DCB Legal Letter of Claim - UKPC

B789

You need to go back and rewrite your WS in the first person. Not "The Defendant did this and that" but "I did this and that".

EDITED TO ADD: Err... forget what I just wrote above. I see it is a Defence, so yes, should be in the third person. However, too many instances of "I" in amongst the "Defendant" bits. Also, it reads like War & Peace. Way, way too long. Your defence should be a series of legal hooks that you will later hang your defence on. Short, punchy and only defending what is in the PoC.

Then again, I may be reading this all wrong... is it a WS to go with a set aside application?

Coupon-mad

The CCJ won't be set aside because you sent a SAR they didn't reply to.  That's the wrong reasons.

preloved1416

Am I able to edit the WS to focus more on the fact they did not acknowledge my AOS and shouldn’t have made a default judgement?

The hearing is next Friday. I am worried about being questioned and not prepared 

B789

Who is the "they" in your "they did not acknowledge my AOS"?

preloved1416

The court, I received a default judgement despite sending an AOS - I reported this missing to Royal Mail and have a claim number 

preloved1416

I want to be as prepared as possible and would be really grateful for some help. 

If I amend my WS and defence (will share) do I need to send this to anyone before the hearing? and are these the only documents I will need with me on the day? 

I can share snippets of the claimants WS if needed.

B789

You need to make it clear in your WS exactly what you are saying. From what I can gather, without going back through the whole thread, you received a default CCJ because no AoS was received. But... and correct me if I'm wrong, the Claimant is not at fault for the failure of the CBCC not receiving your AoS. Instead of using the MCOL to file your AoS, you sent it on a paper form by post, possibly during the strikes. You did not get any proof of posting and the postal AoS was never received.

Why would you get an acknowledgement if the court never received it? The Claimant checked the system and noted that AoS had not been filed and was perfectly within their right to request a default judgment.

You have filed for a set aside without consent because the Claimant refused to consent. You complained to the CCBC but they have shrugged it off as not their fault as you can't provide any evidence of having posted your AoS.

It would seem that you are requesting the set aside based on CPR 13.3, not CPR 13.2. That means that you request is at the discretion of the court and there is no obligation to grant it. So, you need to persuade the court that, on the balance of probabilities, you did send your AoS by post and it got lost because of the postal strike at the time. If the judge accepts you explanation, then, under CPR 13.3, your request for the set aside should be considered as you have a real prospect of defending the claim.

With that in mind, get your head around what you need to have your WS and draft defence say.

To summarise, you are requesting the set aside because of circumstances that you didn't control correctly but as you are allowed to file your AoS by post, you need to persuade the judge that, had any one element of the circumstances not failed, then the claim would have been acknowledged and you would have defended it robustly as per your draft defence.

I'm not sure that I can explain it any more simply. With that in mind, do some research on other set aside cases, of which there are many on the forum, and redo the essential bits that cover the reason for the set aside and show a robust defence for the original claim.

Also, have look at the CPR and try and get your head around exactly what is required:

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13#13.3

preloved1416

Updated Witness Statement:

I am the Defendant against whom this claim is made. The facts stated below are true to the best of my belief and my account has been prepared based upon my own knowledge. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the Defendant ever ‘agreed to pay within 28 days’ and denies all liability. The Defendant submitted an AOS to the court, meeting all deadlines as set out in the claim and has good prospects of defending the claim. The judgement in default should therefore be set aside. 

I make this Witness Statement in support of the application for an order that the judgment in this case to: 

1. Be set aside the Default Judgment dated 13/March/2023 as the Defendant submitted an AOS on 23/February/2023 that was never acknowledged and/ or received. 

1. Order for the Claimant to pay the Defendant £275 as reimbursement for the set aside fee. 

1. Order for the original claim to be dismissed 

  

1. SET ASIDE THE DEFAULT JUDGMENT 

1.1. I was the registered keeper of the vehicle at the time of the alleged offence. 

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 13/March/2023. I am aware that the Claimant is UKPC Limited, and that the assumed claim is in respect of unpaid Parking Charge Notices from 22/02/2018, 25/02/2018, 02/03/2018, 10/03/2018, 11/03/2018 at xxx I contest this charge for the reasons outlined in Part 2 of this defence.  

1.3. Prior to this submission, I conducted my own research to the best of my ability. I would like to bring to the court’s attention that the Defendant isn’t a lawyer or solicitor and any research or work completed is done to the best of the Defendant’s ability. 

