Set-Aside Hearing Tomorrow....need help!

Chloe_Meow

Hello all. I have a set-aside hearing tomorrow and I need help. I've been trying to create an acount and post from last week but weekend arrived:

Hi. I'm challenging a default judgement that I found out about after receiving a threatening Debt collection letter back in October 2022. I had no idea there was a CCJ against me. I confirmed by ringing up CCBC and it was true. I followed the advice on this forum and applied for a put aside. I've been given a hearing which is set for this week. The Claimant's solicitors have pre-empted the hearing and submitted a draft order stating that they accept the judgement be set aside because the Claimant acknowledges the LBC was served at the wrong address. They also want the case to be sent to the small claims track and for me to submit my defence within 14 days after this initial hearing. So, I need to prepare my defnce but I have a 101 questions and I need help going forward.

But before that, I want to acknowledge and thank the unsung heroes on this forum who are doing a stupendous job with their time and effort by helping us all. The big-hitters know who they are and I thank you for all your help, your time and all your effort. A lot of us would not have a clue without your help and support.

I'm paranoid that the claimants and their solicitors frequently troll this forum for a heads-up so I'm gonna keep details anonymised as much as possible so as not to give anything away for my defence. Once it's over, I'll update with all the identifiable info (Claimant and solicitors,obviously). Claimant is based in Sheffield and the Solicitors are in Manchester. These 2 are very prominent in this forum. Puzzle time: Solicitors - (ECD Legal- subtract one letter of the alphabet for the acronym). Claimant - 'Barclays Bank' and 'Hyde Park' (combine second word of each)

My hearing for the set-aside is this coming week. The Claimant's Solicitor has already emailed the court and copied me in. They state in the letter:

"Please find enclosed a Draft Order, were we hereby consent to the Judgment entered on XX/XX/2021 being Set Aside, to be sealed at the Hearing. Upon the Claimant accepting that, although the Claim was correctly served at the Defendant’s last known address pursuant to CPR 6.9, the Defendant did not receive the Claim Form."

Why "...sealed at the hearing"?, does this mean I cannot rely on any particulars concerning the NTK's, Debt collection letters or the rogue, deviant behaviour of the Claimant/PPC in my Defence? 

Here is the Draft Order:

i. Judgment dated XX/XX/2021 be Set Aside; 

ii. The Claim be allocated to the Small Claims Track; 

iii. The Defendant to file a Defence within 14 days from the date of Judgment being Set Aside; 

iv. The Claimant be at liberty to enter Judgment if the Defendant defaults from part iii. of the Order; 

v. No order as to costs; 

Firstly, my set-aside application slammed the Claimant for devious behaviour and for knowingly sending to the wrong address when all indentification data (DVLA etc) pointed to my current address. So, I feel the sudden acknowledgement by the claimant is an attempt to bury the matter and for their behaviour not to be addressed in the hearing. I don't think that's good enough or should I just be satisfied that they've consented for a set-aside?

The Small Claims Track. Is there anything in this point that will sting me later? Any chance I can convince the Judge in the set-aside to give a judgement there and then without proceeding to a defence trial?

File a defence within 14 days. Shouldn't this be no later than 14 days before the date of the defence hearing? Or, is this an attempt by the Claimant to apply pressure on me. I only received the response to my SAR a couple of days ago and it is a miserable response - I'll address this later. I didn't do this sooner because I didn't want to trigger the Claimant to take enforcement action until the Court had put a stop to it - which it did when I got the set-aside hearing date.

Number iv)...What does 'Claimant be at liberty to enter Judgment' mean? I have a feeling that the bedpans are relying on me having no defence and therefore citing unreasonable action or time-wasting or whatever. So, what do they have?....

Number v): Specifically, what does "No order as to costs" mean/imply?

The SAR. I only sent the SAR to the Claimant and not their Solicitor - Should I also send to the Solicitor since a lot of the debt collection letters were sent by them? I went according to the LegalBeagle template and padded it out. Excerpt:

Please supply the data about me that I am entitled to under data protection law  relating to myself. I request that you provide:

 ALL photos taken, including CCTV and ANPR systems

 ALL letters/emails/texts sent and received, to all the residential addresses held for the subject, all email addresses held for the subject and all records of contact to the subject via phone/text.

In addition to the ANPR images/photos, please provide the ANPR log/record (including all images taken) from the day of the alleged breach of contract . (VRN data can be partially redacted for non-subject vehicles.)

