Witness Statement set aside CCJ First Draft

TerryDown

Hi Everyone

I've set out my witness statement below. I have used the template and adapted it to my situation, however there are some clauses I am unsure of. I'm confused about a lot of this to be honest so I expect there are lots of mistakes here. But if you guys can help me catch them I would be eternally gratefull!

In particular please pay closer attention to 2.3, 2.4, 2.5, 3.2, 3.3, 3.4, 3.5. 3.6 - i removed wording around never receiving documentation as I had received a windscreen notice and ignored it. however I think i have a strong case as I never actually parked in the car park!

Witness Statement:

1. I am XX and am the defendant in this matter. This is my supporting statement to my application dated XX requesting to

a. Set aside the default judgment dated XX as it was defectively served using an old address.

b. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

c. Order for the original claim to be dismissed.

DEFAULT JUDGMENT

2.1 I understand that the claiment obtained a default judgement against me as the defendant on XX (Which, incidentally, is my birthday). However, this default judgment has not been served to my current address. Therefore, I was not aware of the County Court Judgment until I received a text message from Empira on the XX. informing me that if I do not contact them immediately my goods will be removed and sold at auction.

2.2 On learning of the County Court Judgement I immediately contacted the CNBC to understand the details. I was told a PCN was issued at XX by XX on the XX. This was passed on to XX who issued a claim on the XX.

2.3 I understand the judgment was served to an OLD ADDRESS (XX). I began my tenancy here on the XX, I left this address on the XX and moved into XX. In support of this I can provide my tenancy agreement for the new address (XX). At this time I updated my driving licence details to the new address (Evidence A) I am unsure as to whether my V5C was updated and have now sold the car, therefore I have requested a SAR from the DVLA, and am waiting for a response at the time of writing (Evidence

2.4 At the time of the alleged incident I received a windscreen penalty notice. There is no excuse for not responding at the appropriate time and I take full responsibility for this. However this was the first and final documentation I had on the matter. According to paragraph 6 of POFA2012 Shedule 4 The creditor “(a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or (b) has given a notice to keeper in accordance with paragraph 9.”.

2.5 The creditor failed to do this, a letter would have prompted me to respond to this allegation, however no such letter arrived. During this time I was preparing a 6 month cycling tour across Europe, preparing to be intentionally homeless and therefore selling most personal possessions, as such I quickly forgot about the penalty charge. The claimant never received a response from me, and the address they chose to use had not been updated for 4 years, so had a reason to suspect their contact details were incorrect, had they completed a soft trace they would have found more up to date information. and tracked me down (as Empira were later able to do)

2.6 I suggest the claimant did not make reasonable enquiries as to my current address or contact details before pursuing the court order especially considering they had good reason to believe they did not hold my current contact details. As stated in the Civil Procedure Rules CPR 6.9(3) where a claimant has reason to believe that the address of the defendant referred is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business. Furthermore, considering they received no response from me to their correspondence I believe the Claimant had reasonable cause to question whether they were using an accurate address. 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.

2.7 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details. According to publicly available information, my circumstances are far from being unique. The Claimant appears to have consistently failed to reasonably pursue the claim, as has been referred to as the practice of ‘Credit Clamping’, which several members of the Government have strongly condemned. Prime Minister Theresa May has pledged to investigate the ‘abuse’ of the CCJ system, while The Rt Hon Sir Oliver Heald QC MP has been quoted as saying on 23rd December 2016: "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. 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." and "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."

2.8 Furthermore researching this particular car park reveals many others in a similar situation, scrolling through reviews reveals over 20 others receiving unfair parking charges at this site on parkopedia

2.9 On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

2.10 Considering the above I as the Defendant was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

3.0 Order dismissing the claim

3.1 I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I have two main arguments for this.

3.2 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. 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'.

3.3 I opted to drive out of the car park, and down the road at least 570 metres down the road (as measured on google earth). This road is called XX. 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 signs and the whole area was fenced of with a gate, creating a clear boundary) however this was a public road. I found a suitable place 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).

3.4 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.''

3.5 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.

3.6 Secondly It appears that the Claimant has obtained details of the vehicle for which I am the Registered Keeper and used those details to make a claim for a ‘Parking Charge Notice’. Any Notice to Keeper served by the Claimant must comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012.

3.7 Research I have undertaken states that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue. If the Parking Charge Notice in this matter did not include ‘Protection of Freedoms Act 2012’ wording, the Claimant cannot hold myself as the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

3.8. If the Claimant has obtained details of the vehicle for which I am the Registered Keeper, and used those details to make a claim for a Parking Charge Notice, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

3.9. I submit that this is not a penalty charge notice but a private one based on contract law and therefore the Claimant must:

a) show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant

b) set out the facts on which it is asserted that the claimant has a cause of action against this defendant, and

c) identify the 'relevant obligation' of the defendant to pay parking charges and the 'relevant land' on which the parking is said to have occurred

d) state whether the claim is in relation to a 'relevant contract' or in respect of an alleged trespass or other tort (as per the POFA 2012 Schedule 4)

e) disclose full particulars and a contract, in order to evidence a claim in law

f) evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a brazen attempt at triple 'recovery' reaching over £290 despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed).

