Having a PCN CCJ Set Aside and Defending

bohomark

Coupon-mad said:

A Draft Order is a completely separate Word Doc whereas the WS is going to be saved as a signed PDF.

The above looks like one document.

Your very long paragraph in the Draft Order is too long.  Much of that should be in your WS instead.

A Draft Order should be short - just an Order to set aside the CCJ - and this (below) makes no sense to me:  

2-    Order for original claim to be dismissed, on the grounds that no contract ever existed between the Claimant and the Defendant.

A Judge can't decide on the mere basis of your application that there was 'no contract' (that comes at the second hearing after the CCJ is set aside).  The Claim will not be dismissed out of hand without a hearing about it, as the C served the Claim to the right address and has done nothing wrong.

Got it. Thanks. I totally misunderstood that from the thread I took the original template from.

bohomark

OK, does this read better?

Draft order

Upon reading the defendant's application dated 27th July 2023

It is ordered that,

1-    The judgment for claimant dated ** February 2023 be set aside as the claim form was never received at the defendant’s address. 

2-    The court recognises that there is ample evidence that a number of claims issued during or after the December 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.

bohomark

Does this read better? 

@Coupon-mad is 11c okay?

Witness Statement 

I am **********, and I am the defendant in this matter. This is my supporting Statement to my application dated Thursday 27th July 2023 requesting to:

a)    Set aside the default judgment dated 07 February 2023, as it was not served at my address. 

b)     

i.     The court recognise that there is ample evidence that a number of claims issued on or after the December 2022 postal strikes, were never served.

ii.     On 17 November, the CWU announced that the strike days over Black Friday would go ahead, as well as additional strike days on 9, 11, 14, 15, 23 and 24 December respectively. Knowing well in advance of the strikes and failing to find other means of delivery, the County Court Business Centre (CCBC) continued sending out Claim Forms, by Royal Mail second class delivery, despite knowing full-well that, compounded by seasonal mail issues, these strikes would have an undoubted effect on deliveries, and that there would be a significant chance that many of the Claim Forms would be late, or remain undelivered entirely. In doing so, the CCBC failed to show due diligence or any regard for the effect that this could have on the intended recipients. Precisely because of the ample foreknowledge of these strikes and the failure to take any mitigating action, the CCBC cannot simply keep blaming the Royal Mail for its failures. It was the CCBC’s decision to keep using the cheapest and most likely to fail service offered by Royal Mail (or any other delivery operator).

iii.      In this case, having still not received the claim, and as a result, suffered a CCJ due to court error or matters beyond my control, and with the Overriding Objective in mind, the £275 fee 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.

c)     All enforcement to be put on hold pending the outcome of the application.

 

1-    I understand that the claimant obtained a Default Judgment against me as the Defendant on ** February 2023

2-    I am aware that the claimant is ParkingEye Ltd, and that the assumed claim is 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 until I received it when collecting my mail in May.

4-    The missing Claim Form 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. (Please see attached evidence in the form of my Spanish Resident’s ID Card.) 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 called the County Court Business Centre (CCBC) to ask how this could have happened. The Court Administrator told me that the claim probably did not reach me because of the Royal Mail Postal Strikes which took place in December 2022, and that I would need to fill in an N244 and state my case for setting aside the Judgment.

6-    Knowing nothing about the ensuing process, I immediately began to research how to best fill out an N244 and what other information would be required. This was considerably more complicated than I had expected and involved a lot of reading about court rules and previous Judgments etc. It took several weeks, hindered by my very heavy workload over the spring and summer months.

7-    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 on leave 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.

8-    On returning to the UK after a five-week deployment in Paris, late on 24th July 2023, and now understanding the situation and options open to me. I acted immediately by trying to contact the CCBC by telephone on 25th July 2023, unsuccessfully. I tried again on 26th July 2023, this time successfully. I obtained further information regarding the Particulars of the Case, initiating the process of applying to have the Judgment set aside. I also discussed the issue of the Postal Strikes with the Court Administrator, who informed me that there were many other cases like mine. She also confirmed that the CCBC had taken no additional action to mitigate the effects of the strike. I asked for the PoC to be emailed to me. The conversation was recorded, and will be submitted as evidence, should the court wish.

9- 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 on time, or at all.

10- 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, prominent billionaire businessmen, and serving government ministers, as well as ‘A-list’ actors and musicians. 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).

