Having a PCN CCJ Set Aside and Defending

bohomark

Hi all,

I was going to pay a CCJ I have, but after the massive amount I learned from my last foray into defending a PCN in County Court, I have decided to try to have a CCJ Set Aside and possibly to defend it, depending on the feedback.

I work in Close Protection and as such often work long and unusual hours. After working all night, last summer, I attempted to drive back to base, in Yorkshire, from London. By the time I reached London Gateway Services, on the M1, I realised that that was not going to happen, so I pulled off, parked and went to sleep in the driver’s seat of my vehicle. I thought I slept for a couple of hours, but in fact, it must have been over four hours.

I was quite surprised when I received a collection letter from ParkingEye, asking for the £100 that I apparently should have paid, to park for more than four hours. I was also incensed, as I thought that 'Rest Stops' as the Americans call them, were exactly that. Unfortunately, I do not have the original letters but from memory, I don't think ParkingEye had added charges, at that point, but I was furious that the minimum tariff to 'rest' for a few hours was £100. I could have had a room in the Travel Lodge for that! Anyway, I ignored the letters, thinking they can't possibly hope this will stand up in court, and if they do threaten court, I'll take legal advice, and in a worst-case scenario, I'll just pay. That backfired, because they did go to court, and they did it during the postal strikes. I don't remember if I received a Letter Before Action, but I definitely did not receive a Claim Form. The first I knew of it was the Judgement for Claimant (in default) letter, which I received along with several DCBL letters when I returned home. A little annoyed about all this, I spent three days trying to contact NCCBC by phone, and they told me that they post the claim forms and just assume they've been delivered, even during a postal strike. I'm pretty sure I know the response we'd get, if the boot were on the other foot.

Well to save time, I will bullet point the facts, as I remember them:

1. The Claimant was ParkingEye Ltd. They have now engaged DCBL.
2. I think the basic charge for parking was £100. I'm working away in Paris at the moment, but I've asked a friend to go to the services and photograph the parking area and signage, to be sure, when she’s passing, in a week or so.
3. I don't think they added fees to the original claim, but I feel that £100 was extortionate, bearing in mind, tired drivers have no other options.
4. I did not notice the signage as I drove into the carpark. On visiting, at a later date, I did see that they have a big sign by the entrance, but I did not read it at the time, as I assumed it only pertained to overnight stays. This assumption was based on the fact that, in 33 years of driving, I've never been required to pay to park in a Motorway Services before.
5. I don't live at my UK mailing address. It is my parents’ house and I'm sometimes based there when working in the UK, so on occasion, I get mail late, if I haven't been there for a few weeks or months. My parents are both 80 within the next 12 months and can be a bit scatty, so I don't have them open the post, and to be honest, there has never been reason to do so, in the past. Anything of any importance usually arrives electronically. Having said that I do always get my post eventually. On this occasion, The Claim Form simply never arrived. Of that I am sure.
6. When I spoke to a lady at NCCBC, she said that she was sure it would have been because of the strikes, and that it had happened to quite a few people. (I love the way they take zero responsibility for the damage they do to innocent people's lives.)
7. The amount due rose to £207 including £107 in costs.
8. That amount has since risen to £277, since DCBL stuck their £70 collection fees on top.
9. The Judgement was issued on 07/02/2023

I've read quite a few threads, including ‘Newbies’, which I constantly have open to refer to, but there are a few details that seem to warrant special attention, in this case:

1. It was at a motorway rest stop.
2. The parking charge was much higher than usual.
3. I didn't notice/read the sign because I didn't think it was relevant, since I have never needed to pay at a Motorway Services before.

I’d like to know:

1. Is there a defendable position, since there was signage, I just didn't read it, and they did not add fees until court.
2. Most importantly: Am I entitled to have the Judgement Set Aside, regardless of the defence (even if I admit liability and chose to pay), since the Court knowingly sent out documents by Royal Mail, during a strike, despite knowing that there was a good chance they would be served late, or not at all? The CCJ is way more important to me than the fine.

Finally, in the interest of getting the ball rolling quickly: I read on one thread that it's best to get the Claimant to agree to have the Judgement Set Side, since it reduces everyone's costs, and I should contact them. Can anyone advise on how to put this in an email, and who to address it to, or point me to a thread with some details that may help?

Thanks again, to everyone involved here. It's very liberating to know there are ways of fighting back against these people.

