I want to fight 2 get my CCJ set aside (Thanks to you hero's giving me confidence that its possible)

Le_Kirk

I see you have been given excellent advice and to add my advice, do look for some set aside threads on NEWBIE sticky. I see you tagged @henrik777 and it's worth reading some of the threads on which he has posted. Also using the search facility will help, changing the drop down from "best match to ""newest"

Jazzagi81

@Le_Kirk Thanks for responding! I've read many set aside threads already, but your suggestion to sort by newest is a great idea! I have noticed as I've ready through that the advice has evolved over time and also legislation by the sounds of it, so that's super useful. 

Jazzagi81

@Coupon-mad @Le_Kirk @henrik777 @KeithB @B789

ok, I've had no response to my request for the consent to set aside so i have no choice but to apply to the court. As mentioned above, the links to templates on legalbeagles are broken so I've tried to scrape something together using worked examples from various forum threads. I hoped someone might be able to take a look and give me some advice re. whether i'm missing anything and also what other documents I should be sending.

My understanding is I need to send the following:

Form N244

Witness Statement

Documents referenced as Annexes (proof of address) 

I see mention of 'Draft Defence' and 'Draft Orders' but i'm not clear where they fit in?

I'll paste below my first attempt at the Witness statement:

******START*******

WITNESS STATEMENT OF DEFENDANT

1.    I am <full name> of <current address>, and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.   This is my supporting statement to my application dated <x March 2023> requesting to:

a. Set aside the default judgment dated <x January 2023> as it was not properly served at my current address.

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

Default Judgement

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

4.     I understand that the Claimant obtained a Default Judgment against me as the Defendant on <x January 2023>. I am aware that the Claimant is Hx Car Park Management Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice.

5.     The claim form was served to a previous address and I thus was not aware of the Default Judgment until 26th February 2023 when checking my credit report. 

6.     The address on the claim is <old address>. I moved to <new address> on <x November 2018>, and moved to my current address <xxxxxxx> on <xx April 2019>. In support of this please see <evidence of previous addresses> (Annex A), and <evidence of current addresses> (Annex B )

7.     I have never received any notification of the claim from the claimant but provided with the particulars of the claim in an email from CCBC and understand that the claim relates to a parking charge in <xxxxxxxxxxxxxxxxxx> on <X April 2022>.

8.     I was not the driver of the vehicle (What else do i put here?)

9.   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;

Sequence of Recent Events

10.   On 26 February 2023 I checked my credit rating in preparation for my mortgage renewal and found a CCJ dated 09 January 2023 had been lodged onto my credit file.

11.   On 27 February 2023 I contacted the County Court Business Centre to obtain relevant information relating to this default judgment.

12.   On 28 February 2023 In an act of desperation I paid £277 to <xx Solicitors> via their online portal

 13.   On 14 March 2023 I emailed <x solicitors> to explain that I had not received any notification from them for the charge or the court order and asked them for consent to set the default judgment aside. I received an automated email acknowledgment but have had no response to my request.

14.   On <x March 2023> I submitted my case in order to set-aside this judgment and fairly present my case.

15.   I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

16.   On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The Claimant did not take reasonable steps to ascertain the address of my current residence. This has led to the claim being incorrectly served to an old address and an irregular judgment.

17.   Under CPR 13.2 The court must set aside a judgment entered under part 12 if the judgment was wrongly entered.  Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside.

18.   The Defendant was 'there to be found' for the sake of a 29pence bulk Experian trace or similar very inexpensive and immediate credit reference agency address check. I would then have been notified of this judgment and could have taken action to prevent it. A failure to carry out proper checks to establish the right 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.  

The Claimant acted wholly unreasonably by negligently or deliberately disregarding all rules and caused the claim to be improperly served. They failed to serve it at all. 

19.     To supplement point xx of my Witness Statement I refer to the British Parking Association Code of Practice 2012 - Version 7, January 2018, clause 23.1c which states:

“Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the Notice To Driver / Notice To Keeper /reminder letters, take reasonable endeavours to ensure that the person being written to is the correct party.”

The Private Parking Code of Practice published on 7 February 2022 by the Secretary of State for the Department for Levelling Up, Housing and Communities further states:

“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).”

20.   Given that more than 4 months has passed from issue of proceedings and service of the claim was defective (i.e. it was never served) the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process.  The Defendant has incomplete details of this claim, therefore, 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 xxxxxxxxxxxxxx

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

22.   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.

23.   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." 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.” 

24.   Considering the above I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £275 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.

signed & dated

Annex A

xxxxxx

Annex B

xxxxx

Annex C

xxxxxxxxx

******End*******

I don't fully understand the 4 months dead thing, so not sure if that applies to my case?

