Help with CCJ Set aside vs Capital Car Park Control

stickyToffee_pudding

Hey,
     Thank you all for providing a ton of info in the NEWBIES thread and multiple CCJ set aside reference threads to understand the process for setting aside a CCJ.

I received a letter from Dcbl 2 weeks ago (7th October 2022) to my current address about an outstanding CCJ judgement, the first time I heard about it!
I am now working to get the CCJ set aside using @Mars28 as a template.

I have
- Called CCBC to find the claimant, one "Terry Szmidt T/A Capital Car Park Control", the PCN was issued October 2022
- Put a SAR request with the claimant (awaiting a reply)
- Sent an email to dcbl to about the SAR request with the claimant, to put the case on hold for 30 days
- Sent an email to the claimant to set aside the CCJ with consent

Since I have not heard anything back from the claimant for setting aside with consent, I am working on my draft order and witness statement.

But I am not clear how the "claim is dead as not served within 4 months" is calculated.
My CCJ default judgment date was August 2022. So assume the 4 month dead clause does not apply in my case?

Also, considering I don't know anything about the alleged PCN besides the location of issue from the PoC, It is difficult to write a proper defence. But this is what I have so far

Draft Order

It is ordered that:

1. The judgment dated XXXXXX be set aside
2. The claim be struck out as the claimant is a stranger to the alleged contract. All parking signs on site were in the name of Capital Car Park Control LTD, not Terry Szmidt T/A Capital Car Park Control (the claimant), two totally different organisations.
3. The claimant to pay the Defendant’s costs of this application of £275 plus the cost to attend the hearing on an indemnity basis

Witness Statement

Terry Szmidt T/A Capital Car Park Control (Claimant)

V

XXXXXXX (Defendant)

---

WITNESS STATEMENT

---

1. I am XXXXXXX 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.
2. This is my supporting statement to my application dated XXXXXX requesting:

a.         Mandatory set aside for the default judgment dated XX August 22 as it was served using an old address, pursuant to CPR 13.2, and as I received no correspondence I was unable to defend myself.

b. An order for the original claim to be dismissed as the claimant is a stranger to the alleged contract. All parking signs on site were in the name of Capital Car Park Control LTD, not Terry Szmidt T/A Capital Car Park Control (the claimant), two totally different organisations.

c.     An order for the claimant to pay the defendant £275 as reimbursement for the set aside fee, plus the cost to attend the hearing and relevant litigation in person costs.

DEFAULT JUDGMENT

1. I was the registered keeper of the vehicle at the time of the alleged parking event.
2. I understand that the Claimant obtained a Default Judgment against me as the Defendant on XX August 22. I am aware that the Claimant is Terry Szmidt T/A Capital Car Park Control, and that the assumed claim is in respect of an unpaid Parking Charge Notice from XX October 2021.
3. Since the claim form was not served at my current address, I was not aware of the Default Judgment until 07 October 22 when I received a letter from Direct Collection Baliffs Ltd (DCBL) to my current address alerting me of an unpaid CCJ dated XX August 2022.
4. The claim form was submitted to Address 1: XXXXXXXX. I moved out of this address Dec 2020, then lived at Address 2: XXXXXXXXXX from XX until XX and subsequently Address 3: XXXXXXXXXX. Evidence of this is provided by council tax bill for Address 1 (Exhibit A), council tax bill for Address 2 (Exhibit , council tax bill for Address 3 (Exhibit C). No correspondence regarding this claim was received before 07 October 2022 at Address 3. Address 3 has been my main residence as shown on my credit file. Evidence of this is provided as Exhibit D. Address 3 is my own home and permanent residence.
5. I have not received any documentation relating to this case from the Claimant and therefore I was never able to properly challenge the Claimant’s Claim.
6. I was ‘there to be found’ via an inexpensive bulk credit check as I had a permanent address on my record, at XXXXXX. This address was registered to my bank statements, mortgage and credit file. (Exhibit E).
7. The claimant’s failure to take reasonable steps to ascertain the address of the Defendants current residence, having received no return correspondence from me whatsoever following their assumed multiple attempts to reach me at an old address, has led to the claim being incorrectly served to an old address and an irregular judgment, pursuant to CPR 6.9 (3). Thus they have caused the claim to be improperly served. I.e. They failed to serve it at all.
   1. CPR 6.9 (3): “Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).”
8. This failure to carry out proper checks to establish the correct 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.
9. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) by simply using an old address where the Defendant did not reside. The Claimant has behaved unreasonably by negligently or deliberately disregarding the rules whilst pursuing a claim against the Defendant without confirming the correct contact details at the time of the claim.
10. The Claimant has also failed to adhere to their own Code of Practice, The BPA Approved Operator Code of Practice (Version 7, January 2018), which states that.
11. 'Before serving a Letter Before Claim and prior to issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavors to ensure that the person being written to is the correct party.’ [Ref para 23.1c].
12. This requirement for ‘reasonable endeavors’ is expanded on and better explained by the Government in the new Code of Practice which is currently temporarily delayed but states:
    1. If a driver, keeper or hire company does not respond to a notice of parking charge or subsequent correspondence, or a parking charge has not been paid in full, reasonable endeavors - including contacting credit reference agencies to undertake a ‘soft trace’ - must be undertaken by the parking operator and/or its appointed debt recovery agent to establish the correct correspondence details of the driver, keeper or hire company before commencing enforcement action. Where a new address is discovered the notice of parking charge should be re-issued at the original rate but with a further 28 days from service for a response (payment or appeal).’ [Ref Section 10]
13. 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.
14. Further to the Defendants points in paragraphs 5 to 13, I also refer to the following authorities to support that claim is defective as it was not served to a “last known address”:
    1. HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

