Excel parking fine - Help needed to review my CCJ set aside application documents

Coupon-mad

noubee said:

@Coupon-mad thanks so much for your help. I have now received a letter with a court date set for 24th October. This was after having previously received another letter informing me that my case had been transferred to another judge.
I am a little bit worried about appearing in court, so I would appreciate any help or advice. When I get in front of the judge, how will I defend my case?
Will I simply re-iterate what I outlined in my witness statement? Or are there specific questions that the judge will ask which I need to be prepared for?

Thank you

Send a supplementary WS attaching the new judgment by HHJ Murch. Search the forum.

noubee

@milkybk thank you for such a reassuring comment. It is incredibly helpful to hear from someone who has been through the process themselves.
Thank you @B789 and @Le_Kirk I definitely do want to get my costs back and it is indeed true that my set-aside is based on the fact that the claim was never served properly to me.

noubee

Hello @Coupon-mad please could you clarify if I should be sending this additional witness statement to the judge prior to my court session or just print it out and bring with me on the day?

Le_Kirk

You cannot just turn up at a hearing with new information/evidence as the claimant will accuse you of ambushing them.  You must send it to the court with a copy to the claimant/solicitor.

noubee

@Le_Kirk thanks that makes sense. There is a new development on the case as I have received an email from ELMS Legal with a consent order as follows:

Dear Sirs

Please find attached a copy of the consent order that we request is placed on file in preparation of the above hearing listed for 24 October 2023. 

A copy has been sent to the defendant. 

Please confirm receipt.

Then they have attached the following PDF document to the email

CONSENT ORDER

Upon the Parties having consented and agreed to the terms set out below:-

IT IS HEREBY ORDERED THAT:

1. The judgment dated xx/xx/2023 be set aside.

2. The claim be allocated to the small claims track.

3. No order as to costs.

Signature of ELMS Legal

Blank line provided for me to insert my signature

NB: The email was addressed to myself and to the Birmingham county court. Also, they have a fine print stating the following in their email "Please be advised that we do not accept service of any court documents via email and please serve any court documents to our registered office address above.". Makes me wonder why they are sending me this via email rather than in the post?

Please any recommendation on how I should rerspond to this email?

KeithP

Yesterday you wrote...

noubee said:

I definitely do want to get my costs back...

But paragraph 3 on that proposed Consent Order states...

3. No order as to costs.

I.e. they will consent provided it costs them nothing.

Think very carefully before signing that.

Coupon-mad

noubee said:

@Le_Kirk thanks that makes sense. There is a new development on the case as I have received an email from ELMS Legal with a consent order as follows:

Dear Sirs

Please find attached a copy of the consent order that we request is placed on file in preparation of the above hearing listed for 24 October 2023. 

A copy has been sent to the defendant. 

Please confirm receipt.

Then they have attached the following PDF document to the email

CONSENT ORDER

Upon the Parties having consented and agreed to the terms set out below:-

IT IS HEREBY ORDERED THAT:

1. The judgment dated xx/xx/2023 be set aside.

2. The claim be allocated to the small claims track.

3. No order as to costs.

Signature of ELMS Legal

Blank line provided for me to insert my signature

NB: The email was addressed to myself and to the Birmingham county court. Also, they have a fine print stating the following in their email "Please be advised that we do not accept service of any court documents via email and please serve any court documents to our registered office address above.". Makes me wonder why they are sending me this via email rather than in the post?

Please any recommendation on how I should rerspond to this email?

Obviously it's a big fat "no".

You can see what they are doing there!  

You also need to be ready for an idiot Judge thinking that's a signed Consent Order.  It should not even be headed 'consent order' because it's merely a draft of what THEY want.

Reply and copy in the court stating this is NOT a 'Consent Order' at all, and looks to be a way of misleading the court. The parties have NOT "consented and agreed". This document is merely one party's unilateral Draft Order (nothing more) and the Defendant/applicant has ever seen it before and outright rejects it, because the applicant seeks their costs as well as the claim being dismissed and the CCJ set aside.

Attach a schedule of costs if you haven't already.

And if you DIDN'T already attach this persuasive Appeal judgment (where the CCJ set aside applicant was awarded full costs of four figures)  DO IT NOW in your reply:

Send a supplementary WS attaching the new judgment by HHJ Murch. Search the forum. 