3.10. On this basis I believe that the Claimant has not provided any reasonable cause of action and absent the above being produced in short order, I ask the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs for attending, namely the £255 Court fee in bringing this set aside case, despite not being shown to be liable for any parking charge at all.

3.11 If required to defend at a further hearing, I will require all copies of paperwork, letters and other documentation including pictures of all signage from the Claimant in order to make informed decisions and statements in a comprehensive defence as keeper of a vehicle.

Statement of Truth:

I believe that the facts stated in this Witness Statement are true.
Full name: XXXXXXXXXXX
Signed: ______________________

Evidence enclosed:
A: Proof of start of new tenancy
B: FOI Request to PPC

B789

TerryDown said:

Hi Everyone

I've set out my witness statement below. I have used the template and adapted it to my situation, however there are some clauses I am unsure of. I'm confused about a lot of this to be honest so I expect there are lots of mistakes here. But if you guys can help me catch them I would be eternally gratefull!

In particular please pay closer attention to 2.3, 2.4, 2.5, 3.2, 3.3, 3.4, 3.5. 3.6 - i removed wording around never receiving documentation as I had received a windscreen notice and ignored it. however I think i have a strong case as I never actually parked in the car park!

Witness Statement:

1. I am XX and am the defendant in this matter. This is my supporting statement to my application dated XX requesting to

a. Set aside the default judgment dated XX as it was defectively served using an old address.

b. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

c. Order for the original claim to be dismissed.

DEFAULT JUDGMENT

2.1 I understand that the claiment obtained a default judgement against me as the defendant on XX (Which, incidentally, is my birthday). However, this default judgment has not been served to my current address. Therefore, I was not aware of the County Court Judgment until I received a text message from Empira on the XX. informing me that if I do not contact them immediately my goods will be removed and sold at auction.

2.2 On learning of the County Court Judgement I immediately contacted the CNBC to understand the details. I was told a PCN was issued at XX by XX on the XX. This was passed on to XX who issued a claim on the XX.

2.3 I understand the judgment was served to an OLD ADDRESS (XX). I began my tenancy here on the XX, I left this address on the XX and moved into XX. In support of this I can provide my tenancy agreement for the new address (XX). At this time I updated my driving licence details to the new address (Evidence A) I am unsure as to whether my V5C was updated and have now sold the car, therefore I have requested a SAR from the DVLA, and am waiting for a response at the time of writing (Evidence

2.4 At the time of the alleged incident I received a windscreen penalty notice. There is no excuse for not responding at the appropriate time and I take full responsibility for this. However this was the first and final documentation I had on the matter. According to paragraph 6 of POFA2012 Shedule 4 The creditor “(a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or (b) has given a notice to keeper in accordance with paragraph 9.”.

2.5 The creditor failed to do this, a letter would have prompted me to respond to this allegation, however no such letter arrived. During this time I was preparing a 6 month cycling tour across Europe, preparing to be intentionally homeless and therefore selling most personal possessions, as such I quickly forgot about the penalty charge. The claimant never received a response from me, and the address they chose to use had not been updated for 4 years, so had a reason to suspect their contact details were incorrect, had they completed a soft trace they would have found more up to date information. and tracked me down (as Empira were later able to do)

2.6 I suggest the claimant did not make reasonable enquiries as to my current address or contact details before pursuing the court order especially considering they had good reason to believe they did not hold my current contact details. As stated in the Civil Procedure Rules CPR 6.9(3) where a claimant has reason to believe that the address of the defendant referred is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business. Furthermore, considering they received no response from me to their correspondence I believe the Claimant had reasonable cause to question whether they were using an accurate address. 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.

2.7 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details. According to publicly available information, my circumstances are far from being unique. The Claimant appears to have consistently failed to reasonably pursue the claim, as has been referred to as the practice of ‘Credit Clamping’, which several members of the Government have strongly condemned. Prime Minister Theresa May has pledged to investigate the ‘abuse’ of the CCJ system, while The Rt Hon Sir Oliver Heald QC MP has been quoted as saying on 23rd December 2016: "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. 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." and "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."

2.8 Furthermore researching this particular car park reveals many others in a similar situation, scrolling through reviews reveals over 20 others receiving unfair parking charges at this site on parkopedia

2.9 On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

2.10 Considering the above I as the Defendant was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

3.0 Order dismissing the claim

3.1 I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I have two main arguments for this.

3.2 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. 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'.