b)      HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)

1. Additionally, CPR 13.3 also applies. I am still awaiting additional information from the Claimant before I can draft my outline defence, but I believe there are already very good reasons to set aside this claim:
   1. The claimant is a stranger to the alleged contract. All parking signs on site were in the name of Capital Car Park Control LTD, not Terry Szmidt T/A Capital Car Park Control (the claimant), two totally different organisations.
   2. The claim includes an exaggerated, disproportionate and indeed, false 'debt recovery' sum. In fact, no debt recovery occurred nor cost the claimant any money whatsoever, in addition to the original parking charge. The Government has described the false fixed 'fee' of £70 as 'designed to extort money from motorists' in the new statutory Code of Practice this February, and has banned it.
2. The Defendant has no details of this claim, however, if the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing the Defendant with the information required under the pre-action protocol for debt claims. Issued this time to the correct address for service for this Defendant, which is XXXXX.
3. 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 I have quickly obtained the necessary information, attempted to resolve this with Capital Car Park Control Ltd and ultimately submitted the case application within 3 weeks of discovering the Default Judgment. Additional details:
   1. On 7 October 22 I discovered the default County Court Judgment (CCJ) on my credit file. I immediately obtained a report from Trust Online and called the Northampton County Court Business Center to find out the particulars of the CCJ.
   2. On 12 October 22 I submitted a Subject Access Request (SAR) to Capital Car Park Control to get details of the PCN and claim against me. (Exhibit F) I am still awaiting a full response.
   3. On 13 October 22 I wrote to Capital Car Park Control to raise the issue of them not serving the claim form correctly, and highlighted where they had failed to conduct any due diligence in serving the claim form to my correct address. I offered them an opportunity to rectify this by drawing up and submitting a consent order to set aside this CCJ by 20 October 22. (Exhibit G) However they have not responded other than to acknowledge receipt of my letter.
   4. On 25 October 22, having had no response to my letter dated 13 October 22 from Capital Car Park Control, I submitted my case to the Court in order to set-aside this judgment and fairly present my case.
4. No paperwork has ever been received regarding this CCJ, and if I had received it I would have acted promptly in addressing the matter, as I am doing now.
5. According to publicly available information, my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system across the country.
6. The Government is seeking to address poor practice and behavior of some parking operators, which has led to a Parking (Code of Practice) Act 2019 being introduced by Sir Greg Knight MP. This Act seeks to address the inherent unfairness of Private Parking firms who often adopt a “labyrinth system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees”
7. Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. 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."
8. 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.” Furtherance to points raised in 1.4 above.
9. I have also read the consultation on Default County Court Judgments by Ministry of Justice published 21 February 2018. Some key excerpts are: ‘the claimant must consider whether there is an alternative place or method by which the claim may be served’. And, ‘Department for Communities and Local Government (DCLG) is reforming parking practices and has already taken steps to tackle rogue private parking operators, including banning wheel clamping and towing. DCLG is fully aware of the concerns related to County Court Judgments that follow parking charges and is considering how they can deliver standardised practice across all parking companies, eliminating unfair charges and reducing the instances of claims where the consumer may be unaware of a parking charge being applied’. ‘Where the claimant is unable to ascertain the defendant’s current postal address, the claimant may apply to the Court for service at an alternative place. This may include service via an email address if the claimant and defendant have been in communication via those means and the Court agrees this is appropriate’.
10. I believe the Claimant’s practice is a clear example that parking companies’ conduct is not anymore used as a deterrent for citizens to park insensibly, majority of which are law abiding, instead an impending and instantaneous launch of legal action against most of them, leading to default Judgment by Court in 85% of the 1.1 million cases in year 2016/2017, and majority of these were parking tickets.
11. Considering all above I submit that the Claimant has not met the service requirements of CPR 6.9. respectively:

