Having a PCN CCJ Set Aside and Defending

bohomark

bohomark said:

Any advice on the following would be greatly appreciated.

Supplementary Witness Statement

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

This is a supplementary Witness Statement in support of my application, dated ** August 2023, for an order to set aside the judgment, dated ** February 2023.

1.    A video, recorded by a friend of the Defendant, entering the carpark at the time of my original witness statement, attached to this email, and marked “Video A” clearly shows the route from the motorway to the space in which the Defendant parked. On this route there is not one legible sign, and whilst the Claimant, asserts that if the Defendant could read official road signs, it should be possible to read the Claimant’s signs, this video clearly shows that this is not the case.

 

2.    Photographs A, B, C, D and E (listed as Appendix A and attached to this document), taken by a friend, at the time of my original witness statement, of the car park, shows the purported contractual sign at the location. It is clear from the photographs that:

a.     There are no legible signs between the entrance of the carpark and the parking space in which the Defendant parked (marked with a blue arrow).

b.    There are no signs which can be seen, let alone read, from this space.

c.     The nearest sign, pictured at the other end of the carpark, cannot be read from since it is faded to the degree that it is illegible from a distance and looks to be abandoned.

 

3.    Photograph F (listed in Appendix A and attached to this document), taken from Google Maps, shows the distance between the parking space and nearest sign (pictured in Photographs D and E). This is a distance of 30 meters or more.

 

4.    Although the Claimant had submitted maps listing the placing of signage around the carpark, it is apparent from the video and photographs that this signage is either neglected or missing altogether.

 

5.    The Defendant would like to take this opportunity to reassert that the £100 penalty charge is disproportionate to the original parking charge, going beyond the £85 charge of that found to be acceptable in Beavis by almost 20%, and not offering for a 50% discount if the fine be paid within 14 days, as is usual.

 

6.    A recent persuasive appeal judgment (attached in Appendix C) in another private parking case: Civil Enforcement Limited v Chan (Ref. E7GM9W44).  This case confirms that where the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16, the claim should be struck out, the CCJ set aside, and costs awarded to the Applicant/Defendant.  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 same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4 and award the Defendant costs in full, as happened in Chan appeal case (which also started with a N244 CCJ set aside application, which was initially wrongly refused by the first learned Judge).

 

7.    I believe that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the above persuasive authority and award costs.

 

8.    Since the Defendant’s original Witness Statement, the knock-on effects of the original default judgment have already had a significant impact. As a direct result of the judgment, the Defendant has lost access to any kind of credit and his vehicle insurance has risen from £729.71pa (£61.80pm) to £3222.92pa (£268.58pm). (a photograph marked Photograph G in Appendix B is attached to this document). Obviously, this is unaffordable, meaning that in 14 days, the defendant will no longer have access to a vehicle. Since he works all over the UK and Europe, this will have an undoubted effect on his ability to work, and a direct impact on his income. Should the original judgment be upheld it will have a devastating effect on the finances of the Defendant and his ability to support my family. The Defendant therefore asks the court to take this into consideration when passing judgement.

 

9.    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.

@Coupon-mad: Is this okay? Would you recommend any changes? Obviously there are photos attached to the original, but I can't show them here.

KeithP

bohomark said:

Obviously there are photos attached to the original, but I can't show them here.

Why not?          

UncleThomasCobley

bohomark said:

It says in the other thread that I should attach the transcript (of the CEL v Chan?) Where would I get that. I've searched the forum and online, but can't find it.

It is available in many posts in the forum. However, I give you a link which is also available in many posts on the forum:

https://www.dropbox.com/scl/fi/xy54utt9djv55xitfp7lk/CEL-appeal-transcript.pdf?rlkey=304syf9czf5arl3i1u1ircjln&dl=0

bohomark

**UPDATE**

I emailed the and asked if they would postpone to the date, which they agreed to, so I have a month to prepare now.

bohomark

bohomark said:

Any advice on the following would be greatly appreciated.

Supplementary Witness Statement

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

This is a supplementary Witness Statement in support of my application, dated ** August 2023, for an order to set aside the judgment, dated ** February 2023.

1.    A video, recorded by a friend of the Defendant, entering the carpark at the time of my original witness statement, attached to this email, and marked “Video A” clearly shows the route from the motorway to the space in which the Defendant parked. On this route there is not one legible sign, and whilst the Claimant, asserts that if the Defendant could read official road signs, it should be possible to read the Claimant’s signs, this video clearly shows that this is not the case.