PDT machine record from the day of the alleged breach of contract, a record of payments made. (VRNs can be partially redacted for other than the subject). I insist on receiving the record of payments.

 Firmware version of the PDT machine at the time of the breach. And, change/release logs (including changed item entries) with dates for the previous firmware version, the current version at time of breach and the subsequent version. (Set of 3 change/release logs for: previous, current at time of breach, subsequent version)

 Similar to the above, request for firmware versions and change/release logs for the firmware of the ANPR system used to record the alleged breach. (Set of 3 change/release logs is requested)

 A full copy of the PCN, NTK and other notices, correspondence related to the subject

 A full and complete list of all PCNs outstanding against the subject and the VRN: XXXX XXX.

 Photos/images of ALL the signage declaring the terms of parking and the contract which was current at the time of the alleged breach

 An area plan layout for the locations of the signage that allegedly formed the contract with the subject, and the locations of the PDT machines and ANPR cameras which recorded the alleged breach.

 Dates and desciption of any changes to the signage, lighting, PDT machines or ANPR system since the time and date of the alleged breach. Since, these were all factors and aspects of the alleged contract with the subject.

 

 The Claimant (parking company) responded to the SAR with:

 1) Copy of NTK dated as sent at 8 days from alleged incident

 2) NTK reminder sent approximately 28 days after initial NTK letter

 3) Details of vehicle and keeper. Funny how it has my current address yet the LBC was sent elsewhere.

 4) 4 images: 2 of the license plate, 1 of the front of the vehicle and 1 of the rear of the vehicle, supposedly entry and exit; both images date and time-stamped.

 5) Reason for issue: ANPR failure to pay for parking.

 

 Nothing else was included of what I had requested.

 

Of note in the images, is the utter darkness, it's almost pitch black. It was an early January evening. There is no way of identifying the driver from the images. I certainly have no recollection of parking there and neither do I know if my car had been borrowed that particular day. I do allow my car to be borrowed as long as the person has fully-comp insurance. I am a hundred miles away from the car park right now so am limited with the research I can do. Google street view only shows images upto October 2020 and it looks like the parking company hadn't been instucted then. However, there are Google reviews for the site/retail outlets situated there and many are bashing the parking. Many have been caught out and have stated that the machines are hidden and there is no signage etc. The parking site employs ANPR cameras and there is supposedly free parking for 30 minutes but to qualify for this a ticket needs to be claimed from the machine.

Does anybody know how much footage would the claimant's ANPR system have or have archived and be available to the claimant? Can the Claimant bring up additional footage during my defence trial which has not been provided to my SAR?

I've also found that the parking site is a pass-through to residential and business accomodation seprated by security gates at the end of the parking site. If it wasn't me then could it be that another driver went to this residential secured area and didn't actually use the claimant's car-park, I wonder. How feasible of a defence is this?

Why is it the assumption that times of ANPR systems are unquestionably and absolutely correct? Afterall, it's software. Claimant didn't provide any info on the signage and machines etc. as per my SAR. Would this be a reasonable argument to present to the judge to make a decision to not go to trial? Furthermore, the car park is a very small one and spaces are very hard to come by. Could it not be that the driver double-dipped or more and did not park at all and the ANPR data is incorrect? Why is it that the PPC/Claimant is trusted with this data when their behaviour can be interpreted as devious? - Especially, when they sent the LBC to an incorrect address and they had the correct address in their possesion as evidenced in the SAR reply.

Furthermore, for the set-aside hearing, the Solicitors have excused the attendance of the Claimant to save costs. What about me? After what I've been dragged through...they want sympathy and compassion?! Can I submit a Draft Order stating that due to the many possiblilities of me not being liable for any breach or entering any contract that the Court dismiss the claim? I need help here guys, please chip in. Even better if someone can knock me up a Draft Order. I'd like everything to end there and then at the set-aside hearing. All this has been very taxing on me as it has for everyone in my situation.

Coupon-mad

Your post is too long to read in a hurry but this is NOT OK because it means you won't get your £275 fee back!

Number v): Specifically, what does "No order as to costs" mean/imply?

You need to show that Bank Park and DCB Legal (you can safely name them, honestly!) DID NOT comply with the IPC Code of Practice which requires checks of addresses before litigation.

A DVLA address disclosed at the outset of a PCN is NOT provided as an 'address for service' of court papers.  It is NOT OK for AOS members to just use an old DVLA car address for a court claim, without any checks.  Especially if the recipient of the letters has been silent.

