CCJ Issued but 1 Month has Elapsed (Highview Parking & DBCLegal)

EngineerAmber

Here we go team here are my draft documents - hopefully another one will bite the dust soon. Any feedback would be greatly appreciated and thanks in advance! A

Here are my questions

Pls can you Clarify Dates?

• N244 - assume date of submission?
• Witness statement application date - assume date of submission?
• Judgment Date - assume what is on my credit file?
• Default Judgment Defence Date - Assume as per Judgment date?

Points 8 - Should I Notify DBCLegal and wait 1 week as per some other examples or submit straight away?

Points 12-16. I feel have a bit shaky ground here for my case. Could the parking company have easily found my address? I’m not sure it would come up on a search? Should I remove some of these points?

Point 17 - When does the more than 4 months apply? Form the PCN date or the Judgement date?

Draft N244

Name of court: Northampton CCBC

Claim no.: KXXXXXXX

Fee account no.: N/A

Help with Fees – Ref. no.: N/A

Warrant no.: N/A

Claimant’s name: Highview Parking Limited

Defendant’s name: XX

Date: /10/2023

1.      What is your name or, if you are a legal representative, the name of your firm? XX

2.      Are you a: Defendant

3.      What order are you asking the court to make and why? 
The Defendant seeks an order that the judgment dated xx/10/2023 be set aside pursuant to CPR 13.2 and CPR 13.3. The Defendant seeks the order to set aside because he was unaware of the proceedings as the Claimant served proceedings at an address not used by the Defendant since 2021. The Defendant only discovered the Judgment when he checked his online credit rating on 20th October 2023. The Defendant further seeks an order to be allowed to file a defence in the case.

4.      Have you attached a draft of the order you are applying for? Yes

5.      How do you want to have this application dealt with? at a hearing

6.      How long do you think the hearing will last? 1 hour

7.     Give details of any fixed trial date or period. Whats is this?

8.      What level of Judge does your hearing need? District Judge

9.      Who should be served with this application? Claimant

        a.      Please give the service address, (other than details of the claimant or defendant) of any party named in question 9. N/A

What information will you be relying on, in support of your application? the attached witness statement.

Witness Statement of the Defendant

1.    I am XXXXX, the defendant in this matter.
2.    This is my supporting statement to my application dated XX October 2023 requesting to

a.     Set aside the default judgment for claimant dated 29/08/23 on the grounds that the defendant has not been validly served as the Claim Form was sent to my former address.

b.     Strike out the claim, as per CEL v Chan (appeal) (Exhibit 1).

c.      Order for the Claimant to pay the Defendant the N244 fee of £275 in the event that the Allocating Judge does not make an immediate Order granting (a) and (b) without a hearing, due to the abusive Particulars of Claim and the Claimant's representatives' wholly unreasonable conduct, of negligence to carry out simple and proper checks to establish the correct address for service before filing the claim).

 

Default Judgment Defence

3.    I understand that the Claimant obtained a Default Judgment against me, the Defendant, on 20 October 2023. I am aware that the Claimant is Highview Parking Limited, and that the assumed claim is in respect of unpaid Parking Charge Notice (PCN) from the at Airport Retail Park CV3 4RP. I defend this charge for the reasons outlined below in paragraph 4.

 

Particulars of Claim (PoC)

4.    The claimant’s PoC (Exhibit 2) is a boilerplate template which does not outline what conduct led to the driver breaching the terms of parking. A recent persuasive appeal judgment 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 15 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” (Exhibit 1, Para 11). This matter is identical to the case of Civil Enforcement Limited v Chan and in light of the Judgment I request the Allocating Judge to strike out the claim using its powers pursuant to CPR 3.4 and award my costs in full, as happened in the aforementioned Chan appeal case (which, like this matter, also started with a N244 CCJ set aside application which was initially wrongly refused by the first learned Judge).

Order of Events

5.    I was the registered keeper of the vehicle at the time of the alleged offence on the 30 December 2019. The car was sold on the 09 April 2022 and the DVLA was informed of the new keeper.

6.    The claim form was not served at my current address, and I therefore was not aware of the Default Judgment until 20th October 2023 when checking my Equifax credit score regarding a court judgment as found in Exhibit 3

7.    The address on the claim is XXX Leamington. Whilst I still own this property, I moved to my current address at XXX London on the XX August 2022. In support of XXX being my current address this I can provide the following evidence: Signed Tenancy agreements’ for 2021, 2022 & 2023 (Exhibit 4, 5 & 6). Insurance cover with XXX as the primary address (Exhibit 7), Employment Contract XXX London (Exhibit 8) and regular use on TFL through September (Exhibit 9) when the claim was served.