a)    Service has not been effected at a valid address

1. I therefore submit that the court should set aside the judgment entered under part 12 as judgment was wrongly entered, given that CPR 6.9 (3) was not met and thus CPR 13.2 applies, requiring the CCJ to be set aside.
2. If there was a case that the Court might not be satisfied on above grounds, 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 because of several reasons (draft defence attached).
3. Considering the above and that I was unable to defend this claim, I respectfully request that the Court sets aside the Default Judgment against me, and dismisses the claim in its entirety. I also request the Court to kindly consider the reimbursement of the fee of £275 plus the cost to attend the hearing and relevant litigation in person costs from the Claimant, should this request be successful.

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.

Full Name: XXXXXXX  (Defendant)

Dated: 25th October 2022

Signed: XXXXXXX

Draft Defence

The facts as known to the Defendant:

1. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.
2. The claimant is a stranger to the alleged contract. All parking signs on site were in the name of Capital Car Park Control LTD, not Terry Szmidt T/A Capital Car Park Control (the claimant), two totally different organisations.
3. The claim includes an exaggerated, disproportionate and indeed, false 'debt recovery' sum. In fact, no debt recovery occurred nor cost the claimant any money whatsoever, in addition to the original parking charge. The Government has described the false fixed 'fee' of £70 as 'designed to extort money from motorists' in the new statutory Code of Practice this February, and has banned it.

Coupon-mad

That is not a defence (and would be struck out as showing no prospects of success) so remove the bit you have called a 'draft defence'.

Put right this Americanism (wow, I hate American spelling!): "endeavors"

stickyToffee_pudding

Noted about binning the draft defence and fixing the americanisms

Should I also remove the following from the Draft Order?

1. The claim be struck out as the claimant is a stranger to the alleged contract. All parking signs on site were in the name of Capital Car Park Control LTD, not Terry Szmidt T/A Capital Car Park Control (the claimant), two totally different organisations.

stickyToffee_pudding

Reading you comment again @Coupon-mad and considering the weakness of the defence (due to the lack of information at this point!), I feel I should not confuse the Judge talking about CPR 13.3 in my Witness Statement and stick to CPR 13.2, mandatory set-aside for not serving the claim correctly. Would that be better?
Presume at the hearing, if the Judge asks, I could verbally talk about a defence? Or is that leaving it too late?

Coupon-mad

I was just saying that defence (as written) is weak...not that you have no defence.  Everyone has a defence against a PPC...as shown in the Template Defence sticky.

stickyToffee_pudding

Got it thanks! Should I focus on my defence now or can I do it after (hopefully) setting aside the judgment?
I am just worried it has already been over 2 weeks since I was made aware of the claim, so in two minds if I should devote time on a proper defence now or later. 

Updated Witness statement with americanisms removed. Under 13.3, I have also removed the note about the claimant being a stranger to the contract (this I had initially taken from another Capital Car Control thread)

Terry Szmidt T/A Capital Car Park Control (Claimant)

V

XXXXXXX (Defendant)

---

WITNESS STATEMENT

---

1. I am XXXXXXX 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.

2. This is my supporting statement to my application dated XXXXXX requesting:

a.     Mandatory set aside for the default judgment dated XX August 22 as it was served using an old address, pursuant to CPR 13.2, and as I received no correspondence I was unable to defend myself.

b. An order for the original claim to be dismissed as the claimant is a stranger to the alleged contract. All parking signs on site were in the name of Capital Car Park Control LTD, not Terry Szmidt T/A Capital Car Park Control (the claimant), two totally different organisations.

c.     An order for the claimant to pay the defendant £275 as reimbursement for the set aside fee, plus the cost to attend the hearing and relevant litigation in person costs.

