CCJ for PCN I knew nothing about

hallie28

I am just writing up my defence. 

The judge yesterday said I should address my argument re: throwing the whole claim out (due to it being served at wrong address) in this defence. Shall I add this in the 'facts known to defendant' section, or create a new section to add these bits (or not add it at all?)

hallie28

Here is my para 2 and 3 (a lot longer than 2 paragraphs, as I've added the bits re: CPR 6.9). Also, I am still unsure if I am the driver in relation to the PCN, as I've only visited the place once very briefly. Should I make more a point of the fact we can't confirm driver, or shall I just assume I was (even though multiple people drove the car). 

The defendant was not made aware of the Parking Charge Notice until they applied for a mortgage on 15th May 2023 and found that they had a CCJ. When immediately contacting the courts, they were informed that a Default Judgement had been entered on 14th November 2022. The court proceeding had been sent to an old address of the defendant [DELETED BY FORUM TEAM], hence the inability for the defendant to defend the claim. The defendant was successful in having the CCJ set-aside on 19th September 2023.

The Defendant was 6 months pregnant at the timepoint on the PCN. They did not receive a PCN on the windscreen of their car to notify them of the alleged charge. They have only ever visited the address in question very briefly on one occasion, when they needed to use public facilities due to antenatal sickness whilst driving. Pregnancy is a protected characteristic, and the defendant acted in the most appropriate manner by pulling up in the safest location. For UK Car Park Management to penalise a pregnant woman from using their facilities for a few minutes is discriminatory and morally abhorrent.

The vehicle that the claim refers to was sold 23rd August 2021, thus there is limited supporting documentation. The failure to send communication to the defendant regarding the PCN has meant that they have been unable to collect adequate evidence for the purpose of collating a defence, which has disadvantaged them in this matter.

CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence." It is clear that the Claimant, having obtained a previous address from the DVLA and having received no response, did not perform the requisite "reasonable diligence" required to find the defendants correct address to serve the claim form. Had reasonable diligence been taken, the correct personal details are found in multiple public sources, such as the electoral register, DVLA, HMRC.

The address on the claim is XX The defendant moved from this address to their  current address at XX in October 2017. The finance settlement agreement for the vehicle related to the PCN is attached (Exhibit 1) and shows their correct address. Their driving licence is also attached (Exhibit 2), issued on 29th April 2018, showing the correct address. Attached is a claim form (Exhibit 3) they received from a different parking company, relating to a PCN from 2017 (pre-dating the claimants PCN). This demonstrates that the current address could be located by parking companies and their associated solicitors had they shown due diligence and complied with CPR 6.9 (3).

The Claimant did not have any response from communications sent to XX but then filed a claim there anyway. In their witness statement regarding the CCJ set-aside, they report that they did not file the claim to the ‘possible alternative address’ as they did not receive a response, thus “that address could not be confirmed for GDPR purposes”. There is no rationale for why a non-response at XX did not meet those same criteria. Had the claimant completed the Experian search as claimed and found an alternative address, this would be the usual or last known residence of the Defendant for the purposes of CPR 6.9, as this search would have been completed after the DVLA request.

As the claim form was not served at the defendants current address, this is a breach of CPR 13.2 (a). Due to this, the judgment was wrongly entered as the defendant was unable to submit an acknowledgement of service in the absence of notification of the case (CPR 13.3).

CPR 13.2 is very clear that the Court must set aside a judgment entered under part 12 if judgment was wrongly entered, as in this case. Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside. Given that more than 4 months have 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. If the Claimant believes there is a cause of action, then the correct procedure would be to file a claim afresh and to the correct address after providing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct name and address for service for this Defendant (address).

B789

hallie28 said:

The Claimant did not have any response from communications sent to XX but then filed a claim there anyway. In their witness statement regarding the CCJ set-aside, they report that they did not file the claim to the ‘possible alternative address’ as they did not receive a response, thus “that address could not be confirmed for GDPR purposes”. There is no rationale for why a non-response at XX did not meet those same criteria. Had the claimant completed the Experian search as claimed and found an alternative address, this would be the usual or last known residence of the Defendant for the purposes of CPR 6.9, as this search would have been completed after the DVLA request.

