Help with a CCJ Set Aside please?

Mars28

ahh, thanks. I think I've confused myself and started thinking a Skelly was and outline/draft defence as I started with the Defence template on the newbies thread and went from there.

I'll copy BrokenChief's skelly, and add a paragraph on 13.3, just in case I need to rely on it.

I'm also planning on converting what I have written in my last post into a supplementary WS as it's got additional evidence of me not being the driver, additional points specifically pointing out POFA and Pre-action protocol failures identified since receiving the C's WS and SAR returns.

I'm concerned that the Judge might believe that C did conduct a trace despite it being hearsay, and therefore decide that it was Served correctly, which would leave me relying on 13.3, i presume.

Or does the Judge have to set the CCJ aside on the basis that there was no legal cause of action (assuming they believe my evidence that I was not the driver and agree that condition 9(f) was not met)

Coupon-mad

I'd state in your hearing that they cannot have done a proper trace (if they did one at all) because your address was 'there to be found' on your credit file.

Also, if you ever did an appeal then they had your email address all along and could have contacted you that way (if you provided it). They could have checked your service address and alerted you to the impending claim.

Mars28

Thanks - i'm also stating that the search records show no such trace, and I now have a message from the credit agency which says they would expect any trace to show up. Hopefully it all adds up to the judge believing me, or at least siding with me on the balance of probability.

No appeal though - I didn't know anything about the PCN, LoC or CCJ until about 4/5 months after it was issued.

Mars28

OK, WS number. It adds a bit evidence i've gained since the initial application to back up by initial WS, as well as in part respond to the C's WS. In particular to demonstrate non POFA compliance in the NTK, non Pre action protocol  compliance in the LoC, more evidence that I was not the driver, and an attempt to try and influence the judge to agree that they have been unreasonable, and therefore to award me costs! Next I'll do the Skelly (hopefully properly this time)

Any thoughts would be great.

Note: Number ingis gone funny, but it's ok on the original

WITNESS STATEMENT Number 2

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1. I am XXXXX and the Defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my knowledge.

1. This is a Witness Statement No.2, providing supplementary information gained from Subject Access Requests and in response to the Claimant's Witness Statement No. 1.

DEFAULT JUDGMENT

1. I understand that the Claimant obtained a Default Judgment against me as the Defendant on XXX. I am aware that the Claimant is CP Plus Ltd T/A Group Nexus, and that the assumed claim is in respect of a Parking Charge Notice from XXXX. I wish for the opportunity to contest this Charge Notice for the reasons outlined in my initial Witness Statement.

2. The Claimant pursued me as the driver but has provided no evidence that I was the driver on the day, instead relying on unsubstantiated probability calculations that the keeper of a vehicle is more likely to be the driver than any other person, at any given time. It is admitted that I was the registered keeper of the vehicle, but it is denied that I was the driver. Evidence supporting my denial is provided in Exhibit XX.

3. As the Letter of Claim was sent to a residence at which I did not reside, I was unaware of the impending Default Notice. Upon finding out of the presence of a CCJ, I have acted speedily to research and learn about the procedures that I must follow to resolve this issue. I quickly submitted my N244 application and Witness Statement 1 as required, and then continued to gather additional evidence from the Claimant to support my argument. This Witness Statement 2 follows on from my initial Witness Statement to provide additional evidence, matters of fact and opinion to support my set-aside hearing.

FAILURE TO SERVE THE CLAIM

1. The claimant’s Witness Statement No. 1 sets out their perspective on the ‘steps taken to recover the debt’ in paragraphs 17-20. The claimant claims to have sent letters to me on 3 occasions, but provides no evidence of this in either their submission to the Court, or in the Claimants and DCBL’s Subject Access Requests packs. (Exhibits XX and XX).

2. In paragraphs 18 and 21, the claimant states that they conducted a trace in order to find my address, but provides no evidence supporting this. However, in dispute of this, DCB Legal have confirmed no traces were conducted in their return to my Subject Access Request (Exhibit XX), and no record of a trace is shown on my credit files (Exhibit XX). The Credit agency have confirmed that any trace or search would leave a record (exhibit XX).