DEFAULT JUDGMENT

1. I was the registered keeper of the vehicle at the time of the alleged parking event.

2. I understand that the Claimant obtained a Default Judgment against me as the Defendant on XX August 22. I am aware that the Claimant is Terry Szmidt T/A Capital Car Park Control, and that the assumed claim is in respect of an unpaid Parking Charge Notice from XX October 2021.

3. Since the claim form was not served at my current address, I was not aware of the Default Judgment until 07 October 22 when I received a letter from Direct Collection Baliffs Ltd (DCBL) to my current address alerting me of an unpaid CCJ dated XX August 2022.

4. The claim form was submitted to Address 1: XXXXXXXX. I moved out of this address Dec 2020, then lived at Address 2: XXXXXXXXXX from XX until XX and subsequently Address 3: XXXXXXXXXX. Evidence of this is provided by council tax bill for Address 1 (Exhibit A), council tax bill for Address 2 (Exhibit and council tax bill for Address 3 (Exhibit C). No correspondence regarding this claim was received before 07 October 2022 at Address 3. Address 3 has been my main residence as shown on my credit file. Evidence of this is provided as Exhibit D. Address 3 is my own home and permanent residence.

5. I have not received any documentation relating to this case from the Claimant and therefore I was never able to properly challenge the Claimant’s Claim.

6. I was ‘there to be found’ via an inexpensive bulk credit check as I had a permanent address on my record, at XXXXXX. This address was registered to my bank statements, mortgage and credit file. (Exhibit E).

7. The claimant’s failure to take reasonable steps to ascertain the address of the Defendants current residence, having received no return correspondence from me whatsoever following their assumed multiple attempts to reach me at an old address, has led to the claim being incorrectly served to an old address and an irregular judgment, pursuant to CPR 6.9 (3). Thus they have caused the claim to be improperly served. I.e. They failed to serve it at all.

1. CPR 6.9 (3): “Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).”

8. This failure to carry out proper checks to establish the correct 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.

9. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) by simply using an old address where the Defendant did not reside. The Claimant has behaved unreasonably by negligently or deliberately disregarding the rules whilst pursuing a claim against the Defendant without confirming the correct contact details at the time of the claim.

10. The Claimant has also failed to adhere to their own Code of Practice, The BPA Approved Operator Code of Practice (Version 7, January 2018), which states that.

11. 'Before serving a Letter Before Claim and prior to issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the person being written to is the correct party.’ [Ref para 23.1c].

12. This requirement for ‘reasonable endeavours’ is expanded on and better explained by the Government in the new Code of Practice which is currently temporarily delayed but states:

1. If a driver, keeper or hire company does not respond to a notice of parking charge or subsequent correspondence, or a parking charge has not been paid in full, reasonable endeavours - including contacting credit reference agencies to undertake a ‘soft trace’ - must be undertaken by the parking operator and/or its appointed debt recovery agent to establish the correct correspondence details of the driver, keeper or hire company before commencing enforcement action. Where a new address is discovered the notice of parking charge should be re-issued at the original rate but with a further 28 days from service for a response (payment or appeal).’ [Ref Section 10]

13. 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.

14. Further to the Defendants points in paragraphs 5 to 13, I also refer to the following authorities to support that claim is defective as it was not served to a “last known address”:

1. HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

b)      HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)

1. Additionally, CPR 13.3 also applies. I am still awaiting additional information from the Claimant before I can draft my outline defence, but I believe there are already very good reasons to set aside this claim:

1. The claim includes an exaggerated, disproportionate and indeed, false 'debt recovery' sum. In fact, no debt recovery occurred nor cost the claimant any money whatsoever, in addition to the original parking charge. The Government has described the false fixed 'fee' of £70 as 'designed to extort money from motorists' in the new statutory Code of Practice this February, and has banned it.

2. The Defendant has no details of this claim, however, if the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing the Defendant with the information required under the pre-action protocol for debt claims. Issued this time to the correct address for service for this Defendant, which is XXXXX.

3. 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 I have quickly obtained the necessary information, attempted to resolve this with Capital Car Park Control Ltd and ultimately submitted the case application within 3 weeks of discovering the Default Judgment. Additional details:

1. On 7 October 22 I discovered the default County Court Judgment (CCJ) on my credit file. I immediately obtained a report from Trust Online and called the Northampton County Court Business Centre to find out the particulars of the CCJ.

