Set aside CCJ - did not receive claim form

Coupon-mad

That'll do.  All of that together plus using my words in her WS about the situation meeting the CPR 13.3 test, plus her evidence of disability and holiday, plus her draft defence, should hopefully get a set aside.

But she won't get her £275 fee back.

Maybe (unless she qualifies for Help with fees?) she's best first asking the scammers to consent to set aside, based on her evidence that she is about to submit with her N244. If they consent then the fee is £108.

If she is exempt from fees then crack on.

Jamran

Coupon-mad said:

That'll do.  All of that together plus using my words in her WS about the situation meeting the CPR 13.3 test, plus her evidence of disability and holiday, plus her draft defence, should hopefully get a set aside.

But she won't get her £275 fee back.

Maybe (unless she qualifies for Help with fees?) she's best first asking the scammers to consent to set aside, based on her evidence that she is about to submit with her N244. If they consent then the fee is £108.

If she is exempt from fees then crack on.

Here is the WS adding your point

Draft order

Upon reading the defendant's application dated 20th February 2023

It is ordered that,

1.         The judgment for claimant dated 17th March 2023, be set aside as the claim form was never received at the defendant’s address.

2.         The claimant to pay the Defendant's cost of £180 for  time in preparation (12 hours as litigant in person at a rate of £15 per hour).

3.         The original claim be dismissed.

 

Witness Statement 

I am the defendant in this matter. This is my supporting Statement to my application dated ........requesting to:

1.         Set aside the default judgment dated 17th March 2023, as it was not properly served at my current address.

2.         Order for original claim to be dismissed. 

3.         Order for the claimant to pay the defendant £180 for time in preparation (12 hours as a litigant in person at a rate of £15 per hour).

1.         I understand that the claimant obtained a default judgment against me as the Defendant on 17th March 2023.

I am aware that the claimant is UK Parking Control Ltd, and that the assumed claims in respect of unpaid Parking Charge Notices.

1.         The claim form was not served at my current address and I thus was not aware of the Default judgment up until the arrival of the letter of judgment from the County Court Business Centre on the 22/03/23

2.         The missing claim has still not turned up to date, thus it remains unserved.

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 discovered a CCJ was lodged against my name on the 22/03/23 tarnishing my impeccable credit history. 

4.         In addition of not receiving the claim form, I was abroad from 11/02/23 to 11/03/23, so would have been able to respond even if it did get served correctly. 

5.         I acted promptly by immediately  contacting the CCBC on 23/03/23 raising my concern in relation to the Default judgment only to be told by the court administrator that they do not know why I did not receive the claim form as it was sent

6.         I contacted CCBC again on Monday 27/04/2023to obtain more information asking for the Particular Of Claim be emailed to me.

7.         I also refer to CPR 13.2(the court must set aside a judgment entered under part 12 if judgment was wrongly entered).

8.         In addition I refer to CPR 13.3, which states:

 

13.3

(1) In any other case, the court may set aside) or vary a judgment entered under Part 12 if –

 

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

            

The defence in itself meets the "some other good reason" in CPR 13.3 to set aside the CCJ at the court's discretion in the interests of justice.

 

9.         I submit the CCJ should be set aside under CPR 13.2(a) as the claim form was not served.

10.       Should the judgment be set aside. I am confident I can robustly defend the original Parking Charge Notice.

11.       I also enclose a copy of my defence. This shows that the Defendant has very good chances of successfully defending this claim, should the court not in fact strike this claim out.

12.       I am prepared to swear on oath that the claim was not served and that is still the position to date.

13.        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 of trust without an honest in its truth.

Should I include her disability in the WS or leave that for the defence?

Umkomaas

Order for the claimant to pay the defendant £180 for time in preparation (12 hours as a litigant in person at a rate of £15 per hour).

L-I-P rate is £19 per hour. 

Coupon-mad

I think the parts that say 'the claim was not properly served' are incorrect.  AFAIK the address was right so the C did everything right in that respect. In law it IS 'deemed delivered' unless she can 'prove' to the contrary (on the balance of probabilities) which is where your supporting WS comes into play, to lend that point more weight.

She should instead give an a, b, c of reasons:

(a) it was not received (at all) - see witness statement from YOU attached

(b) she was abroad when the claim was supposedly sent - evidence of flights attached

(c) the claim itself - from what she can ascertain, not having actually seen the claim form - is meritless with no breach of a 'relevant contract or obligation' (per POFA 2012 schedule 4) and the conduct of the Claimant in issuing the PCN breaches the Equality Act 2010 such that the claim will not withstand defence by this disabled Defendant.  See draft defence attached.