11- Again, referring to CPR 13.3: Should the judgment be set aside. I am confident I can robustly defend the original claim.

a.     The Claimant’s contract is based solely on the presumption that I saw and read signage in the carpark. On revisiting the carpark, it is apparent that the Claimant’s signage is woefully inadequate, being extremely poorly maintained, severely faded and peeling, and is badly placed, making it almost impossible to see, let alone read, from many parts of the carpark. It relies on the driver exiting his vehicle to enter the building, something which I did not do, as I stopped my vehicle to sleep, after being on duty all night. From the entrance of the carpark to point at which I parked, without exiting my vehicle, I passed no readable signage, nor was any visible from the parking space. I have photographs of the above to submit as evidence. It is therefore rigorously denied that I saw the signage and that any such contract between the Claimant and I ever existed.

b.     The charge of £100 for failing to pay the required amount to use the carpark (£15), is disproportionately high, making it penal, and therefore unenforceable. This is one of several facts which distinguish this case from ParkingEye v Beavis, where there was no quantified loss.  In this case, the loss is £15, plus the cost of sending out three templated debt collection letters at most, not that the sign was visible to inform the driver about either the fee or the onerous 'penalty' clause.…

c.      Referring to ParkingEye v Bowen, and to quote Nicholas Bowen KC, “I defend your misconceived case on a public interest basis.” Mr. Bowen KC, also stated the Claimant was “indulging in pernicious bullying tactics against motorists.”  A statement with which I must agree. The Claimant’s high fees for stopping to rest at a motorway services, as well as the disproportionately high penalty charge, is severely prohibitive, actively discouraging many tired drivers from taking necessary rest stops and adding to the many dangers on already crowded and increasingly hazardous motorways. It has been directly criticised by motoring organisations such as the AA.

12- 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.

13- 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.

 

Le_Kirk

bohomark said:

OK, does this read better?

Draft order

Upon reading the defendant's application dated 27th July 2023

It is ordered that,

1-    The judgment for claimant dated ** February 2023 be set aside as the claim form was never received at the defendant’s address. 

2-    The court recognises that there is ample evidence that a number of claims issued during or after the December 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.

I had to look carefully for the actual "order" part in your paragraph 2#.  Suggest you put the "Defendant fee be refunded" first with the reasoning afterwards.

Coupon-mad

All good though!

bohomark

Le_Kirk said:

bohomark said:

OK, does this read better?

Draft order

Upon reading the defendant's application dated 27th July 2023

It is ordered that,

1-    The judgment for claimant dated ** February 2023 be set aside as the claim form was never received at the defendant’s address. 

2-    The court recognises that there is ample evidence that a number of claims issued during or after the December 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.

I had to look carefully for the actual "order" part in your paragraph 2#.  Suggest you put the "Defendant fee be refunded" first with the reasoning afterwards.

Perfect. Thanks.

@Le_Kirk @Coupon-mad
Does this make more sense, or should I remove the bit about "Overriding Objective in mind", which, to be honest, I don't really understand? 

1-    The Defendant's £275 fee to be refunded by the CCBC, 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. Accordingly the court recognises that there is ample evidence that a number of claims issued during or after the December 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 only fair that the fee should be fully refunded.

Coupon-mad

Looks fine.

bohomark

bohomark said:

OK, does this read better?

Draft order

Upon reading the defendant's application dated 27th July 2023

It is ordered that,

1-    The judgment for claimant dated ** February 2023 be set aside as the claim form was never received at the defendant’s address. 

2-    The court recognises that there is ample evidence that a number of claims issued during or after the December 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.

@Coupon-mad @Johnersh

I was rereading some of the old threads and I noticed one by @Error1234. It refers to ongoing costs. Do I need to add, "defendants costs in any event" or "costs reserved" should ParkingEye choose to continue?

bohomark

Also regarding N244 questions:

3- What order are you asking the court to make and why? Do I fill in an abbreviated version of the asks "1- The judgment for claimant dated 07 February 2023 be set aside. 2- The Defendant's £275 fee to be refunded by the CCBC. 3- All enforcement to be put on hold pending the outcome of the application." or do I say, "please see attached document"?

8- What level of Judge does your hearing need?

I think this is a District Judge?

9.	Who should be served with this application?

Do I need to put ParkingEye and their address?

10-	What information will you be relying on, in support of your application?

Is this evidence regarding the PCN such as photos, or the reason to set it aside? In which case, I don't really have any evidence to present other than my witness statement, so do I just write, "See attached Witness Statement?

Thanks again

Coupon-mad

Yes that is all correct.

And do add 'The Defendant's ordinary costs for attending & travel to the set aside hearing be reserved until the final hearing'.