CCJ set aside won, now defending against AutoSec/DCB legal for parking in resident's allocated bay

cleena7

I have written a longer post but this has been blocked by the forum for being a 'suspicious post'. Whilst I wait for the forum to respond/approve this post may I ask for urgent advice on the following:

I have applied to set aside a CCJ from 01/02/2023 as I did not receive it (but did receive and respond to the Claim Form in September 2021 before I moved house). I received no further instructions from the court and the Directions Questionnaire (October 2022) and General Sanctions Order (December 2022) were both sent to an old address. I only became aware of the default CCJ on 7th February 2023.

I sent the N244 application on 13/02/2023 and then reapplied to stay the writ to my local court on 20/03/2023. My court hearing is 25/05/2023 and I have until 08/05/2023 to file my witness statement and supporting evidence.

For the set aside -

I have read the newbies thread and threads by msx999 paulr23 jack5656 and Henrik.

However - what arguments can I make if the Claim Form was received but all further correspondence not received (plus a significant delay in any further court documents being sent)? The Claimant has argued they served to my last known address and it is the court's responsibility to send subsequent documents. Who is responsible for the delay between September 2021 and October 2022? Can/shall I include text messages between the owner of my previous address showing I had no knowledge of proceedings between September 2021 and February 2023?

I have prepared a Witness Statement with evidence, draft order and a draft defence, which I will submit prior to the deadline. Many thanks

cleena7

Timeline of events:

The Claim relates to 3 parking charge notices (December 2016 and January 2017) issued by AutoSec in a resident's car park where I had an allocated car parking space since 2014. I have not received any documents from the Claimant but the signage only said "Private Land Permit Holder's only" - the Claimant will try to claim I had not displayed a permit. I have my Tenancy Agreement (does not mention parking) and the lease showing exclusive use the parking space and no requirement to display a permit, plus copies of adverts for the apartment with parking included.

I wrote to Autosec in March 2017 informing them I was a resident and had authority to park, plus had a parking permit - with no response until letters from DCB LEGAL 4 years later. The Particulars of Claim were served to a correct address in September 2021 and I responded to this Claim in September 2021 and received confirmation from CCBC of that defence. This said the Claimant had 28 days to respond and the court would instruct me how to proceed. If they did not respond, the claim would be stayed (which is what I thought happened). Unfortunately, I did not know about this forum at the time therefore this response was 'scribbled' on the back of the claim form and is likely why the Claimant is still pursuing me.

I moved house in September 2021 (but put my new address on the response to Claim) and knew nothing of the CCJ until February 2023. On the moneyclaim website it says a Directions Questionnaire was sent in OCTOBER 2022 (more than a year since I responded to the Claim) and I had moved house again in August 2022 - I have in evidence a copy of the moneyclaim website (dates of DQ and General Sanctions order) and will enclose evidence of updating my address with the DVLA and electoral roll etc.

I acted prompty and applied within 7 days to set side in February 2023 (then reapplied to local court in March 2023 to stay the writ) - I could not attend a court date in April 2023 due to last minute work commitments and have been ordered to pay £180 costs to the Claimant, which I have done. I am now awaiting a rescheduled hearing this month.

For my defence -

I will argue the following points and have written a supplementary witness statement with attached evidence.

• Authority to park - aerial view of apartment block, tenancy agreement, title plan and photographs of car in allocated space in evidence
• Primacy of contract - ref Jopson v Homeguard, Saeed v Plustrade, Pace v Mr Noor, Link Parking v Ms Parkinson
• Lack of standing or Landowner authority (I have not seen any documents from the Claimant but assume they did not have authority to issue parking charges to residents parked properly)
• Lack of contract (copies of Claimant's signage and reference to BPA CoP)
• Unfair terms - reference to Consumer Rights Act 2015
• Particulars of Claim
• Lack of loss or damages - reference to POFA Schedule 4
• The Claim is an Unenforceable Penalty - reference to Beavis and Parking Eye v Somerfield
• Parkingeye v Beavis is distinguished - reference to Jopson v Homeguard and binding Court of Appeal authorities, lack of commercial justification
• Abuse of process - reference to District Judge Taylor Southampton Court, Consumer Rights Act 2015 and DLUHC CoP
• Statement of costs

Coupon-mad

I would attach ALL the evidence you have, and also attach your signed & dated defence (from 2021) because your set aside depends on the discretion of the Judge. A potentially good defence can swing it in your favour.