This date is wrong:

"Upon reading the defendant's application dated 20th February 2023".

So is this one (future?):

"6.         I contacted CCBC again on Monday 27/04/2023 to"

And she's missing the word 'not' here:

"so would have been able to respond"

And you haven't said what the defence is...nothing about her disability?

You didn't use all the words I gave you.  It's not just the defence, you've chopped my sentence. I said a combination of two things should tip the balance:

I think/hope the fact she was abroad, plus that defence in itself meets the "some other good reason" in CPR 13.3 to set aside the CCJ at the court's discretion in the interests of justice.

And I suggested she refer to YOUR WS and say that you too will swear on oath that no claim arrived, not just her.  Not this alone:

12.       I am prepared to swear on oath that the claim was not served and that is still the position to date.

Jamran

I thought her defence is not included in the WS? I’m not too familiar with it all I’m afraid. This is why I haven’t included her defence on the WS. 

Jamran

Here’s some additions and editing done. Please do tell me if it’s not good enough and I’ll fix it. I am quite confused about where to give the defence. I was under the impression that I submit a draft and WS just laying out the facts. In terms of defence I thought I’ll include that all in the defence itself. 

Draft order

Upon reading the defendant's application dated 14thApril 2023

It is ordered that,

1. The judgment for claimant dated 17th March 2023, be set aside as the claim form was never received at the defendant’s address. 

2. The claimant to pay the Defendant's cost of £180 for  time in preparation (12 hours as litigant in person at a rate of £15 per hour).

3. The original claim be dismissed.

 

Witness Statement 

I am the defendant in this matter. This is my supporting Statement to my application dated ........requesting to:

1. Set aside the default judgment dated 17th March 2023, as:

a) it was not received at all (please see Witness Statement attached)

b) Defendant was abroad when the claim was supposedly sent (evidence of flights attached)

c) the claim itself - from what I can ascertain, not having actually seen the claim form - is meritless with no breach of a 'relevant contract or obligation' (per POFA 2012 schedule 4) and the conduct of the Claimant in issuing the PCN breaches the Equality Act 2010 such that the claim will not withstand defence by this Defendant, who is a disabled person.  See draft defence attached.

 

2. Order for original claim to be dismissed. 

3. Order for the claimant to pay the defendant £228for time in preparation (12 hours as a litigant in person at a rate of £19 per hour).

1. I understand that the claimant obtained a default judgment against me as the Defendant on 17th March 2023.

I am aware that the claimant is UK Parking Control Ltd, and that the assumed claims in respect of unpaid Parking Charge Notices.

1. The claim form was not received at my current address and I thus was not aware of the Default judgment up until the arrival of the letter of judgment from the County Court Business Centre on the 22/03/23

2. The missing claim has still not turned up to date, thus it remains unserved.

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 discovered a CCJ was lodged against my name on the 22/03/23 tarnishing my impeccable credit history. 

4. In addition of not receiving the claim form, I was abroad from 11/02/23 to 11/03/23, so would not have been able to respond even if it did get served correctly.

5. I acted promptly by immediately  contacting the CCBC on 23/03/23 raising my concern in relation to the Default judgment only to be told by the court administrator that they do not know why I did not receive the claim form as it was sent

6. I contacted CCBC again on Monday 27/03/2023 to obtain more information asking for the Particular Of Claim be emailed to me.

7. I also refer to CPR 13.2(the court must set aside a judgment entered under part 12 if judgment was wrongly entered). 

8. In addition I refer to CPR 13.3, which states:

 

13.3

(1) In any other case, the court may set aside) or vary a judgment entered under Part 12 if –

 

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

​

The fact that the I was abroad as well as thedefence in itself meets the "some other good reason" in CPR 13.3 to set aside the CCJ at the court's discretion in the interests of justice.

 

9. I submit the CCJ should be set aside under CPR 13.2(a) as the claim form was not received.

10. Should the judgment be set aside. I am confident I can robustly defend the original Parking Charge Notice.

11. I also enclose a copy of my defence. This shows that the Defendant has very good chances of successfully defending this claim, should the court not in fact strike this claim out. 

12. I am a disabled blue badge holder as well as wheelchair user. From what I can recall, this ticket was issue when I parked my vehicle outside my house and went into it to open the garage so I could park inside it. 

