Need advice with a CCJ letter

Coupon-mad

gdexr said:

I just spoke with CNBC and they said the following:

1. Email the form N244 and all paperwork to ccbc@justice.gov.uk
2. Call in the morning to Pay
3. You'll then get a letter with your court hearing arranged to a local court
4. Send the same paperwork to the local court via post (so they have physcial copies)

My only concern with "posting physical the paperworks" is the attached BPA Approved Operator Scheme Code of Practice document which is about 50 pages long but I guess I'll have to print it for them to have a read 🤷

No need to print the BPA CoP.  A URL will do.

gdexr

Hello again, hope everyone is alright!

I wan to drop a quick update on the case - my court hearing is finally happening next Monday and it'll be a short 30-minute online session. I just got an email from DCB Legal with their submission and draft order proposal today. They're basically saying that: 

1. they're happy to set aside the CCJ;
2. they want me to pay (file and serve a response?) the claim in 14 days;
3. they are not happy to cover the costs stated in my draft order.

This is all they sent me:

Submissions:

---

SUBMISSIONS REGARDING THE APPLICATION TO SET ASIDE THE JUDGMENT We highlight the following in respect of the Defendant’s Application: -

1. Court proceedings were correctly served at the Defendant’s last known address in accordance with CPR 6.9 and accordingly, service of the Claim Form was effective;

2. As a result of the Defendant’s failure to respond to the Claim Form, Judgment in default was granted and was sent to the same address that the Claim Form was sent to;

3. The Defendant has now provided evidence that they were not residing at the address that the Claim Form was served to, as such; they were unable to file a response to the same.

In view of the above, the Claimant does not oppose the Defendant’s Application to set aside the Judgment, and requests that an Order be made as per the proposed Draft Order.

COSTS

In the event that the Defendant also seeks to recover the costs of making the Application to set the Judgment aside, it is respectfully submitted that the Claimant has not acted unreasonably. A trace was conducted to ensure that the Claim Form was served to the Defendant’s last known address pursuant to CPR 6.9 (3) – the Claimant has therefore

followed the correct process and had no reason to believe that the Defendant would not have received the Claim Form.

Pursuant to CPR 27.14, the Defendant is not entitled to costs incurred where the matter has been allocated to the Small Claims Track. If the matter had proceeded, it is reasonable to assume that the Claim would have been allocated to the Small Claims Track, given the complexity and balance of the case.

We look forward to hearing from you further. Yours faithfully,

DCB Legal Ltd

---

And the draft order:

---

UPON considering the Defendant’s Application dated 27/11/2023;

AND UPON considering that, despite Court proceedings being correctly served to the Defendant’s last known address pursuant to CPR 6.9, the Defendant was not residing at the address the Claim Form was served to and therefore did not have the opportunity to file a response to the same;

AND UPON there being, in view of the above, some other good reason to set the Judgment aside pursuant to CPR 13.3;

It is hereby ordered as follows: -
1. The Judgment entered on 21/09/2023 be set aside;

2. The Defendant is to file and serve a response to the Claim within 14 days;

3. Should the Defendant fail to comply with paragraph 2, the Claimant has permission to enter default Judgment; and

4. There be no Order as to costs.

---

My draft order:

---

IT IS ORDERED THAT:
    
UPON considering the application of the Defendant to set aside the Judgment by default entered on 21 September 2023;

AND UPON reading the evidence in support of the application;

AND UPON the court taking note that the Claimant was not entitled to default judgment, having failed to serve on Defendant's usual residential address;

AND UPON the lack of compliant Particulars of Claim as per the recent persuasive case of CEL v Chan;

IT IS ORDERED:

1. The Judgment by default entered against the Defendant on 21 September 2023 is hereby set aside.
2. The claim should also be struck out as for want of compliant Particulars of Claim, in view of the recent persuasive appeal case of CEL v Chan; another generic parking claim where the Particulars of Claim were equally defective.
3. Costs of the application be paid by the Claimant to the Defendant in the sum of £275.

---

Let me know if you want some context as it's been a while since my last post here.