1.4. I received a Default Judgement on 16-March-2023 following a letter through the post, dated 13-March-2023 from the County Court Business Centre. As an AOS was submitted on XX in an envelope sealed and with a first class stamp, posted at xxxxx Post Office to the CCBC at Northampton. I have since reported this letter missing to Royal Mail, claim no XX. Thus the defendant was not aware a Judgement could be made by default. I am prepared to swear this on oath if required, but in any event, under the Interpretation Act 1978 the letter enclosing my completed Acknowledgement of Service is deemed delivered two working days later.  There were no postal strikes at the time and no suggestion of a lack of normal service by Royal Mail

1.5. Following this on the same day,16-March-2023, the Defendant immediately called the County Court Business Centre (by the time the Defendant was home from work to receive the letter and make the call, the phone line was closed). The Defendant called again at 8:30am on 17-March-2023 to obtain any relevant information regarding this Default Judgement. From here, the Defendant managed to confirm the validity of the claim. The Court also confirmed that this was a real Default Judgement and not a scam or a false one. I called to get a grasp of the situation and to understand how the default judgement was made despite the submission of an AOS. Also, to know what action I needed to take to ensure my credit file was not affected. Despite being 3 or 4 weeks behind on paperwork, the staff member was unable to find the letter in their piles of work.  This suggests they have either mislaid or misfiled it, or just not found it yet in the outstanding piles of papers, and this unfortunate oversight by the CCBC does not rebut the interpretation afforded on deemed delivery under the above Act. They advised me to submit a N244 and include this information . 

1.6. On 17-March-2023, the defendant completed the N244 and started to write up her witness statement. 

1.7. An AOS was submitted, though not received, or acknowledged. The AOS was submitted using the physical form included in the Claim Form letter, as advised by the Claim Form, and sent via Royal Mail. If the Defendant had access to the evidence relating to the claim, she could have acted more efficiently to deal with such complaints and cancel charges. The Court suggested that Royal Mail strikes could be to blame for the AOS not reaching the Court files. 

1.8. On the basis provided above the Defendant would suggest that the Claimant did not fulfil their duty to provide sufficient evidence when bringing the claim. The court must set aside the claim. 

1.9. The Defendant believes that the Default Judgement against her was issued incorrectly and thus should be set aside. 

The Defendant have a real prospect of defending this claim because: - 

2. ORDER DISMISSING THE CLAIM 

2.1 On discovering this Default judgement and after promptly contacting the County Court Business Centre on the 17-march-2023 to find out details of the Default Judgement. The Defendant understands that the Claimant is a Parking Company which seeks to claim for ‘Parking Charge Notices’ which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist. 

2.4 If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a ‘Parking Charge Notice’, the Defendant thus dispute the claim in its entirety as she does not know the wording of the contract nor does She know the means by which the contract was alleged to come into force. 

2.6  The Defendant understands Parking Control Management Ltd to be a Private Parking Company that uses ‘Parking Attendants’ in order to issue ‘Parking Charge Notices’. Any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. This includes the requirement to issue the Notice to Keeper within 14 days of the alleged incident. If the Claimant has not complied with the requirements of the Act they cannot claim this charge against the Defendant as the Registered Keeper in any case and where said keeper is unable to identify the driver. 

2.8 Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car after over 12 months later, in this case over 3 years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument. 

2.9 For the Claimant to have obliged the Defendant to provide the drivers details at the time of said breach the Claimant would be required to apply for a ‘Norwich Pharmacal Order’, the Defendant is not aware of any such order being made upon her. 

2.10 Furthermore, given the time delay of approximately more than 12 months from the alleged breach of contract, it is unreasonable to expect the Defendant to have a record of who was driving the vehicle at the time of the offence. 

2.11 The Defendant further submits that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons: 

2.11.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car parking street in question and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass. 

2.11.2. No contract with the Claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to Civil Enforcement Ltd. 

2.12 On this basis the Defendant believes that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety. 

2.13 Alternatively, if the Claimant disagrees with the above, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least all of the following information: 

2.13.1. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge 

2.13.2. A copy of any contract it is alleged was in place (e.g. copies of signage) 

2.13.3. How any contract was concluded (if by performance, then copies of signage maps in place at the time) 

2.13.4. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper 

2.13.5. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter 

2.13.6. If charges over and above the initial charge are being claimed, the basis on which this is being claimed 

2.13.7. If Interest charges are being claimed, the basis on which this is being claimed. 

2.13.8. Evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a brazen attempt at triple 'recovery' reaching over £800 despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed). 

2.13.9. Show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant. 

2.14. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence. 

2.15. In order to make informed decisions and statements in my defence as keeper of a vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant. 

2.18. On this basis I believe that the Claimant has not provided any reasonable cause of action and absent the above being produced in short order, the Defendant asks the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs for attending, namely the £275 Court fee in bringing this set aside case , despite not being shown to be liable for any parking charge at all. 

The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success. 

Is this revision to my WS more accurate?

(Should this all be written as I or the defendant) - sorry if obvious.

Coupon-mad

2.9 should be removed, it's not relevant and much of that section is off on a tangent.

Renumber everything with normal numbering.

Remove this, it is a non-point:

"The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the Defendant ever ‘agreed to pay within 28 days’ and denies all liability."

You need to attach proof of your Royal Mail complaint as an exhibit.  The fact you posted the AOS is your main point to support your application (but DO NOT use the acronym AOS!).

1505grandad

A heads-up  -  there is no middle "e" in Judgment which has been included in some spellings of that word.