 

2.    Photographs A, B, C, D and E (listed as Appendix A and attached to this document), taken by a friend, at the time of my original witness statement, of the car park, shows the purported contractual sign at the location. It is clear from the photographs that:

a.     There are no legible signs between the entrance of the carpark and the parking space in which the Defendant parked (marked with a blue arrow).

b.    There are no signs which can be seen, let alone read, from this space.

c.     The nearest sign, pictured at the other end of the carpark, cannot be read from since it is faded to the degree that it is illegible from a distance and looks to be abandoned.

 

3.    Photograph F (listed in Appendix A and attached to this document), taken from Google Maps, shows the distance between the parking space and nearest sign (pictured in Photographs D and E). This is a distance of 30 meters or more.

 

4.    Although the Claimant had submitted maps listing the placing of signage around the carpark, it is apparent from the video and photographs that this signage is either neglected or missing altogether.

 

5.    The Defendant would like to take this opportunity to reassert that the £100 penalty charge is disproportionate to the original parking charge, going beyond the £85 charge of that found to be acceptable in Beavis by almost 20%, and not offering for a 50% discount if the fine be paid within 14 days, as is usual.

 

6.    A recent persuasive appeal judgment (attached in Appendix C) in another private parking case: Civil Enforcement Limited v Chan (Ref. E7GM9W44).  This case confirms that where the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16, the claim should be struck out, the CCJ set aside, and costs awarded to the Applicant/Defendant.  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 same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4 and award the Defendant costs in full, as happened in Chan appeal case (which also started with a N244 CCJ set aside application, which was initially wrongly refused by the first learned Judge).

 

7.    I believe that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the above persuasive authority and award costs.

 

8.    Since the Defendant’s original Witness Statement, the knock-on effects of the original default judgment have already had a significant impact. As a direct result of the judgment, the Defendant has lost access to any kind of credit and his vehicle insurance has risen from £729.71pa (£61.80pm) to £3222.92pa (£268.58pm). (a photograph marked Photograph G in Appendix B is attached to this document). Obviously, this is unaffordable, meaning that in 14 days, the defendant will no longer have access to a vehicle. Since he works all over the UK and Europe, this will have an undoubted effect on his ability to work, and a direct impact on his income. Should the original judgment be upheld it will have a devastating effect on the finances of the Defendant and his ability to support my family. The Defendant therefore asks the court to take this into consideration when passing judgement.

 

9.    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.

I'd really appreciate some feedback on this, before I submit it, if anyone has time to look at it. Thanks

Coupon-mad

I'd remove para 5 as it' diminishes your case. It's not a penalty charge, doesn't have to be £85 and did offer a discount (had you received the PCN) so those points actually make it easier for the Claimant to get a foothold by responding.

bohomark

UncleThomasCobley said:

bohomark said:

It says in the other thread that I should attach the transcript (of the CEL v Chan?) Where would I get that. I've searched the forum and online, but can't find it.

It is available in many posts in the forum. However, I give you a link which is also available in many posts on the forum:

https://www.dropbox.com/scl/fi/xy54utt9djv55xitfp7lk/CEL-appeal-transcript.pdf?rlkey=304syf9czf5arl3i1u1ircjln&dl=0

Apologies, I missed this post for some reason. Thanks! 

bohomark

Coupon-mad said:

I'd remove para 5 as it' diminishes your case. It's not a penalty charge, doesn't have to be £85 and did offer a discount (had you received the PCN) so those points actually make it easier for the Claimant to get a foothold by responding.

Okay. Thank you. I'll get it sent in.

bohomark

Hi everyone,

A quick update:
My hearing to have the Judgement set aside, just over two weeks ago. The Judge found in my favour, but only just.
It was ordered that:
The judgement be set aside on the condition that the defendant file by 18th December.
Upon receipt of the Defendant's defence, the court will send out Small Claims Directions Questionnaire will be sent out to all parties for completion within 14 days (their bad grammar, not mine)

She did not accept that the CCBC was in anyway to blame for sending out Small Claims Questionnaire, by Second Class Post, during a postal strike, despite having had ample warning. She therefore ignored my application for costs against the CCBC. I honestly believe that she had no choice in this. As a district judge, I think that finding the CCBC to blame and awarding costs against them would have been a bridge to far.

She did however, accept that the 6 month delay between the Judgement and the application to set aside was not too long, and that due to the mitigating circumstances of the nature of my work, my residence in another country and my lack of knowledge of law (and therefore the time to research), were sufficient grounds to accept the application. She also accepted I had a reasonable chance of defending the action.

My question to the forum:
When they say I have to file by 18th December, is that just my defence document, or do I need to send anything else in with it?

Thanks

Coupon-mad

It is just your defence. Well done!