Have a great day!

Coupon-mad

Make sure the Judge knows YOU DO NOT ACCEPT their draft Order and this has not been settled by consent.  Judges skim read and some people have been caught out by a smiling Judge telling them 'it's your lucky day! The Claimant consented!'  Errrm no.

And make sure the Judge isn't persuaded that it is OK for a parking firm to just issue a claim to an old address without a 'soft' CRA address check. Costs 28 pence in bulk and checking the address again before litigation is mandatory in all of the various industry Codes of Practice.

As well as a requirement in the CPRs. 

The car's DVLA address is a red herring once a case reaches LBC stage and CANNOT be relied upon as an address for service if there is 'reason to believe' that the D may have moved.

gdexr

Coupon-mad said:

Make sure the Judge knows YOU DO NOT ACCEPT their draft Order and this has not been settled by consent.  Judges skim read and some people have been caught out by a smiling Judge telling them 'it's your lucky day! The Claimant consented!'  Errrm no.

And make sure the Judge isn't persuaded that it is OK for a parking firm to just issue a claim to an old address without a 'soft' CRA address check. Costs 28 pence in bulk and checking the address again before litigation is mandatory in all of the various industry Codes of Practice.

As well as a requirement in the CPRs. 

The car's DVLA address is a red herring once a case reaches LBC stage and CANNOT be relied upon as an address for service if there is 'reason to believe' that the D may have moved.

Yeah, that totally makes sense. I would emphasize on it as It's not my fault that the claim was sent to a wrong address and then submitted at the court without me knowing anything about it until basically receiving the "receipt" for it. Do I even need to bother replying to DCB Legal or writing to the court I don't accept the draft order, or should I just wait until the hearing?

What are the chances that the judge rejects my draft order though? I'm a bit nervous as I've never really been into a situation like this before and I don't know what to expect in terms of outcomes.

Coupon-mad

The Judge will probably draw up their own order.  Hopefully based on yours if you argue well that the fault lies with the C and it IS NOT OK to litigate with an old address.

gdexr

Just want to say that it all went horribly wrong, the judge ordered to set aside the CCJ but also ordered the claimant to amend their POC and ordered to me to file a defence. This is what the amended POC looks like and I'm now following the defence template to write my defence which will probably include some facts from my WS such as CEL v Chan. I found out from google maps that the parking signs were severly damaged in the year of the alleged incident. Do I stand a chance for defending this?

THE AMENDED POC:

These Amended Particulars of Claim are filed in accordance with the Court Order following the Hearing on 25/03/2024.

Parties

1. The Claimant is a Company that offers private car park management services to private Landowners; primarily to manage the way in which motorists are permitted to park whilst on their private Land. At all material times, the Claimant was accredited by the Accredited Trade Association (“ATA”) known as the British Parking Association (“BPA”). The BPA has a Code of Practice (“Code”) that its members ae expected to adhere to, or otherwise face potential sanctions. The Claimant operates in accordance with the Code.
   

2. At all material times, the Defendant was the Registered Keeper of Vehicle XXXXX. The Defendant is the recipient of a Parking Charge Notice (“Charge”) issued by the Claimant.
   

Landowner Authority

3. At all material times, the Claimant was contracted by the owner of the Land known as ‘Parkway Retail Park’ to manage parking on the Land and to issue Charges to Vehicles that fail to park in accordance with the Terms

Contract & Breach

4. The details of the Charge issued to the Defendant are as follows: -

Location: Parkway Retail Park

VRM: XXXXX

Issue Date:  22/10/2021

Reason for Issue: Overstay

1. The part of the Claimant’s authority to manage parking on the Land, and in accordance with their Legal obligations, the Claimant prominently displayed signs on the Land. Such signs stipulated the Terms and Conditions of parking on said Land. It is such signs which form the basis of the Contract, which the Defendant accepted by choosing to park on the Land. The signage contained the following term:-
   
   “2 hours maximum stay car park for Parkway Retail Park customers. No returning within 1.5 hours of stay”.
   