Coupon-mad

Could succeed.  Could be a difficult one unless your local court is Southampton...

We had a few cases where Claim forms were not served due to postal strikes in December.  Most were set aside (Southampton court did it straight away). One was refused by a clueless Judge; think it was the thread by @Juliansnemesis

For successful ones, read the threads by:

@Sasanova

@63realfan

bohomark

Coupon-mad said:

Could succeed.  Could be a difficult one unless your local court is Southampton...

Thanks for getting back to me, as always. I'm based near Sheffield, so I presume that would be my nearest County Court.

I've read through quite a bit of the threads above and will continue tomorrow. I suppose the most immediate question I have, which doesn't appear to be answered in any of the above (or I've just missed it) is:

• Are there any examples on the forum of letters/emails to the Claimant, asking if they would be agree to have the Judgment set aside? If not, what information should I include, and should I just send it to the Claimant, or does it need to be distributed wider? I'm just keen to get the ball rolling, as DCBL are already threatening bailiffs. 
  

Thanks, for all your help, as always.

Coupon-mad

If you look at old posts by @henrik777 he has been involved in plenty of cases where consent to set aside was sought first.

But why would they consent?  There's nothing in it for them and (unusually) they served the Claim to the right address, so you have no leverage over them.

Also be aware you WILL get a CCJ on day 30 if it isn't paid, even if you apply to set aside. The CCJ is not frozen.

bohomark

Coupon-mad said:

If you look at old posts by @henrik777 he has been involved in plenty of cases where consent to set aside was sought first.

Unfortunately, I'm told I do not have access to @henrik777's thread. I don't know why.

Yes, thought that it would be pointless to ask them to agree, but then I read a thread (I can't remember which, since I've read so many), saying that it's in their best interests to agree, as if the court finds in my favour and awards costs, those costs are less. Maybe I misunderstood.

Unfortunately, the 30 day period was up months ago. I've been working a lot, so have only saw the letter a few weeks ago. I'd been waiting for a solicitor friend to get back to me regarding my next move, but he hasn't, so I'm moving forward with the advice here.

Coupon-mad

His thread? What thread?  He has 3,051 Posts and you can certainly view his 'comments'.

As you are past the 30 days you may as well try all set aside avenues but don't hang about - the court requires promptness.

An application this month.

bohomark

Coupon-mad said:

His thread? What thread?  He has 3,051 Posts and you can certainly view his 'comments'.

Apologies, obviously still new to the forum. I just clicked the thread. I didn't realise I could click on the comments too.

Thanks

bohomark

Hi guys,
I'm working on my witness statement for the N244, with the help of several recommended threads. However, I've got a bit stuck while working on CPR 12.2/12.3. I've read the rules (confusing as they are to a layperson) but I can't seem to find any part of the rules which specifically refer to a failure to serve papers on the defendant. I have quoted CRP13.3(1b), as a CCJ would seriously effect my career and by default income, but I need to make sure that I refer to the right paragraph when referring to the Claim Form not being served due to the postal strike. Is it the same paragraph (it appears to the court that there is some other good reason why) Can anyone help?
Thanks

Coupon-mad

 need to make sure that I refer to the right paragraph when referring to the Claim Form not being served due to the postal strike. Is it the same paragraph (it appears to the court that there is some other good reason why) 

I would say so.

bohomark

Coupon-mad said:

 need to make sure that I refer to the right paragraph when referring to the Claim Form not being served due to the postal strike. Is it the same paragraph (it appears to the court that there is some other good reason why) 

I would say so.

Thank you.

bohomark

Draft Order and WS below: obvious thanks to @Sasanova for all the info in his thread and for the template, which I've adapted, and to @63realfan, who's thread was also invaluable.

I am currently working away and as such have had to guess at some of the dates and info ahead of contacting the CCBC etc. Obviously, I will adapt all when I have specifics. I also intend to add more info on the defence, based on inadequate signage and disproportionate penalty charge (basic charge £11, penalty £100), but will not be able to do that until I have photographs from a friend who is calling at that services to gather info. For now, I'm just keen to check my wording and see if it reads well with those more in the know than I. 

Draft order

Upon reading the defendant's application dated......

It is ordered that,

1- The judgment for claimant dated......be set aside as the claim form was never received at the defendant’s address. 