Your set aside is based on CPR 13.3 which you should quote at the start of your WS to focus the points taken.

You do need to set the scene of "very good reasons" why the CCJ should be set aside.

List them in your WS.  Show us your drafts WS.

And please show us what defence you put in.  You can't change it so what I mean is the one in 2021.

cleena7

The defence from 2021 is unfortunately lacklustre, I will transcribe and put on here. I was planning to re-draft but also list the arguments in a supplementary witness statement in support of the defence (and therefore in support of my application to set aside CCJ/WS). Shall I attach all evidence to WS for application instead (rather than separately with defence points)? Will put WS in support of application on here - need to remove bits relating to Claim not being served and will add CPR 13.3. Thank you!

Le_Kirk

Check the status on MCOL and if your defence shows as accepted, you won't be able to submit a different one unless directed to by the judge at your set-aside hearing.

Coupon-mad

Hmmm...am just thinking your Draft Order could state a point to allow the Defendant to serve an amended defence within 14 days, given the fact it was first filed two years ago and since then, the Government has published a whole new fully independent Code of Practice which - whilst stalled by a Judicial Review about the money - is coming in, with other clauses unchanged, by the end of 2023 and has changed the landscape in support of consumers.

If you don't ask, you don't get.

cleena7

What about CPR 12.1 In these Rules, ‘default judgment’ means judgment without trial where a defendant—

(a) has failed to file an acknowledgment of service; or

(b) has failed to file a defence or any document intended to be a defence.

I filed the 'defence' in September 2021 and then was unable to return the Directions Questionnaire as it was sent to an incorrect address. The rules for part 12 / default judgement (17 months later) don't seem to be met.

Also, in part 15 could it suggest since I did not hear anything within 6 months of my defence the claim should be stayed?

15.11.—(1) Where—

(a)at least 6 months have expired since the end of the period for filing a defence specified in rule 15.4;

(b)no defendant has served or filed an admission or filed a defence or counterclaim; and

(c)no party has entered or applied for judgment under Part 12 (default judgment), or Part 24 (summary judgment); and

(d)no defendant has applied to strike out all or part of the claim form or particulars of claim,

the claim shall be stayed.

(2) Any party may apply under Part 23 for the stay to be lifted. The application must include an explanation for the delay in proceeding with or responding to the claim.

cleena7

@Le_Kirk MCOL says the following 

A claim was issued against you on 08/09/2021

Your defence was received on 27/09/2021

DQ sent to you on 26/10/2022

General sanctions order was made on 12/12/2022

DQ filed by claimant on 07/01/2023

Defence was struck out on 01/02/2023

A judgment was issued against you on 01/02/2023

Your claim was transferred to *** on 21/03/2023

cleena7

Response to Claim dated 24/09/2021: This is a historical parking charge notice issued by AutoSec whilst I lived in rented accommodation at *** (old address). I have not lived at that address since September 2017, but my flat came with allocated parking. I received multiple threatening letters at the time from a debt collection company "TNC collections" and subsequently wrote to AutoSec on 18 March 2017 to inform them the PCN had been issued incorrectly as I was a resident living at that address with an allocated parking spot in addition to a permit which had only recently been introduced. I did not receive a written response from AutoSec (address at the time was in Hull) nor did I receive any further letters from TNC collections requesting payment.
Almost 5 years later I have started receiving similar letters from DCB legal. I have recently relocated to a different city and this has been the first opportunity to respond to the claim. I wish to contest the full claim amount. 
I have limited recollection of any additional details surrounding this claim given the amount of time that has passed but I enclose the initial letter to AutoSec dated 18/03/17 which I have saved on my computer.