Also, I feel like I'm missing something about the fact it was not even me driving the car at the time of the parking event?

I would be so so grateful if you could take a look, I'm going to have to wait until Friday to submit this as that's when I get paid and I don't have another spare £275 after already paying the court order of £277 this month

Jazzagi81

Also, in case it's of any use, below is the details of the claim: 

THE DRIVER OF THE VEHICLE WITH REGISTRATION xxx (THE 'VEHICLE') PARKED IN BREACH OF THE TERMS OF PARKING STIPULATED ON THE SIGNAGE (THE 'CONTRACT') AT xxx, ON xxx THUS INCURRING THE PARKING CHARGE (THE 'PCN'). THEPCN WAS NOT PAID WITHIN 28 DAYS OF ISSUE. THECLAIMANT CLAIMS THE UNPAID PCN FROM THE DEFENDANT AS THE DRIVER/KEEPER OF THE VEHICLE. DESPITE DEMANDS BEING MADE, THE DEFENDANT HAS FAILED TO SETTLE THEIR OUTSTANDING LIABILITY. THE CLAIMANT CLAIMS £100 FOR THE PCN, £60.00 CONTRACTUAL COSTS PURSUANT TO THE CONTRACT AND PCN TERMS AND CONDITIONS, TOGETHER WITH STATUTORY INTEREST OF £9.38 PURSUANT TO S69 OF THE COUNTY COURTSACT 1984 AT 10.25% PER ANNUM, CONTINUING AT £0.04 PER DAY.

I have made a request to the parking firm to send me all the data they hold on me but I've not received anything as yet. I'm wondering if i should also make a data request to the solicitors in case it's of use (and may as well give them some work to do since they have ignored my emails) 

Coupon-mad

Nope just crack on with the N244 bundle.

Your attachments are numbered exhibits, not 'annexes' and should include a screen-grab of the IPC Code of Practice clause that makes it mandatory for AOS members to check addresses, if filing a claim more than 12 months after the PCN.

Assuming there was more than a year between.

I really wish you hadn't paid that £277!  Read the outcome by @parkingpains1 today which is our normal achievement here.  People pay nothing.

Le_Kirk

Your witness statement should be written in the first person as YOU are the witness, so change "the defendant" to "I" then search the forum for Draft Order which tells the judge what you want and this is submitted as a Word document so the judge can fill in the date(s) apart from the date the CCJ was issued.

Jazzagi81

@Le_Kirk @Coupon-mad

Ok, update…. I finally got a court date for 17th July, CCBC took 10 weeks to review my application and then sent it to the wrong court as they used my old address The latest horrendous interest rate increases mean it’s even more important that I get this CCJ removed or we’ll most likely be forced to sell our home due to our fixed term deal finishing at the end of August. It’s going to be very close. Can anyone point me towards any advice for the actual hearing? Someone mentioned it might be worthwhile sending a summary or smth to the judge in advance as they like it because it saves them time, but I’m not sure what I can add in addition to what was written in the witness statement. 

Also checking if there is any ‘new’ developments in this area that I might have missed, unlikely this government will have made any progress in clamping down on the parking sharks but perhaps other completed cases that have offered anything useful and relevant to my case? 

Any assistance greatly appreciated! I’m feeling pretty nervous and on the edge of tears when I think about this whole situation but trying to remain strong and optimistic. 

Coupon-mad

Something big is due this month "before Summer Parliamentary Recess" but whether it is released by the DLUHC before 17th July, I'm unsure. 

Can't guess but come here every day that week to check if the DLUHC's draft Impact Assessment wording helps you!

DO NOT VOICE THIS (BELOW) AT THE HEARING:

"The latest horrendous interest rate increases mean it’s even more important that I get this CCJ removed or we’ll most likely be forced to sell our home due to our fixed term deal finishing at the end of August. It’s going to be very close."

AVOID THAT THOUGHT!

"Credit cleansing" the Judge will think. No.

What did you put as your Witness Statement with the N244?

Heard anything from the Claimant's solicitor?  Do you think they've sent their witness statement to your old address?!

Jazzagi81

@Coupon-mad thank you for responding! Much appreciated. 

"Something big is due this month"

Can you share anymore about, what is the subject of the impact assessment? If it's directly related perhaps just the fact it's being looked at is useful. Would be just my luck that it gets released the day after my case, but I'll definitely keep an eye out. 

"AVOID THAT THOUGHT!"

Understood!

"Heard anything from the Claimant's solicitor?  Do you think they've sent their witness statement to your old address?!"

