do not have a good relationship and as far as I’m aware any post that gets delivered there addressed to me gets disposed of as I have had no contact with her since I moved to XXXX in September 2018. 

19. I changed the address on my driving license when I moved to XXXXX in September 2019 as that was when I began bringing my car to XXXX as there was permit parking available at that address. I also changed the address on my license when I moved to XXXXXX. I was informed in my first initial call with BW Legal that they had done three “searches” to find my address between June 2020 and August 2021. As the address my car was registered to never changed, that’s why they sent the letters there. However, had they checked the address on my driving license or the electoral roll, they would’ve known I was not living at that address, and hadn't done for some time. 

20. On 16/06/2021, less than 24 hours after being told about the CCJ, I received legal advice from a solicitor and was advised to pay the judgment in full so that my job in the Metropolitan Police was not in jeopardy. I was also advised that applying for the judgment to be set-aside after paying it in full would be the best course of action as it had been improperly served due to all relating documents being sent to an incorrect address. 

21. After speaking to this solicitor I then called BW Legal and paid the CCJ off in full at approximately 11:30am, around 25 hours after first learning of the judgment. 

22. If I had known about this fine (and subsequent CCJ) earlier, I would’ve paid the amount in full with the same urgency. It was not my intention to drag this out for so long, I was simply unaware that the fine even existed. 

Reasoning for requesting a set-aside: 

19. The reason for requesting for this CCJ to be set aside is because I believe that the Claimant has behaved unreasonably in pursuing a claim against me. They failed to ensure that they held the correct contact details for me at the time of the claim, therefore, the claim has been improperly served. 

20. On that basis, I also believe the Claimant has not adhered to CPR 6.9 (3) as they have failed to show due diligence by using an address at which I no longer resided. The Claimant did not take reasonable steps to ascertain the address of my current residence despite having some 15 months to establish an address before filing a county court judgment. This has led to the claim being improperly served to an old address and has resulted in an irregular judgment. 

21. 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.  

22. I was 'there to be found' for the sake of a 29 pence bulk Experian trace or a similar, very inexpensive and immediate credit reference agency address check. If such steps had been taken, I would then have been notified of this fine and could have taken action to settle the claim much sooner, rather than it having to get to this point now. 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 and/or deliberately disregarding all rules associated with this and caused the claim to be improperly served. 

The Beavis case is against this claim 

23. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a “legitimate interest” in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause. 

24. However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay, as in this case where I parked in an appropriate manner and at a time when there were very few cars in the car park or on the road at all. This incident took place at the height of the COVID-19 pandemic and so very few people were leaving their houses at all, let alone in the middle of the night. 

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. 

 

Witness’ signature: 

  XXXXXXXX

Date:  

22/06/2022