CCJ Help Please

Coupon-mad

You could try but expect them to say they will if you pay up...also be wary that a consent order still might not be accepted by a Judge anyway if the Judge sees it as credit cleansing.

Only waste a week asking, don't delay an application any longer than a couple of weeks. 

Emma1516

IN THE COUNTY COURT

Claim No.:xxxxxx

Between

Highview Parking LTD

(Claimant)

- and -

Defendant’s name from N1 claim (can’tbe changed to driver now)

 (Defendant)

_________________

DEFENCE

1.The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

The facts as known to the Defendant:

2.It is admitted that the Defendant was the registered keeper and driver of the vehicle in question

3.The defendant took their mother shopping at their local retail parkin august of 2016, the defendant did not actually realise there was a time limit on how long they could stay at the retail park, however a few weeks later a letter was recieved by the defendant stating that they had over stayed the alotted time allowed at the retail park, The defendant had called the parking firm and explained the minor over stay had taken place due to the fact that the defendants mother suffered from ulcerated legs and knee problems which therefore meant it took her longer to walk around with many stops needed, the defendant never heard anything else with regards to this parking charge notcie until discovering the ccj on monday 27thJune 2022, the defendant had assumed there would be no further action after explaining the circumstances. The defendant believes the original PCN to be unlawful under "The Equality Act 2010" The defendant made the claimant aware of the mothers disability and sothey were no longer entitled to pursue the PCN and it should have been cancelled immediately to end the indirect discrimination. Disabled persons with protected characteristics cannot be held to arbitrary time limits applied to able bodied persons if it causes detriment (which this did, and the Claimant knew back in 2016)

No further paperwork has ever been receieved by the defendant, the defendant has filed a complaint with Royal Mail

4. The facts in this defence come from the Defendant's own knowledge and honest belief. To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence.

5. With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case. Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim. The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however the claim is unfair, objectionable, generic and inflated.

6. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 100, 193, 198 ofParkingEye Ltd v Beavis[2015] UKSC67. AlsoParkingEye Ltd v Somerfield Stores LtdChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135'would appear to be penal'.

7. This finding is underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here:https://www.gov.uk/government/publications/private-parking-code-of-practice

8. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says:"The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

9. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim:"Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection andunreasonable fees designed to extort money from motorists."

10. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

11. This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court inBeaviscalled an automated letter-chain business model that generates a healthy profit.

12. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.

13. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were'designed to extort money'.A clear steer for the Courts.

14. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v WardandVehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further. In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made. Evidence was either overlooked (including inconspicuous signage inWilshaw,where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy). InWard, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract inBeavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

POFA and CRA breaches

15. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation'). If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred.

16. Claiming costs on an indemnity basis is unfair, per theUnfair Contract Terms Guidance(CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

17. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear termsandnotices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith.

ParkingEye v Beavisis distinguished (lack of legitimate interest/prominence of terms)

18. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach.

19. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor any 'concealed pitfalls or traps'.

20. In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver. Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen or agreed. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

(i)Spurling v Bradshaw[1956] 1 WLR 461 (‘red hand rule’) and

(ii)Thornton v Shoe Lane Parking Ltd[1970] EWCA Civ2,

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

(ii)Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound. It was unsurprising that she did not see the sign, due to"the absence of any notice on the wall opposite the parking space''(NB: when parking operator Claimants citeVine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).

21. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies. In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed:"Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."

Lack of landowner authority evidence and lack of ADR

22. DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref:KADOErules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.

23. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).

Conclusion

24. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

25. With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these areknowinglyexaggerated claims. For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

26.In the matter of costs, the Defendant asks:

(a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.

27. Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, theWhite Bookstates (annotation 38.6.1):"Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."

Statement of Truth

I believe that the facts stated in this defence 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.

Defendant’s signature:

Date:

Emma1516

@Coupon-mad hi, I was wondering if you would mind checking the above for me please I have done lots of research over the weekend and I'm hoping this is ok, would I send this with the n244 form please ?

thanks again for your help, much appreciated 

Coupon-mad

I am not sure why you've drafted a Defence if this is a CCJ set aside application?

