CCJ hearing

mezzyd

Just a small question with regard to a hearing to ask for a set aside of a CCJ in default:

Is it ok to defend as the keeper without naming the driver? Is it likely to be asked as a direct question, “were you the driver?”, & if so is it ok to refuse to say? 

Apologies if this is included elsewhere & many thanks

Coupon-mad

I remember you from another thread!  I am so glad you are still here and helping others to fight these:

I have never received a parking charge notice on private land, but am trying to help out members of my not-so-wise family. 

My advice is honesty is the best policy so admit to driving if they were, and before the CCJ set aside hearing, file and serve a skeleton argument and costs assessment.

As seen in the CCJ threads recently by:

@verdomde

@eb23456

Umkomaas

Is it ok to defend as the keeper without naming the driver?

If the PPC's NtK is compliant with the Protection of Freedoms Act 2012 (Schedule 4), that defence is pointless and won't stand up. But as @Coupon-mad says, honesty is the best policy. 

bargepole

The question of whether or not you were driving is not relevant to a set aside hearing. That may come up later, if the Judgment is set aside, and the Court orders a substantive hearing of the claim

For a set aside, the Judge needs to know two things:

1. Was the Judgment correctly obtained, and if not it is a compulsory set aside under CPR 13.2. Otherwise it's a discretionary set aside under CPR 13.3.

2. Does the Defence disclose a real prospect of success?

Bear in mind that getting a Judgment set aside is usually only half the battle. It resets the case to the claim stage, and then the parties will need to file and serve witness statements and evidence ahead of a final hearing.

mezzyd

Thanks everyone.

I think the CCJ may have been correctly obtained as unfortunately the claim letter was overlooked 🤦‍♀️ in a mountain of post, but we’re asking for set aside due to prospect of successful defence against the claim

I don’t think the NtD/NtK are POFA compliant as don’t specify the period of parking or the relevant land properly, but first argument would be no contract formed due to driver only being there for a couple of minutes plus no evidence of landowner authority. Otherwise relying on abuse of process precedent as they have claimed the extra £70 plus interest.

I’m thinking then of not volunteering the identity of the driver but if asked directly to answer truthfully, based on your advice?

Thanks very much 

Coupon-mad

Bear in mind that getting a Judgment set aside is usually only half the battle. It resets the case to the claim stage, and then the parties will need to file and serve witness statements and evidence ahead of a final hearing.

...unless @Johnersh's '4 months dead' argument works, which it has done more than once recently.

Backed up by the 3 authorities of Boxwood, M&S and Croke (as seen in recent skeleton arguments/witness statements on threads like the two mentioned above).

Hence why that argument is so vital to get across at the hearing, as it ends the claim too.  Doesn't stop a PPC re-issuing to the right address but we've not seen it happen yet as that's throwing good money after bad against a clued-up Defendant who they know won't fold easily.

So I think question 2 for the Judge is this and I'll add a point 3 to help focus the sppellant:

2. Should the claim be struck out entirely for want of service within 4 months, and in the alternative (if the court is not satisfied that it should) does the Defence disclose a real prospect of success?

3.  If the application succeeds, has the conduct of the Claimant in failing to carry out sufficient checks of the address before filing the claim (and directly breaching the Code of Practice) met the bar of unreasonable conduct such that the C should be ordered to refund the Defendant's costs?

Not_A_Hope

Sounds like the PPC got the right address but the 'claim letter was overlooked' hence the default judgement.