CCJ from Old Address - Seeking Advice on Draft Order and WS

Troublesum1

Coupon-mad said:

They are of course (as often happens, as you've hopefully seen on other CCJ threads galore?) consenting to the set aside but they want "NO ORDER AS TO COSTS".

Obviously that's not OK with you, which you MUST robustly state at your hearing.

They claim they did a “UK Search” to find any alternative address and that they did find such an address but got no response from said address so were unable to serve the LBC there.

Hmmm...

any evidence of that soft trace? Thought not.  

Hi Coupon,

Honestly I had not seen that I just focused on the combative side of everyone's threads my fault. Ok so I will continue on track to the hearing. I'm assuming the hearing will be cantered around the motion of setting aside the CCJ and I will just have to prove that I was not in the served address at the time (which I can easily do)? I'm starting to lose a bit of faith in my defence for the actual tickets in questions though..

Coupon-mad

Yes that is right and you will have to point out that there's no evidence that they ever did a soft trace at all, and even if they did, they can't just revert back to the known to be older address!

That's not just sharp practice, it's in breach of the CPRs and in breach of the Code of Practice.  You must push your view that this MUST surely be "unreasonable conduct", the CCJ solely caused by the Claimant knowingly using an old address.  As such, the CCJ MUST be set aside under CPR 13.2 (it is mandatory, where a claim was not served) and should surely be ordered by the Court to repay your costs in full.

But you MAY also be asked by the Judge, what your defence will be, should the CCJ be set aside but if the 'dead' claim not struck out for want of service within 4 months.

So you must be confident to state whatever your PCN defence is about (unclear signage?).  

Troublesum1

Coupon-mad said:

Yes that is right and you will have to point out that there's no evidence that they ever did a soft trace at all, and even if they did, they can't just revert back to the known to be older address!

That's not just sharp practice, it's in breach of the CPRs and in breach of the Code of Practice.  You must push your view that this MUST surely be "unreasonable conduct", the CCJ solely caused by the Claimant knowingly using an old address.  As such, the CCJ MUST be set aside under CPR 13.2 (it is mandatory, where a claim was not served) and should surely be ordered by the Court to repay your costs in full.

But you MAY also be asked by the Judge, what your defence will be, should the CCJ be set aside but if the 'dead' claim not struck out for want of service within 4 months.

So you must be confident to state whatever your PCN defence is about (unclear signage?).  

I've attached part of the evidence in the Claimant WS. Its quite hard I think to argue unclear signage (although I will do if I have nothing else).

My defence for the ticket was twofold:

1) Argue that I had been unfairly treated by the apartment management. Kept on the parking permit waiting list for years in a residence that had no access to residential parking permit from the council (stated in the Tenancy Agreement) and therefore nowhere else to park
2) Additional fees charged by claimant on top of ticket are egregious

I think point 1, though very true, may be a little too much of a sob story to hold up in court unfortunately.

Coupon-mad

Point 2 isn't a defence against the £100 though, only against the extortionate add-on.

Saying the MA treated you badly isn't a defence either.  You need more.  Have you read the example residential defences on the Newbies thread?

Troublesum1

Coupon-mad said:

Point 2 isn't a defence against the £100 though, only against the extortionate add-on.

Saying the MA treated you badly isn't a defence either.  You need more.  Have you read the example residential defences on the Newbies thread?

I have had a look at those example defences. The issue is that there was no allocated parking at the residence - despite the parking being exclusive to residents. You had to own and display a parking permit. There is almost no mention of parking in my tenancy agreement - in fact the only mention is the following:

The Tenant acknowledges they have been made aware that as part of the Landlord’s planning obligations (1.1. under Schedule 4 of the S106 Agreement) the Tenant or any resident or occupier of XXX is not permitted to use or apply for a permit to park a vehicle in a place designated in an Order made under section 45(2) of the Road Regulation Act 1984 (unless the occupant is the holder of a disabled person’s badge issued pursuant to section 21 of the Chronically Sick and Disabled Persons Act 1970)

As I understand it this just confirms that I was not allowed to apply for a council parking permit. Does the fact there is no mention of any parking rules in my tenancy agreement give me the possibility to suggest, coupled with the fact there is specific residential parking for the apartment block, that I had a given right to park without a permit displayed (despite UKPC signage)?