Le_Kirk

I can only echo what @KeithP and @Coupon-mad wrote.

noubee

Many thanks for the great help and advice on how to respond to this email. Please find below a copy of the email that I plan to send as a response. I would appreciate any feedback on what needs changing before I send it off.

Please note that I have made reference to the HHJ Murch case in the last paragraph (10.2) of the witness statement. However, I only found out about the CCJ via a DCBL debt notice letter and I never received the Particulars of Claim due to them being sent to the wrong address. So I don't know if it actually makes sense to include a reference to HHJ Murch in my WS?

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Dear Sir/Madam

The Defendant would like to note that prior to receiving this email, the Defendant had never seen the attached document sent by the Claimant which is titled 'CONSENT ORDER'. In fact, it is the Defendant's opinion that it is quite misleading for the said document to be titled 'CONSENT ORDER'. Rather, this document should be titled 'DRAFT ORDER' as it is merely the Claimant's unilateral draft of what they wish to be achieved. The Defendant, has never seen this document before and as such would like to reject it.

The Defendant would like to reiterate that they have made an application to seek costs as well as the claim being dismissed and the CCJ set aside.

Additionally, the Defendant would like to submit as evidence the attached witness statement which differs from the originally submitted statement by the addition of paragraph 10.2.

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Witness Statement

In the Birmingham County Court

Claim no.: KXXXXXXX

Between:

Excel Parking Services Limited

Claimant

--- and ---

Bxxxxxxxxxxy

Defendant

 

Witness Statement

I, Bxxxxxxxxxxy of [Birmingham address], am the Defendant in this matter.

This is my witness statement in support of my application for an order to set aside the judgment dated xx/05/2023.

1.          I learned of the existence of this claim on the 27/06/2023 when I received a ‘Notice of Debt Recovery’ letter [attached in Appendix A] from Direct Collections Bailiffs Ltd at my current address [Birmingham address].

2.          It is my understanding that the claim was served at [Stafford address]. However, I no longer live at that address.

3.          I have lived at my current address since December 2020. This is evidenced by my driver’s licence [attached in Appendix B], my most recent update to the electoral register [attached in Appendix C], my most recent council tax bill [attached in Appendix D], and my mortgage completion statement [attached in Appendix E].

4.          Prior to the document stated in paragraph 1.1, I have never received any previous documentation from the Claimant regarding this matter and as such I was never able to defend the claim.

5.          Given that this claim is related to a parking incident which occurred in October 2022, it follows that the Claimant would have had reason to believe they did not hold my current contact details having received no response from me for over 6 months.

6.          It is therefore unreasonable for the Claimant to pursue a claim against me without ensuring that they had my correct and current contact details, especially given the multitude of avenues that could have been used to obtain my current address, vis, tracing agencies, etc.

7.          Based on the above, I believe the Claimant did not fulfil their duty to use my current address when making their claim, meaning I did not have the opportunity to defend this claim properly.

8.          I contacted the Claimant’s legal representative (ELMS Legal Ltd) via email [attached in Appendix F] on 30/06/2023, to inform them about my intention to apply for the case to be set aside but I have not received any response from them.

9.          As a result of all the above, I respectfully request that the Court sets aside the judgment in this claim under CPR 13.2 for improper service of the court documents.

10.       Alternatively, if the court is not inclined to set aside the judgment in this claim under CPR 13.2, there are good reasons why the judgment should be set aside under CPR 13.3

10.1.  I believe that I have good prospects of defending the claim because, given the circumstances, a reasonable grace period should have been given before issuing a charge. When I parked my car, I purchased and displayed my parking ticket on my dashboard, went about my business, realised my parking ticket had expired, and returned to purchase and display another ticket in order to extend my stay at the car park.

10.2.  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.

Statement of truth: I, Bxxxxxxxxxxy, 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.

Signature:

Date: xx/10/2023

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Mars28

Good luck with your court case. It's worth remembering for everyone else in the room, it's just another day in the office. Try and calm yourself, trust in your preparation and relax into it. The judge in mine fairly simply led the way based off of my WS and the evidence I provided. The claimant didn't have any real come back and so it was set-aside. It was almost an anti-climax after all the research, help and preparation etc.

After my set-aside hearing, but before my Defence, I manage to prove that neither the claimant nor DCBL had conducted a trace. I sent Freedom of Information requests to both asking explicitly whether they had carried on out, and what they had had returned. Both ended up stating that it was the other that had done so, contrary to what their WS stated to the court on two different occasions. It was nice to land that blow on them during court.