Without trawling back through the thread, I seem to recall that the claimant offered no evidence to show that they actually did a search. I think you mentioned that in your SAR, there was no evidence of the second LoC they say they sent to your correct address.

If this is correct then you must highlight this failure to provide strict proof of their feeble excuse. It must be highlighted to the court that you did not respond to their second LoC they allegedly sent to your correct address because they never sent one and have provided no proof that they did. Unreasonable behaviour if I ever saw it.

Coupon-mad

I think she was wrong to lazily kick that can down the road to the second hearing.

But do also add in the strike out appeal decision by HHJ Murch where the woeful POC were enough to see the claim dismissed.  As seen in several threads this week including the one by @andyl3004

hallie28

Thanks for all the advice, I've made the recommended changes. The Claimant added the letter they sent to my real address as the evidence in their skeleton argument, so I'm not going to emphasise this point. 

I've added the pictures of court letters into the main body of the text (as seen Andy l3004s defence). Is this correct. Do I also do this with my other exhibits (e.g. documentation that proves my address) or do I add these as attachments?

I haven't yet received a letter from the court, but in the hearing the judge said my deadline to submit was 2nd October. Shall I wait for the letter to come through, or just send it anyway?

Coupon-mad

They'd look better as a single merged PDF attachment (an Exhibit) with the HHJ Murch Appeal judgment first, as it is PERSUASIVE.

YOU MUST FILE AND SERVE THIS BEFORE THE DEADLINE EXPIRES.  Copy to the solicitors.  Why are you proving your address?  Your case has moved on from that and is all about disputing the PCN now, surely?

hallie28

Ok fab I'll add them as PDF's instead, thank you. 

The judge said I need to argue my eligibility for the whole claim being dead in this defence. So I am still referring to CPR.12. Also, I thought it was relevant to argue that they haven't served the claim to my address, to add weight to the fact that the charges are inflated. 

This is what I've put as my defence (beginning and conclusion have adjustments to original template)

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question.

3. The defendant was not made aware of the Parking Charge Notice until they applied for a mortgage on 15th May 2023 and found that they had a CCJ. When immediately contacting the courts, they were informed that a Default Judgement had been entered on 14th November 2022. The court proceeding had been sent to an old address of the defendant (XX), hence the inability for the defendant to defend the claim. The defendant was successful in having the CCJ set-aside on 19th September 2023.

4. The Defendant was 6 months pregnant at the timepoint on the PCN. They did not receive a PCN on the windscreen of their car to notify them of the alleged charge. They have only ever visited the address in question very briefly on one occasion, when they needed to use public facilities due to antenatal sickness whilst driving. It is unclear if this is the occasion when the PCN was given, as there were multiple drivers of the vehicle. Nonetheless, pregnancy is a protected characteristic, and the defendant acted in the most appropriate manner by pulling up in the safest location. For UK Car Park Management to penalise a pregnant woman from using their facilities for a few minutes is discriminatory and morally abhorrent.

5. The vehicle that the claim refers to was sold 23rd August 2021, thus there is limited supporting documentation. The failure to send communication to the defendant regarding the PCN has meant that they have been unable to collect adequate evidence for the purpose of collating a defence, which has disadvantaged them in this matter.

6. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence." It is clear that the Claimant, having obtained a previous address from the DVLA and having received no response, did not perform the requisite "reasonable diligence" required to find the defendants correct address to serve the claim form. Had reasonable diligence been taken, the correct personal details are found in multiple public sources, such as the electoral register, DVLA, HMRC.

7. The address on the claim is XX. The defendant moved from this address to their current address at XXX in October 2017. The finance settlement agreement for the vehicle related to the PCN is attached (Exhibit 1) and shows their correct address. Their driving licence is also attached (Exhibit 2), issued on 29th April 2018, showing the correct address. Attached is a claim form (Exhibit 3) they received from a different parking company, relating to a PCN from 2017 (pre-dating the claimants PCN). This demonstrates that the current address could be located by parking companies and their associated solicitors had they shown due diligence and complied with CPR 6.9 (3).