13. As a disabled person, it took me longer than a normal abled person would

14. I am prepared to swear on oath that the claim was not served and that is still the position to date. 

15. I have also attached a Witness Statement of my brother MR Mohammed Khan, who will swear on oath that he did not receive any claim form while I was away. 

16. 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 of trust without an honest in its truth. 

 

Coupon-mad

Because she is relying on the Judges discretion she MUST attach a draft defence OR the WS itself must mention the basis of her defence in some detail, in order to persuade the Judge.  I think attaching a signed Draft Defence is best.

She's relying in CPR 13.3 (WHICH IS NOT MANDATORY ON THE COURT) so she needs everything included in this WS to tip the balance.

This is all about appealing compellingly to one person's discretion, not about copying a template from other CCJ cases because most are not like this one. Her case is different.

In her case the defence must be attached or set out in the WS.  Everything NOW.  She won't get another chance to put in a defence later because in my view (unusually, because the claim went to the right address) this CCJ set aside decision hinges on the fact she was abroad and also on the defence.

It's a one-chance effort and her CCJ set aside argument does hinge on having very good prospects of defending the claim.  This is a vital part of her case if she's decided to fight it.

The weakest part is her saying the claim didn't turn up.  That alone isn't anything like enough because as I said, the law deems a letter IS DELIVERED unless proved otherwise.  The law is on their side not hers so that's the weakest part of the case.

GO TO TOWN ON EVIDENCE TO SUPPORT B & C.

Coupon-mad

The WS looks much better except the paragraph numbering needs sorting out.

You haven't shown us your WS but that will be short.  Obviously with the usual court/case/parties headings at the top and the statement of truth at the end, as seen in all WS examples.

You haven't shown us the Draft Defence yet.

With your further reading of UKPC claim threads, we hope you've found the Defence by @Johny86 that everyone is adapting for DCBLegal/UKPC cases?   That's the one, just changing paras 3 and 4 as his ones are not relevant to this case.

The Draft order should say for paragraph one:

IT IS ORDERED THAT

1. The judgment for claimant dated 17th March 2023, be set aside pursuant to CPR 13.3, the court having accepted the evidence from the Defendant and her witness that:

(a) the claim form was not received at the defendant’s address, and

(b) the Defendant was in any event abroad when the claim was said to have been posted, and for weeks afterwards which would have prevented her being able to defend a claim even if it had arrived, and

(c) there are compelling reasons why the Defendant should be allowed to defend this claim, including but not limited to a coherent argument of disability discrimination (per the Equality Act 2010) and further arguments about a lack of fair grace period, lack of an overarching 'legitimate interest' justification to support the charge and an argument based upon primacy of contract, given the Defendant is a disabled resident at the location.

Johnersh

With these as the particulars 
THE PCN(S) WAS ISSUED ON PRIVATE LAND OWNED OR MANAGED BY C.THE VEHICLE WAS PARKED IN BREACH OF THE TERMSON CS SIGNS (THE
CONTRACT),
there is an argument that the particulars are defective insofar as it does not allege what the breaches are. Gordon Exall cites Marshall v London Passenger Transport Board [1926] only this week (see para 90).

It follows that here there is a failure ‘to explain the duty which it is alleged the defendant failed to perform’ (eg a payment or overstay issue). It is defective and does not actively put a case in breach of contract at all.

perhaps a thin argument, but it’s a thread. If nothing else C may be asked to file better particulars if the claim remains in play.

B789

Johnersh said:

With these as the particulars 
THE PCN(S) WAS ISSUED ON PRIVATE LAND OWNED OR MANAGED BY C.THE VEHICLE WAS PARKED IN BREACH OF THE TERMSON CS SIGNS (THE
CONTRACT),
there is an argument that the particulars are defective insofar as it does not allege what the breaches are. Gordon Exall cites Marshall v London Passenger Transport Board [1926] only this week (see para 90).

It follows that here there is a failure ‘to explain the duty which it is alleged the defendant failed to perform’ (eg a payment or overstay issue). It is defective and does not actively put a case in breach of contract at all.

perhaps a thin argument, but it’s a thread. If nothing else C may be asked to file better particulars if the claim remains in play.

Which is why the @Johny86 defence is advised as it includes the extra paragraphs that cover the above mentioned failing in the PoC.

I have taken the liberty of making available a sample defence that includes all the extra paragraphs as a pdf which shows how the final defence should look:

https://www.dropbox.com/s/66hosld75llha3j/2023_defence.pdf?dl=0