2. On 12 October 22 I submitted a Subject Access Request (SAR) to Capital Car Park Control to get details of the PCN and claim against me. (Exhibit F) I am still awaiting a full response.

3. On 13 October 22 I wrote to Capital Car Park Control to raise the issue of them not serving the claim form correctly, and highlighted where they had failed to conduct any due diligence in serving the claim form to my correct address. I offered them an opportunity to rectify this by drawing up and submitting a consent order to set aside this CCJ by 20 October 22. (Exhibit G) However they have not responded other than to acknowledge receipt of my letter.

4. On 25 October 22, having had no response to my letter dated 13 October 22 from Capital Car Park Control, I submitted my case to the Court in order to set-aside this judgment and fairly present my case.

4. No paperwork has ever been received regarding this CCJ, and if I had received it I would have acted promptly in addressing the matter, as I am doing now.

5. According to publicly available information, my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system across the country.

6. The Government is seeking to address poor practice and behaviour of some parking operators, which has led to a Parking (Code of Practice) Act 2019 being introduced by Sir Greg Knight MP. This Act seeks to address the inherent unfairness of Private Parking firms who often adopt a “labyrinth system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees”

7. Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. 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."

8. 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.” Furtherance to points raised in 1.4 above.

9. I have also read the consultation on Default County Court Judgments by the Ministry of Justice published 21 February 2018. Some key excerpts are: ‘the claimant must consider whether there is an alternative place or method by which the claim may be served’. And, ‘Department for Communities and Local Government (DCLG) is reforming parking practices and has already taken steps to tackle rogue private parking operators, including banning wheel clamping and towing. DCLG is fully aware of the concerns related to County Court Judgments that follow parking charges and is considering how they can deliver standardised practice across all parking companies, eliminating unfair charges and reducing the instances of claims where the consumer may be unaware of a parking charge being applied’. ‘Where the claimant is unable to ascertain the defendant’s current postal address, the claimant may apply to the Court for service at an alternative place. This may include service via an email address if the claimant and defendant have been in communication via those means and the Court agrees this is appropriate’.

10. I believe the Claimant’s practice is a clear example that parking companies’ conduct is not anymore used as a deterrent for citizens to park insensibly, majority of which are law abiding, instead an impending and instantaneous launch of legal action against most of them, leading to default Judgment by Court in 85% of the 1.1 million cases in year 2016/2017, and majority of these were parking tickets.

11. Considering all above I submit that the Claimant has not met the service requirements of CPR 6.9. respectively:

a) Service has not been effected at a valid address

1. I therefore submit that the court should set aside the judgment entered under part 12 as judgment was wrongly entered, given that CPR 6.9 (3) was not met and thus CPR 13.2 applies, requiring the CCJ to be set aside.

2. If there was a case that the Court might not be satisfied on above grounds, 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 because of several reasons (draft defence attached).

3. Considering the above and that I was unable to defend this claim, I respectfully request that the Court sets aside the Default Judgment against me, and dismisses the claim in its entirety. I also request the Court to kindly consider the reimbursement of the fee of £275 plus the cost to attend the hearing and relevant litigation in person costs from the Claimant, should this request be successful.

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.

Full Name: XXXXXXX  (Defendant)

Dated: 25th October 2022

Signed: XXXXXXX

Coupon-mad

The numbering is odd; keeps returning to 1 but maybe that's just here in this thread?

Where you talk about the need to take 'reasonable steps' to find your last known address I didn't see you mention that a 'soft trace' costs from just 29 pence, and clearly the DCB Group had no trouble whatsoever in locating you after a soft trace done (far too late) after judgment.

Should I focus on my defence now?

No. But you don't seem to have drafted a separate (word doc) Draft Order.

stickyToffee_pudding

First pass of the Draft Order

---

DRAFT ORDER

_________________________________

IN THE COUNTY COURT

Terry Szmidt T/A Capital Car Park Control (Claimant)

V

XXXXXXX (Defendant)

CLAIM No: xxxxxx

Upon reading the Defendant's application and the annexed witness statement dated XXXXXXX

It is ordered that:

1. The default judgment dated xxxxxx be set aside pursuant to CPR 13.2.
2. The Claimant to pay the Defendant’s costs of this application of £275 plus the cost to attend the hearing on an indemnity basis.
3. All enforcement be put on hold pending the outcome of the application.
4. Should the court reserve costs in the case as an alternative to paragraph 2, such costs of this application will become payable if the claimant discontinues it's claim.

stickyToffee_pudding

Here is my cost assessment

---

Defendant’s Costs Assessment

N244 application fee = £275

Loss of earnings through attendance of court hearing = £95

TOTAL COSTS CLAIMED = £370

Coupon-mad

Looks good. Make sure that the Draft Order is attached as a Word Doc; everything else as a PDF.