8.    I would ask that my integrity and law-abiding intention be taken into consideration on the basis that;

a.     On the 20th October I discovered a CCJ was reported onto my credit file and identified the case number.

b.    On the 26th October I contacted the County Court Business Centre to obtain the relevant information relating to this default judgment; Exhibit 2.

c.     On the  27th October I contacted the Claimant’s legal representative (DBCLegal), to inform them about my intention to apply for the case to be set aside but I have not received any response from them

d.    On TBC + 1 week October 2023 I have submitted my case in order to set-aside this judgment and fairly present my case in an urgent and prompt manner.

 

9.     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.

10.  On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they failed to show due diligence in using an address that I no longer reside and had not confirmed receipt of any prior correspondence. The claimant did not take reasonable steps to ascertain the address of my current residence despite the alleged claim being in 2019. This has led to the claim being incorrectly served to an old address and an irregular judgment.

11.  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.

12. The claimant is obliged to carry out a soft search for a current address if they have not had any response to previous correspondence to the address on the V5C. I was “there to be found” for the sake of a soft search via an Experian trace or similar immediate and very inexpensive (reportedly 29p) credit reference agency address check. Had the claimant carried out their obligation I would have been notified of this claim and could have taken action to prevent the CCJ. 

13. The Claimants blatant failure to carry out a basic check to establish the correct address for service before filing a claim not only breaches the Court Procedure Rules but also the pre-action protocol for debt claims and the trade association’s Code of Practice to which the Claimant is a member of. 

14. Parking Control Management (UK) Ltd is a member of the Trade Association International Parking Community (IPC). The claimant has breached IPC’s CoP which requires addresses to be re-checked by a trace before submitting a claim form. Their code of practice states “22.1 Operators must take reasonable steps to ensure that the Motorist’s details are still correct if 12 months have passed from the Parking Event before issuing court proceedings". Exhibit 9. Therefore, the Claimant acted wholly unreasonably by negligently or deliberately disregarding all rules causing the claim to be improperly served.

15.  DVLA data is provided for a single (very limited) reason, so a parking operator can invite the keeper to name the driver or to pay, or to inform the keeper they will be liable if not, and about their right to appeal. It is well known that the data can be inaccurate.

16. The system is called 'KADOE' (Keeper On Date of Event) because it is a brief 'snapshot in time' to enable a parking operators to send a Notice. The information provided by the DVLA is only valid for that date. Operators are only allowed to ask the DVLA once, hence the parking industry’s code of practice require reasonable steps to be taken to check the address is correct and current before litigation. Even if a motorist later updated a VC5 logbook with a new address (or if the DVLA failed to note a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out. 

17. Given that more than nearly 4 years have passed (i.e., more than 4 months) from issuance of proceedings and the service of the claim was defective (i.e., it was never served) I submit that this particular claim is dead and that the period for service cannot be extended by this application process. 

18. Very limited details of the claim were provided by the Civil National Business Centre, 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 providing me with the information required under the pre-action protocol for debt claims, issued this time to me at the correct address for service, which is XXX.

19.  If a mandatory set a side is not granted under CPR13.2, then CPR 13.3 applies. A Google Street view search of the claimed postcode reveals no visible signage (Exhibit 10), the operator has not shown the keeper is the driver and the Claiment has offered no evidence of landowner authority to serve a penalty.  

20. The Claimant has added an additional sum of £146.18 to the £155 parking charge notice, for which “damages” is given as explanation. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold.

21. Whatever the allegation turns out to be, it must be common ground that the terms have been complied with or substantially complied with, and the Claimant will concede that no financial loss has arisen.  The charge imposed, in all the circumstances is a penalty (not saved by the ParkingEye v Beavis case, which is fully distinguished).  In addition to the fact that the sum claimed under purported 'contract' is disproportionately exaggerated, additionally the interest is inflated.