3.3 I opted to drive out of the car park, and down the road at least 570 metres down the road (as measured on google earth). This road is called XX. 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 signs and the whole area was fenced of with a gate, creating a clear boundary) however this was a public road. I found a suitable place 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).

3.4 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.''

3.5 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.

3.6 Secondly It appears that the Claimant has obtained details of the vehicle for which I am the Registered Keeper and used those details to make a claim for a ‘Parking Charge Notice’. Any Notice to Keeper served by the Claimant must comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012.

3.7 Research I have undertaken states that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue. If the Parking Charge Notice in this matter did not include ‘Protection of Freedoms Act 2012’ wording, the Claimant cannot hold myself as the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

3.8. If the Claimant has obtained details of the vehicle for which I am the Registered Keeper, and used those details to make a claim for a Parking Charge Notice, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

3.9. I submit that this is not a penalty charge notice but a private one based on contract law and therefore the Claimant must:

a) show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant

b) set out the facts on which it is asserted that the claimant has a cause of action against this defendant, and

c) identify the 'relevant obligation' of the defendant to pay parking charges and the 'relevant land' on which the parking is said to have occurred

d) state whether the claim is in relation to a 'relevant contract' or in respect of an alleged trespass or other tort (as per the POFA 2012 Schedule 4)

e) disclose full particulars and a contract, in order to evidence a claim in law

f) evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a brazen attempt at triple 'recovery' reaching over £290 despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed).

3.10. On this basis I believe that the Claimant has not provided any reasonable cause of action and absent the above being produced in short order, I ask the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs for attending, namely the £255 Court fee in bringing this set aside case, despite not being shown to be liable for any parking charge at all.

3.11 If required to defend at a further hearing, I will require all copies of paperwork, letters and other documentation including pictures of all signage from the Claimant in order to make informed decisions and statements in a comprehensive defence as keeper of a vehicle.

Statement of Truth:

I believe that the facts stated in this Witness Statement are true.
Full name: XXXXXXXXXXX
Signed: ______________________

Evidence enclosed:
A: Proof of start of new tenancy
B: FOI Request to PPC

A lot of correction/editing is required in there. I wouldn't use the "(my birthday)" bit in there. It is frivolous and this is a serious matter.

The fee is £275, not £255. You haven't stated which CPR apply to your application, 13.2 and/or 13.3. You could search for other set aside WS which refer to 13.2 (mandatory set aside) with a fall back on 13.3 (discretionary set a side). Have a read of the CPRs here: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

The "default judgment was not served to your correct address" is wrong. The "claim form" was not served to your current address.

"I began my tenancy here on the XX, I left this address on the XX and moved into XX. In support of this I can provide my tenancy agreement for the new address (XX)." State the address you are referring to, not just "here".

"In support of this I can provide my tenancy agreement for the new address (XX)" No. You have to provide the evidence and reference it. You don't offer to provide it after the hearing. You must have it available and entered as evidence in your WS.

"At the time of the alleged incident I received a windscreen penalty notice. There is no excuse for not responding at the appropriate time and I take full responsibility for this. However this was the first and final documentation I had on the matter. According to paragraph 6 of POFA2012 Shedule 4 The creditor “(a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or (b) has given a notice to keeper in accordance with paragraph 9.”."

You've identified yourself to be the driver with the first part of the above paragraph so what are you wittering on about PoFA for? Also, you have shot yourself in both feet and hands with the admittance that you deliberately failed to respond to the NtD and expect to lose on that point alone. You couldn't be bothered responding to the NtD where you could have ptovided your address.

In 2.5 you now sate that had the PPC sent you a letter you would have responded to the allegation but you have already stated that you knew about the allegation from the NtD which you deliberatly chose to ignore. You can't have your cake and eat it.

I haver now given up reading the rest as there are too many problems with your WS. Also, forget the sub-numbering. Just assigne a consecutive numberto each paragraph. And... that Statement of Truth is not correct. It looks as though you have copied from an old WS.

Coupon-mad

@TerryDown please let this duplicate thread die and please don't start any more new threads about this set aside.  This is not helping you or us. We have no context.

Please start again back on one of your 2 other threads, maybe this one:
https://forums.moneysavingexpert.com/discussion/6470183/do-i-have-an-adequate-defense-for-set-aside-without-conset#latest

Reply there only.  Throughout the whole case.

But please don't post that ancient out of date WS.  Only last week I edited the NEWBIES thread with links to perfect and recent examples.

I don't understand why no poster this week with a CCJ is using the latest exemplars.  

Did I leave an old link there?

DO NOT REPLY HERE PLEASE.

Coupon-mad

DUPLICATE THREAD - PLEASE IGNORE