That silence in itself is 'reason to believe' the address may not be the place where the person resides.  That's why the CoP says a check must be made before litigation if more than12 months has passed after a PCN (was there over a year's gap?).

If so, print off a copy of the right page of the Code, and your proof of address, being on the voter's roll and/ or take some utility bills to prove you were not hiding and were 'there to be found'.

OBJECT TO THE DRAFT ORDER BECAUSE THEY ARE AT FAULT AND CAUSED THIS AND SHOULD PAY YOUR £275.

If they say you should have updated your V5C logbook they are right BUT - and this is important to say - parking firms are only allowed to ask the DVLA once.

So even if a V5C is updated a week late, ir a month late (or whenever...) a parking firm will not know - and that's why the CoP says they MUST TAKE STEPS to check the address with a CRA before litigation.

Have you updated your logbook address now?

Chloe_Meow

I'm hoping that I may have a case for Abuse of Process against the Claimant.

These are the PoC:
==============

Particulars of Claim: 1. THE DEFENDANT(D) IS INDEBTED TO THE CLAIMANT (C) FOR

A PARKING CHARGE(S) ISSUED TO VEHICLE XXXXXXX AT XXXXXXXXXXXXXXXXXX  2. THE PCN DETAILS ARE XX/XX/XXXX XXXXXX 3.THE PCN(S) WAS ISSUED

ON PRIVATE LAND OWNED OR MANAGED BY C. THE VEHICLE WAS PARKED IN

BREACH OF THE TERMS ON CS SIGNS (THE CONTRACT), THUS INCURRING THE

PCN(S).4. THE DRIVER AGREED TO PAYWITHIN 28 DAYS BUT DID NOT. D IS LIABLE AS

THE DRIVER OR KEEPER.DESPITE REQUESTS, THE PCN(S) IS OUTSTANDING. THE

CONTRACT ENTITLES C TO DAMAGES. AND THE CLAIMANT CLAIMS 1.

£160 BEING THE TOTAL OF THE PCN(S) AND DAMAGES. 2. INTERESTATA RATE OF

8% PER ANNUM PURSUANT TO S.69 OF THE COUNTY COURTS ACT 1984 FROM THE

DATE HEREOF ATA DAILY RATEOF £0.02 UNTIL JUDGMENT OR SOONER PAYMENT.

3.COSTS AND COURT

FEES

I sent the following email to the Claimants Solicitors yesterday:

Dear Sirs,

I refer to the Particulars of Claim for Claim Ref: XXXXXXXX, whereby the amount of £100 for the Parking

Charge Reference: XXXXXX has been compounded by so called 'Damages' of £60. Furthermore, in light of your

Client's admission to serving documents to an incorrect address and consenting to a set-aside, it is bewildering

how I received Debt Recovery letters for the staggering amount of £27X.XX. I am unsure that your claim is

legitimate. I require that you advise me as to what legal authority you have to add an amount of £60 to your

claim. You clearly already know that this is Abuse of Process and in a recent claim made by BWLegal in Luton

County Court, claim number F0DP77KP, the judge gave his reason for striking out the claim as follows:-

The claim contains a substantial charge additional to the Parking charge which it is alleged that the

Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedom

Act 2012 schedule 4, nor with reference to the judgement in Parking Eye v Beavis, which expressly

approved because it included costs of administration. Additionally, S71(2) of the Consumer Rights Act

2015 requires the court to consider the fairness of a contract term and the provision of additional

charges falls into example 6, 10 and 14 of the indicative list of unfair terms in schedule 2 of the act. It is

an Abuse of Process for the claimant to issue a knowingly inflated sum which they are not entitled to

recover.

As I will reference this judgment (and many others where claims have been struck out), in any claim you make

together with a copy of this letter, I ask you again on what LEGALAUTHORITY do you have to add £60 to

your claim ? Any reply from you will be shown in court and if your reply states "without prejudice", I reserve

the right to advise the court that you have replied not wanting the court to read it. I will also proceed to inform

the SRA and CSA bodies.

This is now a very serious situation for you and I now give you the option to immediately discontinue all of your

claim and you and your client bears their own costs. In turn, I will not claim costs against your client.

Please reply within 3 days from the date of this email with your intentions.

Yours faithfully

Haven't heard back yet. Have contacted the Phone line for the court to ask if I can get info about abuse of process to the judge before hearing. Reply was..."unlikely". So, I'm hopig to put it in Ushers hand before the hearing if I can.Otheriwse I'll just present it during the hearing. Will it be accepted by the court/judje?