8. The Claimant did not have any response from communications sent to xx but then filed a claim there anyway. In their witness statement regarding the CCJ set-aside, they report that they did not file the claim to the ‘possible alternative address’ as they did not receive a response, thus “that address could not be confirmed for GDPR purposes”. There is no rationale for why a non-response at 106 Ringwood Drive did not meet those same criteria. Had the claimant completed the Experian search as claimed and found an alternative address, this would be the usual or last known residence of the Defendant for the purposes of CPR 6.9, as this search would have been completed after the DVLA request.

9. As the claim form was not served at the defendants current address, this is a breach of CPR 13.2 (a). Due to this, the judgment was wrongly entered as the defendant was unable to submit an acknowledgement of service in the absence of notification of the case (CPR 13.3).

10. The only opportunity the claimant has had to respond to the claim, is through this defence, at which point the claim sum is inflated and disproportionate to the alleged parking violation.  Thus the Defendant was denied any opportunity to appeal because the current parking industry line is "it's too late - pay up and pay more".  This despite the fact that the Government's new statutory Code (linked later in this defence) requires a fresh Notice to be served at the original rate, and appeal to be made available, in cases where the first Notice was not received.

11. 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. Given that more than 4 months have 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. If the Claimant believes there is a cause of action, then the correct procedure would be to file a claim afresh and to the correct address after providing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct name and address for service for this Defendant (address).

12. In addition to these facts, a recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the PoC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The Defendant asserts that this Claim is based upon an agreement by conduct. The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the PoC. Please see the transcript in Exhibit 4.  

13. Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. Please see Exhibit 5.

14. Furthermore, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning .Please see Exhibit 6.

15. Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. Please see Exhibit 7.

16. The Defendant believes the Claim should be struck out at Allocation stage and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.

17. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

18. The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator:
 the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

Conclusion

38. Under CPR 13.2, the Court must set aside a judgment entered under part 12 if judgment was wrongly entered. Given that the claim/judgement was sent to the wrong address, and the claimant did not get the opportunity to acknowledge service or defend the claim prior to this stage, and that more than 4 months have 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.

39. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant. 

40. With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

40. In the matter of costs, the Defendant asks:

(a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5. 

(c) £275 for the costs of applying to set aside the associated CCJ

41.  Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

 

Statement of Truth

I believe that the facts stated in this defence 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.

Coupon-mad

That's not the current template defence.  Swap it for the current one as you are missing all the stuff about the DLUHC's current position and the exaggerated claim/market failure point.

Remove this sentence from para 38 as you already have your set aside agreed:

 Under CPR 13.2, the Court must set aside a judgment entered under part 12 if judgment was wrongly entered.

hallie28

Fab thanks - I've added these changes now. Love the defence template! 

Do I risk adding a paragraph about the letter they sent to my real address, or just leave it for now and submit later in the process if they make reference to it at a later stage (e.g. in my skeleton argument). I did draft a paragraph: 

The claimant states that their solicitors completed a soft-trace and found the defendants most recent address of XXA and that they wrote there. The letter was not received by the defendant. The evidence submitted shows a letter dated 9th June 2022 sent to XX. This is entitled ‘Letter Before Claim’. This letter does not adhere to the ‘Pre Actional Protocol’. The letter states “we act on behalf of the above Client and are instructed to commence legal proceeding against you to recover unpaid parking charge notice(s) as detailed in the attached schedule (full details of them having been sent to you by our Client already)”. A Subject Access Request to UK Car Park Management Limited revealed that they did not send any documentation to XX as suggested in the solicitors letter. Thus the defendant did not receive the full details of the Parking Charge Notice and the alleged ‘letter before claim’ omits the following (in breach of Pre-Action Protocol 3.1): ‘where the debt arises from a written agreement, the date of the agreement, the parties to it and the fact that a copy of the written agreement can be requested from the creditor’ and ‘enclose a copy of the Information sheet and the Reply Form at Annex 1 to the Protocol’. 

B789

The debt arises from an agreement by conduct. It is not a written agreement. If that's what you mean?