That's not right. You should be reading other CCJ threads, not claim threads.

I pointed you to read two:

Have a read over the weekend of the recent set aside threads by people like @Jack5656 (CCJ already successfully set aside) and @eb23456 who has just finished his/her paperwork to submit their case, so they are just ahead of you.

Emma1516

Thanks @Coupon-mad I just don’t seem to be able to find the original posts for those threads sorry to be a pain

Umkomaas

Their user names - @Jack5656 and @eb23456 - are hyperlinks to their individual profile pages. Click on each of the names to access their Profile.  Once you've reached their profile page, click on 'Discussions' (l/side of page), then scroll down the page and you'll see any Discussions (threads) they've started. Pick the appropriate one to access the information recommended to you by @Coupon-mad. 

KeithP

Umkomaas said:

Their user names - @Jack5656 and @eb23456 - are hyperlinks to their individual profile pages. Click on each of the names to access their Profile.  Once you've reached their profile page, click on 'Discussions' (l/side of page), then scroll down the page and you'll see any Discussions (threads) they've started. Pick the appropriate one to access the information recommended to you by @Coupon-mad. 

...and as both those people have only ever started one Discussion each, the last part of @Umkomaas'  post should be quite straightforward.  

Emma1516

Thank you all so much for your help I really appreciate it am looking now 😊

Emma1516

WITNESS STATEMENT

I am xxxxxx and I am the defendant in this matter. This is my supporting statement to my application dated 30th June 2022 requesting to:

a. Set aside the default judgment dated 7th April 2022 as I received no correspondence and was unable to defend myself.

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

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

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 7th April 2022. I am aware that the Claimant is Highview Parking LtD, and that the assumed claim is in respect of unpaid Parking Charge Notice from the August 2022, I contest this charge for the reasons below which will form my draft defence.:

- The fine issued was disproportionate to the loss incurred by the Claimant

- unclear signage, the signs at the entrance to the car park did not make clear that it was managed, or required number plate entry therefore it was unclear what the contract arrangement was between the landowner and the driver.

The car park in question has attracted huge numbers of complaints about unfair fines of up to £100 

- no paperwork was ever received at my address regarding a ccj if not I would have acted promptly in addressing the matter as I am doing now

1.3 CPR 13.3 provides for a set aside that may be allowed if there is 'good reason'.

I now remember the initial letter I received about this at that time, I had called and explained the reason it had taken us a little longer was due to the fact my mum had ulcerated legs and took her a lot longer to walk anywhere, she also had arthritic knees and was obese and I never to this day heard anything else so had the honest belief that it was cancelled.  Nothing further was heard until the shock of me discovering the CCJ in June 2022.  I logged into Equifax to find out what was going on and it says I have a CCJ issued on 7th April 2022.

The claimant knew about this because the defendant had called in 2016 to explain the situation and so they were no longer entitled to pursue the PCN and it should have been cancelled immediately to end the indirect discrimination. The defendant believes the pcn to be unlawful because under The Equality Act 2010 Disabled persons with protected characteristics cannot be held to arbitrary time limits applied to able bodied persons if it causes detriment (which this did, and the Claimant knew back in 2016).

No further paperwork has even been received by the defendant

The defendant has filled a claim with Royal Mail on the 1st July 2022

1.4. 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;

1.4.1 I discovered a CCJ was lodged onto my credit file on the 27th June 2022.

1.4.2 On 29th June I contacted the County Court Business Centre to obtain relevant information relating to this default judgement; Schedule (X).

1.4.3 On 5th July 2022 I have wilfully submitted my case in order to set-aside this judgement and fairly present my case.

1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring the Defendant had received details of the claim.

1.6. Considering the above I was unable to defend this claim. I believe that the Default Judgement 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.

Emma1516

@Coupon-mad please could you check this for me I tried to adapt and am hoping it makes sense it’s difficult as I don’t have the incorrect address argument