3. The claimant has failed to serve the claim correctly by not abiding by the Pre-Action protocol for Debt Claims, on the basis that: - 

               a.    No copy of the contract (sign) accompanied any Letter of Claim and the Claimant has failed to meet the requirement to include “the fact that a copy of the written agreement can be requested from the solicitor” in accordance with para 3.1(a)(iv).

               b.    The Letter of Claim fails to “enclose an up-to-date statement of account for the debt, which should include details of any interest and administrative or other charges added.” in accordance with para 3.1(b)(i). The original Notice to Keeper was for £60, but the Letter of Claim is for £170 without any detail of the charges which have been added.

               c.    The letter of claim does not “enclose a copy of the Information Sheet and the Reply Form at Annex 1” of the protocol, in accordance with para 3.1(c).

1. As the Claimant has not conducted a trace, the Claimant has failed to meet the requirements pursuant to CPR 6.9(3): The claimant failed to take all reasonable steps to ascertain the Defendant’s address. Pursuant to XXX, the claimant has also failed to meet the obligations in the Pre-Action Debt Protocol.

2. Pursuant to 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.

DRAFT DEFENCE

1. The Defendant has a real prospect of defending the claim.

2. The Claimant has not issued a Notice to Keeper which meets the mandatory conditions required by the Protection of Freedoms Act 2012 (Schedule 4 - The Recovery of unpaid parking charges). There is therefore, pursuant to paragraph 7 and 9, no allowance in law to allow liability to transfer from a Driver to a Keeper, on the basis that: 

                   a.    Pursuant to paragraph 7(1)(2)(b), the Notice to Keeper failed to “inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;” There is no explanation as to how long the Driver could park and why the charges stated were now payable.

                   b.    Pursuant to paragraph 9(1)(2)(e), the notice to keeper fails to state that “the creditor does not know both the name of the driver and a current address for service for the driver”

                   c.    Pursuant to paragraph 9(1)(2)f, the Notice to Keeper fails to “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;”

                 d.    Pursuant to paragraph 4(5), the sum claimed exceeds the maximum that may be recoverable from a registered keeper. Therefore, even if the Notice To Keeper had been POFA compliant, the amount claimed is above the maximum allowed. The Claimant is put to strict proof of full compliance and liability transferred.

11.    Therefore, as the Claimant has not met the strict conditions set out in Schedule 4 of the Protection of Freedoms Act 2012, there is no legal basis for the Defendant to be held liable as Keeper, and the Claim must be struck out.

12.    If there was a case that the Court might not be satisfied that CPR 13.2 applied, I also submit that the Court should use its discretionary powers under CPR 13.3, as there is a profound prospect of defending this claim.

COSTS

1. In paragraph 21(vi), the Claimant states that “the matter could have been resolved prior to legal proceedings in the event the Defendant would have engaged with the Claimant”. In fact, as soon as the Defendant became aware of the matter, he wrote to the Claimant who chose not to respond. See Exhibit XX

2. The Claimant states in paragraph 16 that “The Defendant has been given ample opportunity to nominate a Driver (if it was not them) but has not. If the Defendant was not the driver, I respectfully submit they would have done so”. By extension of that logic, I submit that the Claimant would also conclude that a Defendant with evidence of them not being the driver, would have nominated a driver if they had known about the case (or chosen to defend it as Keeper). In this case, as there was no nomination of a driver or response to any correspondence, this logic supports the fact that the Defendant did not know of the case’s existence.

3. The claimant uses an automated bulk litigation business model, issuing Letters of Claim en masse to Keepers. The Claimant is fully cognisant they have no legal authority to do this as their POFA 2012 non-compliant Notice to Keepers do not allow Driver  liability to transfer to the Keeper. The claimant is also aware that they cannot assume a Keeper is also the driver, as it was clarified by the Parking and Traffic Appeals Service (‘PATAS’) and Parking on Private Land Appeals (‘POPLA’) Lead Adjudicator and barrister, Henry Michael Greenslade. With regards to keeper liability: 

1. “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort” (POPLA report 2015). (Exhibit XXX)

1. The claimant is a known serial litigator of Default County Court judgements, to the extent that the significance of the problem has led to previous Prime Ministers, Members of Parliament and the current Government to express concern and intervene. Exhibit XX.

2. In this case, the claimant has pursued the Defendant when they knew there was no legal authority to do so. This abuse of process and flouting of the regulations continually wastes the courts, and Defendants time, and is why there is significant effort on behalf of the Government to stop it.

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.

Coupon-mad

You talk about a LBC but was that ever served? If not then I wouldn't talk about it.

I'm not sure you need a supplementary WS. Most of these are just points to raise verbally at your hearing to set aside the CCJ and hopefully dismiss the claim on the spot, too.