Being a grammar pedant, there is a greengrocer's apostrophe in your penultimate word: "it's".

stickyToffee_pudding

Thanks a lot for taking a look. Much appreciated!
My updated witness statement, fixed the number and includied the note about the 29p soft trace.

Terry Szmidt T/A Capital Car Park Control (Claimant)

V

XXXXXXX (Defendant)

---

WITNESS STATEMENT

---

1. I am XXXXXXX 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.

2. This is my supporting statement to my application dated XXXXXX requesting:

1. Mandatory set aside for the default judgment dated XX August 22 as it was served using an old address, pursuant to CPR 13.2, and as I received no correspondence I was unable to defend myself.

2. An order for the claimant to pay the defendant £275 as reimbursement for the set aside fee, plus the cost to attend the hearing and relevant litigation in person costs.

DEFAULT JUDGMENT

1. I was the registered keeper of the vehicle at the time of the alleged parking event.

2. I understand that the Claimant obtained a Default Judgment against me as the Defendant on XX August 22. I am aware that the Claimant is Terry Szmidt T/A Capital Car Park Control, and that the assumed claim is in respect of an unpaid Parking Charge Notice from XX October 2021.

3. Since the claim form was not served at my current address, I was not aware of the Default Judgment until 07 October 22 when I received a letter from Direct Collection Baliffs Ltd (DCBL) to my current address alerting me of an unpaid CCJ dated XX August 2022.

4. The claim form was submitted to Address 1: XXXXXXXX. I moved out of this address Dec 2020, then lived at Address 2: XXXXXXXXXX from XX until XX and subsequently Address 3: XXXXXXXXXX. Evidence of this is provided by council tax bill for Address 1 (Exhibit A), council tax bill for Address 2 (Exhibit and council tax bill for Address 3 (Exhibit C). No correspondence regarding this claim was received before 07 October 2022 at Address 3. Address 3 has been my main residence as shown on my credit file. Evidence of this is provided as Exhibit D. Address 3 is my own home and permanent residence.

5. I have not received any documentation relating to this case from the Claimant and therefore I was never able to properly challenge the Claimant’s Claim.

6. I was ‘there to be found’ via an inexpensive bulk credit check as I had a permanent address on my record, at XXXXXX. This address was registered to my bank statements, mortgage and credit file. (Exhibit E).

7. The claimant’s failure to take reasonable steps to ascertain the address of the Defendants current residence, 

1. A 'soft trace' costs from just 29 pence and clearly the DCB Group had no trouble whatsoever in locating me after a soft trace was done but far too late after judgment.

2. Having received no return correspondence from me whatsoever following their assumed multiple attempts to reach me at an old address, has led to the claim being incorrectly served to an old address and an irregular judgment, pursuant to CPR 6.9 (3). Thus they have caused the claim to be improperly served. I.e. They failed to serve it at all.

3. CPR 6.9 (3): “Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).”

8. This failure to carry out proper checks to establish the correct 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.

9. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) by simply using an old address where the Defendant did not reside. The Claimant has behaved unreasonably by negligently or deliberately disregarding the rules whilst pursuing a claim against the Defendant without confirming the correct contact details at the time of the claim.

10. The Claimant has also failed to adhere to their own Code of Practice, The BPA Approved Operator Code of Practice (Version 7, January 2018), which states that.

1. 'Before serving a Letter Before Claim and prior to issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the person being written to is the correct party.’ [Ref para 23.1c].

11. This requirement for ‘reasonable endeavours’ is expanded on and better explained by the Government in the new Code of Practice which is currently temporarily delayed but states:

1. If a driver, keeper or hire company does not respond to a notice of parking charge or subsequent correspondence, or a parking charge has not been paid in full, reasonable endeavours - including contacting credit reference agencies to undertake a ‘soft trace’ - must be undertaken by the parking operator and/or its appointed debt recovery agent to establish the correct correspondence details of the driver, keeper or hire company before commencing enforcement action. Where a new address is discovered the notice of parking charge should be re-issued at the original rate but with a further 28 days from service for a response (payment or appeal).’ [Ref Section 10]

12. 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.

