Application set aside hearing for CCJ parking fine DCB legal Highview Parking

thedateisaugust

I need some help and advice please

The CCJ was served at a wrong address. I now have an application to Set Aside Hearing which will take place next month.

The court have stated that I need to send a draft defence by next week, otherwise this application will be automatically struck out.  Can someone please advise:
What do I need to include in this draft defence?
E.g., 

1. CCJ was sent to wrong address. Is the defence where I argue that it was not properly served, or should the defence be purely looking at:
2. Arguments over the validity of the PCN
   
   

The below defense was taken from another post, and at no point does it discuss point 1. above.
Is this defense appropriate for my case? 




IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

CIVIL ENFORCEMENT LTD (Claimant)

-and-

XXXXXXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

Preliminary

1. The particulars of claim lack specificity. The Defendant is prejudiced and is unable to prepare a full and complete defence. The Defendant reserves the right to seek from the Court permission to serve an amended defence should the Claimant add to or expand his particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the particulars.

2. The particulars of claim fail to refer to the material terms of any contract and neither complies with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

Background

3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings.

4. It is neither admitted nor denied that on [date] the Defendant's vehicle was parked at [location]. Due to the length of time passed since the alleged incident the Defendant is unable to accurately recall the date in question and has not seen evidence proving the vehicle was parked in the respective location.

Failure to follow Protections of Freedoms Act 2012 Schedule 4

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

a. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").

b. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

(1) There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and:

(2) That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

(3) It is not admitted that the Claimant has complied with the relevant statutory requirements.

c. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances where a criminal offence has been committed. Those provisions do not apply to this matter.

Alternative Defence - Failure to set out clearly parking terms

6. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

7. It is denied that the Claimant has any entitlement to the sums sought.

8. Schedule 4 POFA Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £150, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

9. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true.

Coupon-mad

Did you already put in a Witness Statement and evidence about and proving your address, and a copy of the Code of Practice page with the clause that says AOS members must check details before litigation?

If not, you need to do BOTH.

See the documents used in the threads by:

@parkingpains1

@Brokenchief

@Jack5656

Which PPC?

And which solicitor?

thedateisaugust

Coupon-mad said:

Did you already put in a Witness Statement and evidence about and proving your address, and a copy of the Code of Practice page with the clause that says AOS members must check details before litigation?

If not, you need to do BOTH.

See the documents used in the threads by:

@parkingpains1

@Brokenchief

@Jack5656

Which PPC?

And which solicitor?

Thank you I am reading through each of them. 


PPC was Highview parking

Solicitor was DCBL

Can I use the argument that they have over charged me? The PCN was from 2018. It states:

E CONTRACT ENTITLES C TO      DAMAGES.                                     AND THE CLAIMANT CLAIMS                      1. £155 BEING THE TOTAL OF THE PCN(S) AND    DAMAGES. 2. INTEREST AT A RATE OF 8% PER     ANNUM PURSUANT TO S.69 OF THE COUNTY COURTS  ACT 1984 FROM THE DATE HEREOF AT A DAILY RATEOF £0.02 UNTIL JUDGMENT OR SOONER PAYMENT. 3.COSTS AND COURT FEES  

thedateisaugust

My witness statement is almost identical to Brokenchief's. 
I am sending an amended version which references proof of changes of address.

The court letter also states the witness statment should contain.  "Any allegation that, at the time when this claim was issued, the Claimant had a reason to believe that the address to which the Claim Form was sent was one at which the Defendant no longer resided or carried on business, and if so the reasons why."

I do not have an argument for this. MY DVLA was not updated, and soft checks would have returned my old address. However, I i have no had a car since long before moving from old address, and had received zero correspondence from the claimant at my point at my old address. 

Coupon-mad

I am sending an amended version which references proof of changes of address.

And a copy of the BPA CoP section that I said.

When you look at the WS by the 3 people whose profiles I linked, they do already explain why silence from the recipient of the letters IS 'reason to believe' the person might not live there any more and that it is a requirement of the BPA CoP to do a check (a soft trace).  So you have a solid argument there of wrongdoing by Highview.

Throw away that old Civil Enforcement draft defence.

The defence will be like the Highview one by @Mrscompliant (obviously her paragraphs that she shows as her defence are PART of the forum's Template Defence, and altogether it will be 30-odd paragraphs).

Were you driving? Do you know?  Did you receive the PCN?

thedateisaugust

Thanks so much. 

I was driving. I received the PCN in 2018 but did not respond.

 An additional argument i might include is that it was a B&Q carpark, hours after the shop had closed. Does that count for anything? It is arguably trespassing (according to another forum):

24.2 Further and alternatively, there was no contract entered into at all in that the signage at the B&Q car park explicitly states that parking is for customers only. The Defendant will say that the driver parked the vehicle with the specific intention of attending the cinema. Therefore, the driver was never a customer of B&Q and as such he was in fact a trespasser. Accordingly, no contract existed.

24.3.     Further and alternatively the B&Q store is open from 10:00am to 4:00pm on the day of the alleged parking contravention. The vehicle was parked after the store had closed and as such, it was impossible for the driver to be a customer of the store. Any parking contravention is therefore a trespass and not a breach of contract as alleged by the Claimant.

thedateisaugust

Is this the clause you are referring to: 
Clause 23.1c - Before serving a Letter Before Claim and prior to the 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.

Coupon-mad

Yes, that is it.

I really don't think this will win you any favours with a Judge and personally, I would never suggest you admit to using a car park to go off site. nor that you know what "the signage at the B&Q car park explicitly states".

The Defendant will say that the driver parked the vehicle with the specific intention of attending the cinema. Therefore, the driver was never a customer of B&Q and as such he was in fact a trespasser. Accordingly, no contract existed.

What that describes is abuse if a car park facility and I would never do that.  A bit surprised any driver would.

I say bin it and go more along the lines that the headline offer on the signs is x hours free (am I right?) and anything else is in minuscule text.

Is the other forum CAG?

thedateisaugust

The other site is Legalbeagles. The post is actually the exact car park I was in, and for the same reason (they went to the cinema and parked at night). I will remove this section. 

@Mrscompliant  defence is largely based around the fact that they weren't the driver. Can I still argue that? Given mine was back in 2018, and it's possible someone with comprehensive insurance could have driven it

B789

thedateisaugust said:
I do not have an argument for this. MY DVLA was not updated, and soft checks would have returned my old address. However, I i have no had a car since long before moving from old address, and had received zero correspondence from the claimant at my point at my old address. 

Why do you think that just because your V5C address was not updated that you have no other fingerprint that you lived elsewhere? Were you living off the grid? How did you find out about the CCJ? Did you have a bank account or did you pay any utility bills, TV licence, did you ever vote?

Coupon-mad

If you were driving then say so in paragraph 2 of the defence and do not have the bit about non-compliance with the POFA.

Easy enough.  Copy the defence by @Johny86 which works for all DCBLegal claims.  Just edit paras 2 & 3 and remove para 4 about the POFA.