If you have evidence that you weren't driving then that kills the claim as well as the CCJ because CP Plus never use the POFA.

But that's a legal argument (not for a WS). I think a clear point about how the NTK is 'non-POFA' should be added to the skelly, along with the authority of Excel v Smith (a persuasive appeal case about a keeper who wasn't driving) and also attach the POFA schedule 4.

Mars28

Thanks very much - I'll take your advice, I just felt that I wanted to counter some of the C's WS and use it to carry the additional evidence which I have now gained.

I've drafted by Skelly now. I hopefully it's better this time? (sorry for asking for so much help but not being able to give much back at the moment)

Oh and yes, I've collected photos and e-mails which show I couldn't have been the driver.

Skeleton Argument

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Failure to Serve Claim

1. Under CPR 13.2 the court must set aside a judgment entered under part 12 if judgment was wrongly entered.  As the defendant did not give an address to the claimant at which the claim could be served at (because the defendant was not asked) and the claimant did not conduct a trace (Exhibit XX)  to obtain the last known address of the Defendant in accordance with the British Parking Association’s Code of Practice, CPR 6.9 applies. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence." Given that CPR 6.9 (3) was not met, and the Pre Action Protocol for debt claims was not adhered to, CPR 13.2 applies and the CCJ should be set aside.

Address

1. DVLA address data may not be accurate. DVLA data is provided for a single (very limited) reason, so a parking operator can invite the keeper to name the driver or to pay, or to inform the keeper they will be liable if not, and about their right to appeal.

1. The system is called 'KADOE' (Keeper On Date of Event) because it is a brief 'snapshot in time' address to enable a parking firm to send a Notice. Operators are only allowed to ask the DVLA once, hence the BPA  code of practice requires reasonable steps are taken to check address details are current before litigation. Even if a motorist later updated a VC5 logbook with a new address (or if the DVLA failed to note a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.

1. The DVLA keeper data may be outdated (i.e. the keeper cannot be reached at that address) for millions of motorists as reported in Birmingham Live on 3 November 2021. The parking industry know this, hence Codes of Practice direct that further address checks must be made. This is further evidence that DVLA address data should not be solely relied upon.

1. The KADOE address is not provided by the DVLA as a 'court claim service address' and cannot be relied upon, because it's an address where the vehicle was kept at a historical point in time (which may not be where the keeper lives; it's where the car was reported 'kept' last time the DVLA heard).

1. There is no safe presumption that a DVLA vehicle address is or was a valid address where a Defendant can be served, especially months or years later, especially where there is reason to believe letters are not being received. Silence after sending a Notice to Keeper, a reminder and then a Letter before Claim is a clear indicator that the keeper may not live there.

1. A claim sent to an old DVLA address with no soft trace checks (costing as low as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the BPA Code of Practice and fails to satisfy the specific 'pre-action Protocol for debt claims' and is in breach of the CPRs about the obligation to take 'reasonable steps' to check a Defendant's address so that service is effective.

1. 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.”

Pre-Action Protocol for Debt Claims

1. The Pre Action Protocol for Debt Claims describes the conduct the court will normally expect of those parties prior to the start of proceedings. It includes a template Information Sheet and Reply Form to be provided to debtors in all cases.

1. The Defendant submits that the Claimant failed to submit a Letter of Claim as they failed to use the Defendant’s correct and readily available address, pursuant to CPR 6.9(3) and the British Parking Association's Code of Conduct.  However, if the Claimant haddone so, the Letter of Claim which the Claimant offers in their witness statement fails to meet the requirements set out in the Pre-Action Protocol for Debt claims  (Exhibit XX), on the basis that: - :

2.         There is no copy of the contract (sign) accompanied with the Letter of Claim, and the Claimant has failed to meet the requirement to include “the fact that a copy of the written agreement can be requested from the solicitor” in accordance with para 3.1(a)(iv).

1.         The Claimant  fails to “enclose an up-to-date statement of account for the debt, which should include details of any interest and administrative or other charges added.” in accordance with para 3.1(b)(i). The original Notice to Keeper was for £60, but the Letter of Claim is for £170 without any detail of the charges which have been added.        
   

1.          The Claimant fails to “enclose a copy of the Information Sheet and the Reply Form at Annex 1” of the protocol, in accordance with para 3.1(c).

