Do I have an adequate defense for Set Aside WITHOUT conset?

TerryDown

Hi there

Please help me make sense of my options as I do not beleive I have a solid defense

Here is a breakdown of the addresses i have lived in and what happened in regards to getting a parking CCJ

Address A (listed as current electoral role address) This is where the CCJ was served, and i assume where parking charge documentation sent (have sent a FOIR to PPC). I moved from here YEARS ago

Address B (moved here after address A, updated the DVLA, whilst living here alleged parking violation occured, i did NOT update the electoral role). I dont think i got any letters of the parking violation whilst living here

Address C (Where I currently live, during this time the CCJ was served to address A. BUT I HAVE NOT UPDATED EITHER MY LICENSE OR ELECTORAL ROLE DETAILS, INFACT I STILL HAVE NOT DONE THIS)

Thus, if I try to get a set aside. My only argument I can make is the PPC should have searched the DVLA for the correct address at the time, my credit report STILL lists address A as my current address

Trouble is. The only way they would have found my current address at the time the CCJ was served is by asking my bank, as the DVLA and electoral role would have pointed them to address A & B

Do i have a defence? Are there other lines i can use? I think i have a solid defense to the parking violation its self. but getting a set aside is about the issuing of a CCJ, so is that even relevent now?

Please awnser these questions, i have read around but cant seem to find details relating to my case

Thanks

TerryDown

after some digging i have discovered it turns out the violation occurred after I had moved from address B... !!!!!!

Le_Kirk

You urgently need, if you still own the car, to update your address details for your DL but more importantly your V5C.  This is the address that the parking company (PPC) would need from DVLA but they are only allowed to ask for it once.  They are though required to check (via a soft trace costing 30p) to check your current address for service before issuing court claims.  There are plenty of examples on the forum of people getting set-asides, their N244 form and exemplar witness statements.  You need to tell the PPC and any court that you are involved with, your current address for service else you will not be receiving important communications about this issue.  You also have a duty to act promptly once you discover the CCJ.

TerryDown

Le_Kirk said:

You urgently need, if you still own the car, to update your address details for your DL but more importantly your V5C.  This is the address that the parking company (PPC) would need from DVLA but they are only allowed to ask for it once.  They are though required to check (via a soft trace costing 30p) to check your current address for service before issuing court claims.  There are plenty of examples on the forum of people getting set-asides, their N244 form and exemplar witness statements.  You need to tell the PPC and any court that you are involved with, your current address for service else you will not be receiving important communications about this issue.  You also have a duty to act promptly once you discover the CCJ.

I sold the car not long after the alleged violation. So i can change the date on my DL but not V5C, ive made a SAR to the DVLA to see when they gave out info. I'm not sure if I updated the address on my V5C either.

The set aside is about convincing the court that it was served to an old address, however it is ultimately my fault I have not updated the address. How can i rely on this?

I have seen that as long as I have some kind of a defense then a set aside is possible, so can i word my witness statement in such a way? something like "I am requesting a set aside as i beleive claim has no merit for the reasons below". Though I've also heard that a witness statement should not include the defense

Le_Kirk

Did you check out any other examples of (winning) witness statements on the forum?  That is the best way to get help.  The most recent ones were by the following posters: -

@hallie28

@Harvez63

@parkingpains1

@Jack5656

Coupon-mad

All our CCJ cases are like yours. Everyone has this issue due to not updating their logbooks. This is nothing to worry about.

The fact you sold the car means you can gloss over whether you changed the V5C.  Car was soon sold, and the DVLA address change (or not) is irrelevant because a DVLA address is never an 'address for service'.

The fault here wasn't you.

The fault was the PPC failing to do a 28 pence CRA 'soft trace' which 100% would have revealed a banking address.  They'd have found you.  And doing a soft trace before litigation to check address data is mandatory under BOTH Codes of Practice, and is set out clearly by the DLUHC in the statutory Code in Feb 2022.

They breached the Code of Practice.

When editing the NEWBIES FAQS thread only yesterday, I updated the example links to 'successful CCJ set aside cases' to include one won very well yesterday, with a great skeleton argument.

TerryDown

Coupon-mad said:

All our CCJ cases are like yours. Everyone has this issue due to not updating their logbooks. This is nothing to worry about.