2. A further Term is included in the Contract which stipulates: -
   
   “If your vehicle remains on site and fails to comply with any of the terms and conditions stated below at any time, you agree to pay an:
   £85 Parking Charge”.
   

3. 
   It is the Claimant’s submission that in choosing to park on the Land in the manner described therein, the Defendant (Driver), accepted the Contract by way of conduct, the parking space being the consideration in the formulation of such contract.
   

4. 
   The Defendant remained on the Land for 2 hours and 31 minutes, thus breaching the Terms of the Contract. As such, a Charge was issued accordingly.

Defendant’s Liability

9. The Driver failed to make payment and in accordance with their capacity of being a member of the BPA, the Claimant applied to the DVLA for details of the Registered Keeper of the Vehicle in order to issue the Charge Notice. The Defendant’s name and serviceable address were returned to the Claimant and Charge Notices were issued to the Defendant accordingly.

1.  The Charge Notice afforded the Defendant the opportunity to pay, appeal or nominate a Driver (if it was not them). The Defendant failed to engage in any of the aforementioned options.
   

2. Following receipt of the Notices, the Defendant failed to nominate a Driver. As such, the Defendant is now pursued on the balance of probabilities that they were the Driver of the Vehicle in that, if they were not the Driver, they would have otherwise nominated.
   

Pre-Action Conduct

12. As a result of non-payment, the Claimant instructed Direct Collections Bailiffs Limited (“DCBL”) to send further letters to the Defendant to prompt payment. As the matter could not be resolved, the Claimant instructed my firm to send a ‘Letter of Claim’ to the Defendant.

13. The Claimant subsequently issued Court proceedings as a last resort to recover the monies.

Amount Claimed

1. The Claimant seeks the total sum of £259.08, broken down as follows: -
   

Charge for breach of Contract:  £85.00

Contractual Costs: £70.00

Interest: £19.08

Court Fee: £35

Legal Representative Fixed Costs: £50

 

1. The Contractual Costs are claimed pursuant to the Contract which states:-
   
   “Failure to make prompt payment may incur additional costs”.
    

16. Interest is claimed pursuant to section 69 of the County Courts Act 1984 at a standard rate of 8% per annum above base rate until Judgment or sooner payment, or for such period as the Court sees fit.

 

Coupon-mad

That's not horribly wrong!  That's good. Normal to get the CCJ set aside but the claim continues.  Did you miss the fact that happens in most of the CCJ set aside threads?  There are 5 linked in the NEWBIES thread for that reason; so you can see how they handled it.

KeithP

gdexr said:

I'm now following the defence template to write my defence which will probably include some facts from my WS such as CEL v Chan.

I don't think it is appropriate to include CEL v Chan in your Defence.
The revised particulars clearly state the reason for the Claim.

nopcns

Without trawling back through the thread, if the OP has not admitted to being the driver, point 9(2) in the claimants amended PoC will be their downfall:

Following receipt of the Notices, the Defendant failed to nominate a Driver. As such, the Defendant is now pursued on the balance of probabilities that they were the Driver of the Vehicle in that, if they were not the Driver, they would have otherwise nominated.

What exactly did the Judgment order from the CCJ set aside say? There is often a clue in that wording that will give the defendant a clearer line of rebuttal.

gdexr

Coupon-mad said:

That's not horribly wrong!  That's good. Normal to get the CCJ set aside but the claim continues.  Did you miss the fact that happens in most of the CCJ set aside threads?  There are 5 linked in the NEWBIES thread for that reason; so you can see how they handled it.

I was hoping to get the claim struck out during the first hearing but I didn't argue good enough which, I believe was due to lack of experience in the field of law. Anyway, yes, thank you very much for pointing that out @Coupon-mad I'm on it.

KeithP said:

gdexr said:

I'm now following the defence template to write my defence which will probably include some facts from my WS such as CEL v Chan.

I don't think it is appropriate to include CEL v Chan in your Defence.
The revised particulars clearly state the reason for the Claim.

You're right here @KeithP I was not sure about it either but I'll get rid of it now as they've added the parking terms.