1. Even though the Claimant failed to Serve the claim at all by using a wrong address,, these additional failures to adhere with the Protocol are raised to provide the court with additional evidence that process and procedures were not followed in accordance with the clear instructions provided by the Justice Department, adding to the position that the Claim was not Served correctly, i.e It was not Served at all.

Defending the Claim

No Keeper Liability

1. Under CPR 13.3, a court may set aside judgment entered under Part 12 if the defendant has a real prospect of successfully defending the claim; or it appears to the court that there is some other good reason why.

1. The Protection Of Freedoms Act 2012 (Schedule 4 - Recovery of Unpaid Parking Charges) (POFA 2012) (Exhibit XX)  sets out conditions on which liability can be passed to the keeper if the identification and address of the Driver is not known. It provides the legal Right to claim unpaid parking charges from the keeper of a vehicle.

1. Para 9 of POFA 2012 sets out strict conditions which a Notice must meet if it is to be relied on as a Notice to Keeper for the purposes of claiming unpaid parking charges from a keeper who may or may not also have been the driver. If these conditions are not entirely met, then there is no legal right for a Claimant to hold the Keeper of a vehicle liable for the actions of the driver. In this case, the Claimant’s Notice to Keeper failed to meet the conditions in para 9 of POFA, on the basis that it is missing: -

1.            Pursuant to paragraph 7(1)(2)(b), the Notice to Keeper failed to “inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;” There is no explanation as to how long the Driver could park and why the charges stated were now payable.

2.            Pursuant to paragraph 9(1)(2)(e), the notice to keeper fails to state that “the creditor does not know both the name of the driver and a current address for service for the driver”

3.             Pursuant to paragraph 9(1)(2)f, the Notice to Keeper fails to “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;”

4.            Pursuant to paragraph 4(5), the sum claimed exceeds the maximum that may be recoverable from a registered keeper. Therefore, even if the Notice To Keeper had been POFA compliant, the amount claimed is above the maximum allowed. The Claimant is put to strict proof of full compliance and liability transferred.
   

1. As the Defendant was not the Driver at the time of the event (Exhibit XX), and the Claimants Notice to Keeper did not meet the conditions required by POFA 2012 to grant the right to transfer liability for the event, there is no legal basis for the Defendant to be ‘sanctioned’ and this case is legally unenforceable.

1. There are two case laws which support:

1.         Excel Parking Services v Smith (Appeal) 08/06/2017 C0DP9C4E (Exhibit XX) as case law which establishes that the keeper cannot be held liable as  the driver without POFA. His Honour HHJ Smith sitting at Manchester County Court describes section 4 of PoFA as a ‘real remedy’ which allows parking companies ‘to take proceeding against a registered keeper of a vehicle in circumstances where the identity of the driver is not known’. However, Excel’s failure to comply with PoFA (just like the claimant’s) and the identity of the driver not being known, resulted in the appeal being allowed and the claims dismissed. His Honour HHJ Smith noted the main reason being the existence of this ‘remedy’ and Excel’s own decision to not comply with it. where the identity of the person who was actually driving the vehicle was not known, being persuaded to rule as such that the registered keeper could not be held liable. The case was dismissed.

“There is, of course, a specific regime within the Protection of Freedoms Act 2012, schedule 4, to allow a parking company in precisely these circumstances to take proceedings against a registered keeper of a vehicle in circumstances where the identity of the driver is not known. Excel did not choose to take such proceedings and instead rely today on the general law of agency.”

1.          Excel Parking Services v Lamoureux C3DP56Q5 judgment (No keeper liability) (Exhibit XX); District Judge Skalskyj-Reynolds at Skipton County Court ruled against the parking company for issuing a non-PoFA’ PCN, that could not hold the registered keeper of the vehicle liable;

“So unfortunately, I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012 or keeper liability.”

Claim is Dead

1. Given that more than 4 months has passed from issue of proceedings and service of the claim was defective (i.e. it was never served) the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process.There are several authorities for this: - (4 transcripts + extracts)
   

Coupon-mad

That looks better but isn't 'the Justice Department' American?

Mars28

Thanks. And you’re right again. I’ll change it to Ministry of Justice

Is there any case law or references which i could cite in an answer to why set aside application speed of response is based on when the CCJ is found, not from when it was issued?

Coupon-mad

Nope and no need. Their version is preposterous!

Mars28

Thanks. I've submitted my skelly and a load more evidence. Now counting down the days to my hearing and preparing my crib sheet, particularly to make a strong case for costs. Thanks so much for your help so far, its been a God send!