13. Further to the Defendants points in paragraphs 5 to 13, I also refer to the following authorities to support that claim is defective as it was not served to a “last known address”:

1. HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

2. HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)

14. Additionally, CPR 13.3 also applies. I am still awaiting additional information from the Claimant before I can draft my outline defence, but I believe 

1. The claim includes an exaggerated, disproportionate and indeed, false 'debt recovery' sum. In fact, no debt recovery occurred nor cost the claimant any money whatsoever, in addition to the original parking charge. The Government has described the false fixed 'fee' of £70 as 'designed to extort money from motorists' in the new statutory Code of Practice this February, and has banned it.

15. The Defendant has no details of this claim, however, if the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing the Defendant with the information required under the pre-action protocol for debt claims. Issued this time to the correct address for service for this Defendant, which is XXXXX.

16. 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 I have quickly obtained the necessary information, attempted to resolve this with Capital Car Park Control and ultimately submitted the case application within 3 weeks of discovering the Default Judgment. Additional details:

1. On 7 October 22 I discovered the default County Court Judgment (CCJ) on my credit file following a letter from the DCB group. I immediately obtained a report from Trust Online and called the Northampton County Court Business Centre to find out the particulars of the CCJ.

2. On 12 October 22 I submitted a Subject Access Request (SAR) to Capital Car Park Control to get details of the PCN and claim against me. (Exhibit F) I am still awaiting a full response.

3. On 13 October 22 I wrote to Capital Car Park Control to raise the issue of them not serving the claim form correctly, and highlighted where they had failed to conduct any due diligence in serving the claim form to my correct address. I offered them an opportunity to rectify this by drawing up and submitting a consent order to set aside this CCJ by 20 October 22. (Exhibit G) However they have not responded other than to acknowledge receipt of my letter.

4. On 25 October 22, having had no response to my letter dated 13 October 22 from Capital Car Park Control, I submitted my case to the Court in order to set-aside this judgment and fairly present my case.

17. No paperwork has ever been received regarding this CCJ, and if I had received it I would have acted promptly in addressing the matter, as I am doing now.

18. According to publicly available information, my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system across the country.

19. The Government is seeking to address poor practice and behaviour of some parking operators, which has led to a Parking (Code of Practice) Act 2019 being introduced by Sir Greg Knight MP. This Act seeks to address the inherent unfairness of Private Parking firms who often adopt a “labyrinth system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees”

20. Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. 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."

21. 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.” Furtherance to points raised in 1.4 above.

22. I have also read the consultation on Default County Court Judgments by the Ministry of Justice published 21 February 2018. Some key excerpts are: ‘the claimant must consider whether there is an alternative place or method by which the claim may be served’. And, ‘Department for Communities and Local Government (DCLG) is reforming parking practices and has already taken steps to tackle rogue private parking operators, including banning wheel clamping and towing. DCLG is fully aware of the concerns related to County Court Judgments that follow parking charges and is considering how they can deliver standardised practice across all parking companies, eliminating unfair charges and reducing the instances of claims where the consumer may be unaware of a parking charge being applied’. ‘Where the claimant is unable to ascertain the defendant’s current postal address, the claimant may apply to the Court for service at an alternative place. This may include service via an email address if the claimant and defendant have been in communication via those means and the Court agrees this is appropriate’.

23. I believe the Claimant’s practice is a clear example that parking companies’ conduct is not anymore used as a deterrent for citizens to park insensibly, majority of which are law abiding, instead an impending and instantaneous launch of legal action against most of them, leading to default Judgment by Court in 85% of the 1.1 million cases in year 2016/2017, and majority of these were parking tickets.

24. Considering all above I submit that the Claimant has not met the service requirements of CPR 6.9. respectively:

1. Service has not been effected at a valid address

1. I therefore submit that the court should set aside the judgment entered under part 12 as judgment was wrongly entered, given that CPR 6.9 (3) was not met and thus CPR 13.2 applies, requiring the CCJ to be set aside.

25. Considering the above and that I was unable to defend this claim, I respectfully request that the Court sets aside the Default Judgment against me, and dismisses the claim in its entirety. I also request the Court to kindly consider the reimbursement of the fee of £275 plus the cost to attend the hearing and relevant litigation in person costs from the Claimant, should this request be successful.

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.

Full Name: XXXXXXX  (Defendant)

Dated: 25th October 2022

Signed: XXXXXXX