The fact you sold the car means you can gloss over whether you changed the V5C.  Car was soon sold, and the DVLA address change (or not) is irrelevant because a DVLA address is never an 'address for service'.

The fault here wasn't you.

The fault was the PPC failing to do a 28 pence CRA 'soft trace' which 100% would have revealed a banking address.  They'd have found you.  And doing a soft trace before litigation to check address data is mandatory under BOTH Codes of Practice, and is set out clearly by the DLUHC in the statutory Code in Feb 2022.

They breached the Code of Practice.

When editing the NEWBIES FAQS thread only yesterday, I updated the example links to 'successful CCJ set aside cases' to include one won very well yesterday, with a great skeleton argument.

Awesome, thankyou this is making a lot more sense now. I understand the fustration for yourself to have to explain these concepts over and over but people like me are so grateful you do! As coming into this situation with no knowledge and having to use the legal system to fight is very confusing and intimidating. Its no wonder so many people just give up and pay. And its so infuriating how these companies can legally carry out such immoral actions, hiding behind legit websites and businesses that just exploit, exploit, exploit. Can you imagine what its like to work at these places?

My claim has been passed on to Empira, on their website they claim to be "socially conscious" "acting with fairness" and "forward thinking". What a !!!!!! show!

Anyway, you, and the other frequent posters on here are a resource the community desperately needs. Its amazing you dedicate so much time here, rather then just getting mad and complaining and doing nothing. Thankyou again for all your hard work.

Coupon-mad

Empira are Gladstones.  Next desk...

1505grandad

"And its so infuriating how these companies can legally carry out such immoral actions, hiding behind legit websites and businesses that just exploit, exploit, exploit."

Not forgetting it all mostly starts with the DVLA who boast  -  "At DVLA we have tough safeguards in place to protect the privacy of information held on our records."   -  yet they have known about these scams for years and still give out motorists data willy-nilly. 

TerryDown

OK i have re-drafted my Witness Statement after feedback from another thread. This time I drew from a much more recent example that is similar to my own found here:

https://forums.moneysavingexpert.com/discussion/6423700/suprise-ccj-civil-enforcement-ltd/p1

I understand the Witness statement is about getting a set aside, however I would like to dismiss the claim and i think i have grounds to do this. and so i have included details of my defence. But I am unsure of what I'm doing so please tell me if this is appropriate or not. However I never actually used the car park and instead parked 500m down the road, so i feel my defense is pretty good and worth including?

I also qualify for income support, and so can get the court fee paid. Is it still worth me asking the claiment to pay for the court fees? Wont this make them more likely to fight me? I think i'd rather take the income support

Here is the updated witness statement, do your worst, and thankyou!

WITNESS STATEMENT OF DEFENDANT

1. I am XXXX. and I am the Defendant in this matter.

2. This is my supporting statement to my application dated XX September 2023 requesting to:

a. Set aside the default judgment dated the XX of May 2023 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. Order for the Claimant to pay the Defendant £275 as reimbursement for the set aside fee.

DEFAULT JUDGMENT

3. I was the registered keeper of the vehicle at the time of the alleged event.

4. I understand that the Claimant obtained a Default Judgment against me as the Defendant on XX May 2023. I am aware that the Claimant is the dept collection agency Empira and that the assumed claim is in respect to an unpaid Parking Charge Notice from from Local Parking Security on the XX May 2022. This was then sold to Gladstones Solicitors Who issued a PCN on the XX/XX/2023, this eventually was passed onto Empira to become the CCJ.

5. The claim form was not served at my current address, and I was therefore unaware of the Default County Court Judgment against me until I received a text message from Empira dated XX August 2023. Checking my credit report confirmed details of the CCJ.

6. I was not staying at a permanent address at the time this was served. This was because I was out of the country for over 8 months on a bicycle tour, which I returned from on the XX of May 2023.

7. The address on the Judgement is Address A. I moved from this address on the XX/XX/19 to Address B, in support of this I can provide my tenancy (Evidence A). I also updated my driving licence details to this address (Evidence . At the time of writing I am unsure whether I updated the V5C, but have sent a SAR to the DVLA to determine this. (Evidence C)

8. Since beginning my tenancy at address B, I have moved addresses on a further 3 occasions. In September 2022 I left the country to begin a bike tour, 4 months later returning for a short while over Christmas, where I registered my new address with my bank (Evidence E). I then continued my tour in February 2022 and returned home on the XX of May 2023.

10. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

SEQUENCE OF RECENT EVENTS

11. I first discovered there was a default County Court Judgment against me when I received a text message from Empira dated XX August 2023.

12. On the XX August 2023, i contacted the County Court Business Centre to obtain relevant information relating to this default judgment. Here I confirmed it was linked to my name. And learned the details of the alleged parking violation. This is when I began to draft this witness statement, and a further defence statement as I believe this parking violation is invalid, and I intend to go on to defend the claim.

12. On XX February 2023 I submitted my case in order to set-aside this judgment and fairly present my case.

13. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details at the time of the claim. I was therefore denied the opportunity to defend the claim.

14. On that basis, I believe the Claimant has not adhered to Civil Procedure Rules (CPR) 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The Claimant did not take reasonable steps to ascertain the address of my current residence despite having over 12 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

15. 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.

16. Under Clause 24.1 C of the BPA Approved Operator Scheme Code of Practice Version 8 (January 2020), “Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the contact details for the person you are writing to are correct.” The Claimant failed to take reasonable endeavours to ascertain my correct current address prior to issuing proceedings and is therefore in breach of the Code of Practice.

17. The Defendant was 'there to be found' for the sake of a 29 pence bulk Experian trace or similar very inexpensive and immediate credit reference agency address check. I would then have been notified of this judgment and could have taken action to prevent it.

18. Given that more than 4 months has 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. The Defendant has no details of this claim, therefore, if the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct address for service for this Defendant, which is Address G

19. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

20. Furthermore, former Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016.

The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses." The Minister added, "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”

21. In the alternative, CPR 13.3 applies and there are very good reasons to set aside this exaggerated claim, which includes a disproportionate and indeed, false 'debt recovery' sum. In fact, no debt recovery occurred nor cost the Claimant any money whatsoever, in addition to £100 parking charge. The Government has described the false fixed 'fee' of £70 as 'designed to extort money from motorists' in the new statutory Code of Practice last February and has banned it. The Defendant has good prospects of defending a claim, if served with one, but has seen no evidence, basis nor particulars of claim and the Claimant should be required to file afresh, if they believe they have a cause of action.

22. Considering the above, I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside, furthermore I will go on to defend the claim as I never actually used the car park where I have alleged to have parked. And I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful.

Order dismissing the claim

 23 I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. My argument is as follows

24 Firstly at the time of the alleged incident, I drove into the car park, and, realizing the high cost, removed myself from the car park within 15 minutes. The IPC Code states: 'Drivers should be allowed sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site'.

25 I opted to drive out of the car park (a fenced off piece of land, through a gate and down the road approximately 570 metres - as measured on google earth). This road is called XXXX Rd. Along this road there was no signage whatsoever, and no road markings (red/yellow lines). Clearly the parking contract applied to the car park (Where there were clear boundaries) however this was a public road. I found a suitable layby which would allow ample room for cars to pass. This is where I parked. (I can show this space on Google Street View if required).

26 Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that must be used to form contracts. It says: ''It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge.''

27 POFA2012, schedule 4 Paragraph 7 states the notice must “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”. I assert that since I never parked inside the “relevant land”, any notice given is void as it relates to a piece of land at which I have not parked.

Statement of Truth

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.

Signed ________

Date __________

DRAFT ORDER

CLAIM No: XXX

BETWEEN:

CIVIL ENFORCEMENT LIMITED (Claimant)

-- and --

XXX (Defendant)

Le_Kirk

I understand that the Claimant obtained a Default Judgment against me as the Defendant on XX May 2023. I am aware that the Claimant is the dept debt collection agency Empira and that the assumed claim is in respect to an unpaid Parking Charge Notice from from Local Parking Security on the XX May 2022. This was then sold to Gladstones Solicitors Who issued a PCN on the XX/XX/2023, this eventually was passed onto Empira to become the CCJ.

It is a debt collection agency (DCA)!  Are you sure about who was the claimant and who issued the N1 court claim form?  A CCJ is issued by a court/judge, not a DCA.  Also are you sure it was "sold on"?