2a- The claimant to pay the Defendant's cost of this application £275 in addition £228 due to Defendant’s time in preparation (12 hours as litigant in person at a rate of £19 per hour).

-0r-

2b- The court recognises that there is ample evidence that a number of claims issued on or around the time of the 2022 postal strikes, were never served.  In this case, having heard from the Defendant that he has still not received the claim, and as a result has suffered a CCJ due to court error or matters beyond his control, and with the Overriding Objective in mind, it is ordered that the Defendant's £275 fee to be refunded by the CCBC accordingly, and the claim be served afresh by the CCBC with a new password and claim number, with the Defendant being allowed 14 days from service to acknowledge it then to defend within the usual time period afforded by the claim paperwork.

3- All enforcement to be put on hold pending the outcome of the application.

 

Witness Statement 

I am........and I am the defendant in this matter. This is my supporting Statement to my application dated ........requesting to:

a)    Set aside the default judgment dated........,as it was not properly served at my address. 

b)    Order for original claim to be dismissed. 

c)      

a.     Order for the claimant to pay the defendant £275 as reimbursement for the set aside fee, in addition £228 for time in preparation (12 hours as a litigant in person at a rate of £19 per hour).

-or-

b.     The court recognises that there is ample evidence that claims (or a batch of claims) issued on (DATE) have never been served.  In this case, having heard from the Defendant that he has still not received the claim, and as a result has suffered a CCJ due to court error or matters beyond his control, and with the Overriding Objective in mind, it is ordered that the Defendant's £275 fee to be refunded by the CCBC accordingly, and the claim be served afresh by the CCBC with a new password and claim number, with the Defendant being allowed 14 days from service to acknowledge it then to defend within the usual time period afforded by the claim paperwork.

1-    I understand that the claimant obtained a default judgment against me as the Defendant on.....

2-    I am aware that the claimant is ParkingEye Ltd, and that the assumed claims in respect of an unpaid PCN.

3-    The claim form was not served at my address, and I thus was not aware of the Default Judgment up until the arrival of the letter of Judgment from the County Court Business Centre on the 07 February 2023

4-    The missing claim has still not arrived to date, and thus remains unserved.

5-    I have acted as promptly as possible, given my circumstances, in that my main residence is in Spain and my work as a Close Protection Operative takes me all over the UK and Europe, for weeks or even months at a time. Towards the end of May I received the Court Judgment along with other mail sent to my parents’ address, which I use for my UK mail. I immediately began to do my own research. This took several weeks, hindered by my very heavy workload over the spring and summer months. I returned to the UK, from five weeks’ work in Paris, on 24 July 2023 and, now understanding the situation and the options open to me, acted by contacting the County Court Business Centre (CCBC) on 25 July 2023, initiating the process of applying to have the Judgment set aside.

6-    It should be noted that, when I am deployed, my work comprises of 12-to-18-hour workdays, with no days off. This leaves very little time for reading and research on matters which, until now were totally outside my realm of experience. Between 1st June, and 24th July 2023, I was not deployed for just 13 of the 54 days. I am not in the habit of ignoring Court communications of any kind, and despite serious limitations on my time, I always act as promptly as possible to resolve outstanding issues.

7-    On returning to the UK, I immediately contacting the CCBC on 25 July 2023, raising my concern in relation to the Default judgment. The Court Administrator told me that the claim probably did not reach me because of the Postal Strike that took place of December 2022. I asked for the PoC to be emailed to me. The conversation was recorded, and I can be submitted as evidence.

8-    Referring to CPR 13.2 and CPR 13.3. I submit the CCJ should be set aside as the claim form was not served, making it impossible for me to either acknowledge service or submit a defence.

9-    Furthermore, my work as a Close Protection Operative requires me to look after celebrities, politicians and other high net worth individuals, their families, and assets. In the past this has included royalty, aristocracy, billionaire businessmen, and serving government ministers. For obvious reasons, the background checks that I must submit to are probing and rigorous, and even a CCJ for a parking charge could seriously impact or end my career (this is not an exaggeration). For that reason alone, it is essential that the Court sets aside this judgment as directed in CPR 13.3(1b).

10- Should the judgment be set aside. I am confident I can robustly defend the original PCN.

11- I am prepared to swear an oath, that not only was the claim not served and as of the date of this witness statement remains unserved, and that the impact of a CCJ could have a profound and negative impact on my career.

12- 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 of trust without an honest in its truth.