Initial PCN Charge	155
1330 Days at £0.02	26.6
Interest at 8%	45.15
Total	£     226.75

a.    The value of the CCJ does not match the interest rate & daily charge specified by the Claimant (Exhibit 2). The claimant declares and annual interest rate of 8% plus a daily charge of £0.02 which does not match £301.18 Claimed 

b.    Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs, this is clearly an abuse of judicial time and resources to gain eye watering profits.  I hope the Allocating Judge addresses this in their final judgment, at the very least to warn or sanction Highview Solicitors from applying extortionate fees and disallowed inflated rates to their conveyor belt of claims, as they see fit.

 

22. 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: xxxx

 Defendant’s Name: XXX

 Date Signed: 26 October 2023

Draft Order -  what court address to use?

UPON reading the Defendant's application dated 27 October 2023 and the annexed witness statement of XXXXX dated 27 October 2023

IT IS ORDERED that:

1.    The judgment for claimant dated 10 March 2023 is set aside on the grounds that the defendant has not been validly served as the Claim Form was sent to the Defendants former address. 

2.    The claimant to pay the Defendant's cost of this application £275.

3.    Order for original claim to be dismissed.

 

Coupon-mad

The Defendant further seeks an order to be allowed to file a defence in the case.

No you don't!

1505grandad

Error re claimant:-

"14. Parking Control Management (UK) Ltd is a member of the Trade Association International Parking Community (IPC). The claimant has breached IPC’s CoP which requires addresses to be re-checked by a trace before submitting a claim form. Their code of practice states “22.1 Operators must take reasonable steps to ensure that the Motorist’s details are still correct if 12 months have passed from the Parking Event before issuing court proceedings". Exhibit 9. Therefore, the Claimant acted wholly unreasonably by negligently or deliberately disregarding all rules causing the claim to be improperly served."

EngineerAmber

@Coupon-mad I've removed that statement, thanks.

@1505grandad great spot, I meant to change that. Highview is part of the BPA. Can I use the same statement for BPA?

Lastly - any thoughts on my other questions.

Bullet Point 8 - Should I Notify DBCLegal and wait 1 week as per some other examples or submit straight away?

Bullet Points 12-16. I feel have a bit shaky ground here for my case. Could the parking company have easily found my address? I’m not sure it would come up on a search? Should I remove some of these points?

Bullet Point 17 - When does the more than 4 months apply? Form the PCN date or the Judgement date?

Pls can you Clarify Dates?

• N244 - assume date of submission?
• Witness statement application date - assume date of submission?
• Judgment Date - assume what is on my credit file?
• Default Judgment Defence Date - Assume as per Judgment date?
  

Any other suggestions? Hopefully I can submit it all tomorrow. I've called up the CCBC and paid the £275 and got the forms ready.

Umkomaas

@1505grandad great spot, I meant to change that. Highview is part of the BPA. Can I use the same statement for BPA?

Have you checked if there's a similar BPA Code of Practice statement?

EngineerAmber

Umkomaas said:

@1505grandad great spot, I meant to change that. Highview is part of the BPA. Can I use the same statement for BPA?

Have you checked if there's a similar BPA Code of Practice statement?

I've had a look in their doc but it doesn't have a similar statement.

FYI https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf

KeithP

EngineerAmber said:

Umkomaas said:

@1505grandad great spot, I meant to change that. Highview is part of the BPA. Can I use the same statement for BPA?

Have you checked if there's a similar BPA Code of Practice statement?

I've had a look in their doc but it doesn't have a similar statement.

FYI https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf

What about paragraph 32.1b?

EngineerAmber

KeithP said:

EngineerAmber said:

Umkomaas said:

@1505grandad great spot, I meant to change that. Highview is part of the BPA. Can I use the same statement for BPA?

Have you checked if there's a similar BPA Code of Practice statement?

I've had a look in their doc but it doesn't have a similar statement.

FYI https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf

What about paragraph 32.1b?

That is only for Scotland but I think this will do.

24.1c 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.

KeithP

Yes, sorry about that useless steer.
It looks like you have found the right one.

EngineerAmber

it was a useful incorrect steer  I also removed point 12 as I cannot see that stated anywhere

Don't suppose you have any thoughts on these?

Bullet Point 8 - Should I do a pre-action protocol and Notify DBCLegal and wait 1 week to submit the N244 as per some other examples or submit it straight away?

Bullet Points 12-16. I feel have a bit shaky ground here for my case. Could the parking company have easily found my address? I’m not sure it would come up on a search? Should I remove some of these points?

Bullet Point 17 - When does the more than 4 months apply? Form the PCN date or the Judgement date?

Thanks