Help with a CCJ Set Aside please?

Mars28

Just working up my crib card to help me at the hearing. 

Can anyone advise me any laws or rules which mean I don’t have to Nominate the driver if the judge asks? Otherwise it’s just me saying you wouldn’t want to get it wrong by nominating wrongly when I wasn’t there, but that’s quite a flimsy excuse 

thanks

Coupon-mad

Reading the PoFA Guidance may help:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9155/guidance-unpaid-parking-charges.pdf

Also the Impact Assessment from 2011, where the DFT considered but rejected the idea of obliging keepers to name drivers (this explains why that was rejected):
https://www.parliament.uk/globalassets/documents/impact-assessments/IA12-004F.pdf

Then Google search Excel v Lamoureux and read that court transcript where a Judge understood that a keeper doesn't have to name the driver.


Finally, search this forum for:

Henry Greenslade POPLA ANNUAL REPORT 2015 keeper liability which will show you what that previous (very good) POPLA Lead Adjudicator, barrister and parking law expert had to say about there being no legal presumption within POFA 2012 of a keeper driving, nor any obligation upon the keeper to name the driver (unlike in a NIP situation from the Police).

Mars28

As ever, thanks very much C-M, really useful to have in my back pocket.

tomorrow I’m going to collate some additional evidence to support the argument that the C behaved unreasonably. I want to make sure there is plenty provided to the judge to make them award costs, if I can.

Umkomaas

tomorrow I’m going to collate some additional evidence to support the argument that the C behaved unreasonably.

Any evidence you will be presenting to the judge must also be copied to the Claimant. You are not allowed to 'ambush'.

Mars28

Thanks very much for that. I phrased it badly, I meant add references to my crib points to where they haven’t acted reasonably, like implying I’m liable as keeper on the NTK, and stating I’m liable as Keeper in the LOC, and POC, against BPA rules.

re-reading some of the case files, makes for good reading when you see the tide turn against the C! 

Mars28

Crib ready for court. Been doing some reading on costs, and slightly confused. Is it unlikely that I will get get costs because it's a small claim court? (Reference Excel Vs Lamoureux) or should I at least expect set-aside fee and litigant in person costs as per some of the discussions on here (assumes I hammer home the unreasonable conduct argument)

Trying to go back through some of the threads to see the previous advice but struggling to find what I am looking for, probably because i've been staring at this too long tonight.

I'll ask for costs what ever happens, but wondered if there was anything to reference if the Judge was uncertain about awarding them? So far I've only CPR 46.5 but couldnt see anything on unreasonable conduct allowances

Coupon-mad

You should certainly get the £275 fee ordered against the Claimant, as that usually happens (nothing is guaranteed though, as it depends on the Judge). You might also get travel costs and £95 (or half for a half day) for loss of leave.

The rest depends if the case meets the high bar for unreasonable conduct as explained in Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269

https://radcliffechambers.com/wp-content/uploads/2022/03/Junior-Programme-March-2022.pdf

Mars28

Thanks very much for all your help so far. My CCJ has now been set aside and claim against me as keeper thrown out, though I do need to return to defend as driver - which should be easy enough as I have lots of evidence showing I couldn’t possibly have been.

I need to draft a defence and a witness statement for the next hearing, but I cant help they’ll be fairly similar - I wasn’t the driver. Making sure I also get costs will be important but I think I have plenty of hooks for the judge on that also.

judge was awesome - I barely had to speak as my WS did all the work and the C had no comebacks - thanks for everyone’s advice, especially C-M

Coupon-mad

Good news!

But you must make sure that the Order from this 'awesome Judge' does state that your costs are reserved, if he/she didn't order your £275 to be immediately repaid by the C.

You will get a written Order and IT MUST reserve your costs till later, or they are in the bin.  The C can currently discontinue the claim and walk away (cost free, leaving you to shoulder the £275) if costs are not reserved.

Mars28

I think that’s what we agreed. I was definitely being led to defer a decision on costs until the next hearing, and I agreed that costs should be reserved, rather than the terminology the judge used.

Still waiting for anything from the court, might call tomorrow for clarification, especially as I’m now worried!