They have a lot of pictures of my vehicle (at the time) in the parking bay with the sign nearby - I'll attach. The pictures will show in a random order but essentially the ticket from the 1st June was at 10pm (dark) and the ticket from 4th June was in the daytime. The 1st June (dark) pictures, it could be argued do not show the signage sufficiently but I would say the 4th June pictures probably do. Through my research I've seen cases dismissed due to inadequate photos.

Coupon-mad

Yes, I see what you mean, but at your set aside hearing, neither those photos (unless the C has submitted them in their bundle) nor your tenancy will be in evidence.

Which is a good thing because if the Judge isn't convinced that a mandatory set aside under CPR 13.2 is made out, you can remind the Judge that CPR 13.3 is also in play and it is only right and just as a tenant (not a trespasser) that you should be allowed to defend this claim as you would always have done.  Hopefully they will agree that you have good prospects of success as a tenant defendant, with a more than arguable case.

Then you can vaguely say that your defence would be based on your primacy of contract, as a tenant known to the site agents who should have put your car on the 'white list' and notified the parking operator - and none of this was within your control. And secondly, you believe the signs were sparse snd not legible from much of the site, and you intend to show that in evidence. 

Troublesum1

Coupon-mad said:

Yes, I see what you mean, but at your set aside hearing, neither those photos (unless the C has submitted them in their bundle) nor your tenancy will be in evidence.

Which is a good thing because if the Judge isn't convinced that a mandatory set aside under CPR 13.2 is made out, you can remind the Judge that CPR 13.3 is also in play and it is only right and just as a tenant (not a trespasser) that you should be allowed to defend this claim as you would always have done.  Hopefully they will agree that you have good prospects of success as a tenant defendant, with a more than arguable case.

Then you can vaguely say that your defence would be based on your primacy of contract, as a tenant known to the site agents who should have put your car on the 'white list' and notified the parking operator - and none of this was within your control. And secondly, you believe the signs were sparse snd not legible from much of the site, and you intend to show that in evidence. 

The pictures are unfortunately from their (the Claimant's) witness bundle. My tenancy agreement however is not in their bundle. They do have an agreement they signed with the building management in there though.

Coupon-mad

OK, push REALLY hard for a mandatory set aside. Be clear what CPR 13.2 says and make sure the Judge knows the court has no discretion....a claim not properly served MUST see a CCJ set aside.

Troublesum1

Coupon-mad said:

OK, push REALLY hard for a mandatory set aside. Be clear what CPR 13.2 says and make sure the Judge knows the court has no discretion....a claim not properly served MUST see a CCJ set aside.

Ok and as I understand it I am saying this claim was not properly served as there is no evidence of any attempt from the Claimant to find my new address upon receiving no reply from their first correspondence - which incidentally was sent after I moved from the residence and also would have been my first knowledge of the PCNs as there was no windscreen ticket given (cooberated by C's WS)

Coupon-mad

Yep.  And even if they did trace a new address, why didn't they use the co firmed newest address for the claim? 

Using or reverting to (known to be very unreliable) DVLA car reg data is not acceptable by any interpretation, which is why this is a CLEAR BREACH of the Code of Practice (have that clause ready).

Read in full, the thread by @Jack5656 as he had quite a battle I think, to explain to a Judge that parking firms CANNOT just assume an unreliable DVLA car address is 'good enough' for service of a claim.  It isn't provided as a reliable 'service address' for court action purposes, which is why the Code requires a soft trace (address check).

Plenty of Judges think that getting DVLA data is all a PPC has to do, and start questioning the Defendant about their 'fault' of not updating their V5C quickly.

Irrelevant!

A PPC can only get DVLA data once and would never know if a person had moved.  Hence the mandatory Trace before litigation.  Be ready to explain what a PPC can and can't do under their mandatory Code of Practice.