cleena7

IN THE COUNTY COURT AT ***

Claim No. ***
BETWEEN:
Auto Security Ltd T/A Autosec (Claimant)

– and –
*** (Defendant)

___________________________________

WITNESS STATEMENT OF ***
___________________________________

1.     I, *** of 3 ***, being the Defendant in this case will state as follows;

 

2.     I make this Witness Statement in support of the application for an order that the judgment in this case (Claim No. ***judgment dated 1st FEBRUARY 2023) be set aside and the writ of control be stayed. I have previously submitted a response to the Claim (24th SEPTEMBER 2021) but had no knowledge of a judgment against me as it was sent to the wrong address.

 

3.     In accordance with CPR 13.3, the court may set aside a judgement 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

4.     I will provide the court with evidence to demonstrate that the prospect of successfully defending this claim is real. The meaning of ‘default judgment’ according to CPR Part 12, is “judgment without trial where a Defendant a) has failed to file an acknowledgment of service; or b) has failed to file a defence or any document intended to be a defence”. In this case, I submitted a defence and stated my intentions to contest the full amount of the Claim.

 

5.     In considering whether to set aside or vary a ‘default judgment’, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly. A timeline of events according to my best of my recollection is set out below:

 

6.     The judgment relates to unpaid “parking charges” dated 17/12/2016, 31/12/2016 and 08/01/2017. As stated in my application, I contacted the Claimant directly by written letter on 18th MARCH 2017 with no response. I responded promptly to the Claim on 24th SEPTEMBER 2021 after it was issued on 8th SEPTEMBER 2021, stating my intention to contest the full amount of the Claim (EXHIBIT 1).

 

7.     On 27th SEPTEMBER 2021 I received confirmation of receipt of my defence from the CCBC (EXHIBIT 2). This stated the Claimant must inform the court if he/she wishes to proceed within 28 days and the court will then inform me what will happen. I received no further instructions and therefore believed the Claim had been stayed (EXHIBITS 2 and 3).

 

8.     I learned of the existence of this default judgment 17 months later, on 7th FEBRUARY 2023. Upon checking my banking application and Credit Score, this report confirmed the presence of a Court Judgment against me, detailed in paragraph 2.

 

9.     Upon discovering the existence of the default CCJ, I contacted NORTHAMPTON COUNTY COURT BUSINESS CENTRE to clarify the details of the Court Judgment and to confirm that I had no knowledge of any ongoing proceedings against me. I was advised to complete an N244 application.

 

10.  I discovered that the Court Judgement and prior correspondence had been sent to an old address (***), despite establishing my correct address of ***, in my response to the Claim dated 24th SEPTEMBER 2021 (EXHIBIT 1).

11.  My address changed again on 24th AUGUST 2022 and I applied to the DVLA on 12th AUGUST 2022 to update my new address to *** (EXHIBIT 4), as well as updating my bank accounts and the Electoral Roll.

 

12.  I have not received any correspondence or notice regarding this matter until I became aware as per paragraph 8 above. Neither the Directions Questionnaire of 26th OCTOBER 2022, sent over 12 months after my response to Claim, nor General sanctions order of 12th DECEMBER 2022 (EXHIBIT 5) were delivered or received at my correct address detailed in paragraph 11, nor my last known address, detailed in paragraph 10. I have therefore had no opportunity to respond further to the Claim or defend it.

 

13.  I acted promptly in applying to set aside this judgment on 13th FEBRUARY 2023 and sent this via email to the CCBC. I subsequently contacted CCBC to chase up this application who informed me there was now a writ of control and hence I applied on 20th MARCH 2023 to my local court to stay the writ and set the judgment aside.  I received no contact from the Claimant (or their legal representatives) to my updated address (paragraph 11) apart from a Notice after entry delivered on 21st MARCH 2023.