Chloe_Meow

Can I/DoI/Should I challenge the Draft Order submitted by the Claimant for consenting a Set-Aside with my own Draft-Order declaring Abuse of Process such as:

Upon considering the Defendant’s application dated XX/XX/2022, it is hereby ordered as follows:-

i.         Judgment dated XX/XX/2021 be Set Aside;

ii.       This is a claim for the global sum of £160. It is a penalty, unenforceable in law and an attempt to go behind the decision of the Supreme Court in Beavis;

iii.      The Claim be struck out and declared to be wholly without merit and an abuse of process;

iv.     Claimant do pay the Defendant's costs plus the Defendant's costs for attending the hearing;

 

Can I hand this to the Judge in the Hearing and the Claim is struck-out????!

Coupon-mad

Please forget "abuse of process" because cases are no longer struck out for adding £60.  It's usually disallowed but whole claims are not struck out.

That is really old news.  Forget it.

DO NOT EVEN USE THAT PHRASE.

Just do what I said, to the letter.

It is too late for you to submit a draft Order.  Object to their one and be crystal clear as to why and have the IPC CoP ready (you haven't read what I coached you to say yet because you haven't answered if there was a 12 month gap?).

At the moment you will not get your £275 back because you haven't realised how to argue that the Claimant didn't take the mandatory steps they should have done, to check your address.

Most Judges would fall for that Draft Order and think it most helpful!  One clueless Judge in January accepted that, did the hearing in FIVE MINUTES FLAT, ordered NO COSTS and didn't even let the Defendant speak...

YOUR JOB IS TO SAY WHY IT'S NOT OK.

Most Judges seem to think that a PPC using a DVLA address is enough.  Did you know that it it isn't?

Chloe_Meow

Hi and thank you @Coupon_Mad. The Judgement was in August 2021. PCN issued Jan 2021. Area where PCN was issued was another part of the country where I resided for 5 months. My Current address is what is on ll the paaperwork it's never changed. Current address was with DVLA before PCN and still the sameaddress with DVLA. 

Chloe_Meow

OK...So Why it's not OK. Basically stop the Judge from doing nothing.

Chloe_Meow

But in all the Defense threads...Abuse of Process is the main defence? If it's old why is it still so prominent?  IS this becasue the Code of Practice has been withdrawn?

B789

@Chloe_Meow, you really need to have a read of the Newbies/FAQ thread near the top of this forum to better understand the process and what steps you need to take and what NOT to do.

Your SAR will only provide you with data about YOU. They are not going to give you ANYTHING that is not about YOU. Their site layout, any signs and all the stuff about PDT machine data and firmware updates in NOT YOUR data, is it? You are confusing Pre Action Protocol and SAR. You can request all the other data in your defence if the Claimant is relying on it in their Claim.

ANPR does what it says in the tin. The main bit being NP (Number Plate). It cannot be used to "identify" the driver. Even if they had a photo of you, how do they know that it is you? Do you think they have some sort of big database with the photo of every driver in the UK which they can then say "aha, it is YOU"? Of course they don't.

Your email to DCB Legal in response to their PoC in the Claim is definitely not recommended. The Claim has been issued and you will be defending the claim using the templates here. Basically, what you did there is write your Defence to them rather than following the correct procedure.

Before that, follow @Coupon-mad advice to the letter to get this set aside.

You really need to stop being paranoid. You will just end up making everything so much more difficult to deal with.

Chloe_Meow

BTW, I'm getting HwF

Coupon-mad

But in all the Defense threads...Abuse of Process is the main defence?

No it isn't.  I don't use that phrase.  You must be looking at old defences.

And why are you looking at the added £60 anyway, this hearing isn't about that?

As I said, with most Judges, they CAN'T HAVE the £60 which is disproportionate and (we hope) likely to be banned by Govt when the new Code is resuscitated this year.

BUT WHOLE CLAIMS ARE NOT STRUCK OUT.

The Judgement was in August 2021. PCN issued Jan 2021. Area where PCN was issued was another part of the country where I resided for 5 months. My Current address is what is on ll the paperwork it's never changed. Current address was with DVLA before PCN and still the same address with DVLA. 

Your hearing is about why the CCJ should be set aside. So, what is your reasoning for that?  I don't see any, if the address was correct and that court claim was properly served to you...

Why didn't you defend?