No I haven't had anything! Are they supposed to send me a witness statement direct? or would that come from the court? I could chase the court up maybe.  
Update - Yes! Just today. I've pasted into a more recent comment. 

"What did you put as your Witness Statement with the N244?"

See below:

WITNESS STATEMENT OF DEFENDANT

Case Ref: (Removed by Forum Team)

I am (Removed by Forum Team) of (Removed by Forum Team), and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge.

This is my supporting statement to my application dated 17th April 2023 requesting to:

a. Set aside the default judgment dated 9th January 2023 as it was not properly served at my current address.

Default Judgement

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

2.     I understand that the Claimant obtained a Default Judgment against me as the Defendant on 9th January 2023. I am aware that the Claimant is Hx Car Park Management Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice.

3.     The claim form was served to a previous address and I thus was not aware of the Default Judgment until 26th February 2023 upon checking my credit report.

4.     The address on the claim is (Removed by Forum Team). I moved out of that property on 12th October 2018 and moved to my current address (Removed by Forum Team) on 12th April 2019. In support of this please see evidence of the sale of my previous address (Exhibit 1), and evidence of my current address (Exhibit 2)

5.     I have not to this date received any notification of the claim, nor the proceedings, from the claimant, I was provided with basic information regards the claim in an email from CCBC and understand that the claim relates to a parking charge at 10 Square Road, Halifax on 11th April 2022.

6.     Despite several attempts, I have been unable to obtain particulars of the claim from the claimant, however, the parking space mentioned in the information from CCBC appears to be a blue badge parking bay which would mean it is highly likely I was not the driver of the vehicle when the alleged event took place.

7.     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;

Sequence of Recent Events

7.1       On 26th February 2023 I checked my credit rating in preparation for my mortgage renewal and found a CCJ dated 9th January 2023 had been lodged onto my credit file.

7.2        On 27th February 2023 I contacted the County Court Business Centre to obtain relevant information relating to this default judgment.

7.3       On 28th February 2023 In an act of desperation I paid £277 to the claimants representative Gladstones Solicitors via their online portal.

7.4        On 13th March 2023 I emailed Gladstones Solicitors to explain that I was not the driver of the vehicle and had not received any notification from them for the charge or the court order, due to their sending it to an incorrect address and asked that they consent to set the default judgment aside.

7.5       On 5th April 2023 I received an email from Gladstones Solicitors declining my request to provide consent to set the CCJ aside but stating that they would not oppose any application made of my own volition on the proviso that I do not seek to recover any monies paid nor the cost of the application itself.

 7.6      On 17th April 2023 I submitted my case in order to set-aside this judgment and fairly present my case.

8.         I believe the Claimant has behaved wholly unreasonably in pursuing a claim against me without ensuring they held my correct contact details at the time of the claim.

9.         On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address at which I no longer reside. The Claimant did not take reasonable steps to ascertain the address of my current residence. This has led to the claim being incorrectly served to an old address and an irregular judgment.

10.        Under CPR 13.2 The court must set aside a judgment entered under part 12 if the judgment was wrongly entered.  Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside.

11.        I was 'there to be found' for the sake of a 29pence bulk Experian trace or similar very inexpensive and immediate credit reference agency address check. If this were done I could then have been notified of this judgment and could have taken action to prevent it. A failure to carry out proper checks to establish the right 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. 

The Claimant acted wholly unreasonably by negligently or deliberately disregarding these rules and caused the claim to be improperly served. They failed to serve it at all.

12.        To supplement point 6 of my Witness Statement I refer to the British Parking Association Code of Practice 2012 - Version 7, January 2018, clause 23.1c which states:

“Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the Notice To Driver / Notice To Keeper / reminder letters, take reasonable endeavours to ensure that the person being written to is the correct party.”

The Private Parking Code of Practice published on 7 February 2022 by the Secretary of State for the Department for Levelling Up, Housing and Communities further states:

“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).” (Screenshot of gov.uk web page provided in Exhibit 3)

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

14.        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.

15.        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." 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.”

16.        Considering the above I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside.

 

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.

 

 

…………………………………………………………….

(Removed by Forum Team) (Defendant)

Dated 17th April 2023

 

Exhibit 1

Completion Statement - Proof of sale of previous address (Removed by Forum Team) 

Exhibit 2

Council Tax Bill - Proof of current address (Removed by Forum Team)

 

Exhibit 3

Private Parking Code of Practice Screenshot

Fruitcake

You have quoted from the BPA CoP. I thought you were up against an IPC member and therefore should have used the IPC CoP as previously advised by Coupon-mad.