 

14.  As stated in my application and in my response to the Claim (EXHIBIT 1), my intention has always been to defend this Claim in full. I deny that the Claimant is entitled to relief in the sum claimed, or at all. Since I received no knowledge of the Court Judgment, any prior Court hearing, nor directions from the court since the Claim dated 08th SEPTEMBER 2021, this is the first opportunity I have had to respond.

 

15.  I believe it unreasonable for the Claimant to proceed with this claim when the “parking charge” was in DECEMBER 2016. I have to date received no bundle of documents from the Claimant, to enable me to properly defend the Claim, apart from the Supplementary Witness Statement received in APRIL 2023 and the limited Particulars of Claim in SEPTEMBER 2021.

 

16.  The Parking (Code of Practice) Act 2019, Private Parking Code of Practice published on 7 February 2022 by the Secretary of State for the Department for Levelling Up, Housing and Communities (DLUHC) (point 10) 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.”

 

17.  With the passage of time and unanswered correspondence (more than 12 months after the Claim), the Claimant had reason to assume that I may no longer reside at my last known address. I do not believe reasonable steps were taken to ascertain my current address or consider whether there was an alternative method by which I could be contacted. For example, a mobile telephone number was provided in my response to claim (EXHIBIT 1). It follows that there was neither good practice on the part of the Claimant nor entitlement to default judgment.

 

18.  I believe the Claimant has not adhered to CPR 6.9 (3) where they failed to show due diligence in relying upon an address where I no longer reside. Under CPR 13.2 the court must set aside a judgment entered under part 12 if judgment was wrongly entered. Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside.

 

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

 

20.  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 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.”

 

21.  The impact of the Court Judgment against me is significant, since I recently moved house and obtained a fixed-term mortgage in SEPTEMBER 2022, which will expire before the judgment is removed from my credit file. I purchased this property as tenants in common with my partner, but I am the primary earner in the household. If the Court Judgment remains on my credit score, this could result in a future mortgage application being denied and we would have to sell our home. Due to the recent demand for housing and significant rise in UK house prices in 2021/22, it is likely we would sell at a significant loss of tens of thousands of pounds.

 

22.  I further enclose a Supplementary Witness Statement (EXHIBIT 6) and supporting documents (EXHIBITS 7 – 20) that would have been filed in support of my Defence, which show this to be a meritless Claim and the prospect of successfully defending the Claim is real.

 

23.  I believe the default judgment was entered incorrectly and I should be permitted to submit an amended defence, given the fact I first responded to the Claim two years ago and since then, the Government has published a whole new fully independent Code of Practice which - whilst stalled by a Judicial Review about the money - is coming in, with other clauses unchanged, by the end of 2023 and has changed the landscape in support of consumers. Herein attached is a draft amended defence (EXHIBIT 21).

 

24.  For the reasons stated above, I respectfully request that the court set aside the default judgment against me and stay the writ of control. I request that this Claim be dismissed in its entirety without hearing and invite the court to strike out the case using its case management powers pursuant to CPR 3.4. If the original Claim is not struck out, I reserve the right to submit an amended defence within 14 days. 

 

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: ________________________________

cleena7

____________________

DRAFT ORDER
____________________

UPON considering the Defendant's application dated 20th MARCH 2023

AND UPON reading the evidence in support of the application

AND UPON the court taking note of the prospect of the Defendant successfully defending the Claim

IT IS ORDERED:

1. The default judgment against the Defendant dated 1st FEBRUARY 2023 be set aside and the writ of control be stayed

2. The Claimant do pay the Defendant's costs of the application and reimburse previous costs to the sum of £194

3. The original Claim be dismissed without hearing

4. If the Claim is not struck out, the Claimant is to file and serve full particulars and photos of the signage and alleged contravention, before then allowing the Defendant to respond

5. The Defendant reserves the right to file an amended Defence by 4pm within 14 days after the date on which the judgment is set aside