Need advice with a CCJ letter

gdexr

nopcns said:

Without trawling back through the thread, if the OP has not admitted to being the driver, point 9(2) in the claimants amended pot 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.

Thanks for the input, I'll now write down what I received from court as I had it posted in paper. I haven't admitted to being the driver.

Page 1

To the Defendant

This confirms, for the purpose of the Register of Judgments, Orders and Fines Regulations 2005, that:

The judgment giving rise to the registration has been set aside

A notification will be issued to the Keeper of the Register of Judgments, Orders and Fines for the entry to be

REMOVED (because judgment was set aside)

This judgment was registered by the Civil National Business Centre and the case was transferred to this court.

Page 2

On hearing Mr XXXX as legal representative for the Claimant and the Defendant who represents himself and
on considering the court file

On the Claimant having served the Claim Form at the Defendant's last known address but the Defendant no

longer living at that address

On the Claimant not opposing the application to set aside the default judgment and on the Court being satisfied

that there is good reason to set aside the judgment under CPR 13.3(1)(b)


That's what I've got in the letter and I'm struggling to find any clues on what to base my defence on. I'll keep reading similar threads and I hope to find something similar so I can get some ideas.

nopcns

But you say that the claimant was ordered to submit amended PoC. There should be more to the judgment if the set aside has been allowed under CPR 13.3.

gdexr

nopcns said:

But you say that the claimant was ordered to submit amended PoC. There should be more to the judgment if the set aside has been allowed under CPR 13.3.

Ah, I forgot to add the actual order, so it's the all the text from above and also this:

IT IS ORDERED THAT
1. The default judgment dated 21 September 2023 is set aside.
2. The Claimant to file and serve Particulars of Claim by 4pm on 9 April 2024.
3. The Defendant to file and serve a Defence by 4pm on 23 April 2024.
4. No order as to costs.

That's all I got.

nopcns

OK. You have to wait for the amended PoC from the claimant which you must sent no later than 4pm 9th April. That means you should have received them yesterday at the latest. Have you received them?

If you haven't received them they have breached the order. You should highlight that fact. You must submit your defence no later than 4pm Tuesday 23rd April. Leave your defence to the last day, just in case they do send the amended PoC (assuming they haven't sent them yet) and try to get out of the breach. You will be able to rebut their claim and highlight the fact that they have breached the order.

gdexr

nopcns said:

OK. You have to wait for the amended PoC from the claimant which you must sent no later than 4pm 9th April. That means you should have received them yesterday at the latest. Have you received them?

If you haven't received them they have breached the order. You should highlight that fact. You must submit your defence no later than 4pm Tuesday 23rd April. Leave your defence to the last day, just in case they do send the amended PoC (assuming they haven't sent them yet) and try to get out of the breach. You will be able to rebut their claim and highlight the fact that they have breached the order.

Yes they already did, this is what the claimant sent to me as the "Amended Particulars of Claim" attached to an email.

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 are 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

5. 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”.

6. 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”.

7. 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.

8. 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.

10. 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.

11. 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

14. 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

15. 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.

Mikeh2001

gdexr said:

nopcns said:

OK. You have to wait for the amended PoC from the claimant which you must sent no later than 4pm 9th April. That means you should have received them yesterday at the latest. Have you received them?

If you haven't received them they have breached the order. You should highlight that fact. You must submit your defence no later than 4pm Tuesday 23rd April. Leave your defence to the last day, just in case they do send the amended PoC (assuming they haven't sent them yet) and try to get out of the breach. You will be able to rebut their claim and highlight the fact that they have breached the order.

Yes they already did, this is what the claimant sent to me as the "Amended Particulars of Claim" attached to an email.

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 are 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

5. 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”.

6. 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”.

7. 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.

8. 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.

10. 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.

11. 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

14. 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

15. 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.

Pretty standard stuff.  It just means that you cant use the "poorly pleased POC" in your defence (otherwise know around here as "chan")

Although it's interested how point 9 says "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..."

1) the driver? Who are they? 
2) payment? The POC clear says you can't park for more than two hours, period.  Not clear what payment could have been made by the "driver", whoever they are.

Template defence has everything you need! 
.

nopcns

Have you identified as the driver at any stage in this process? If not (hopefully), they are screwed under their point #11. Your amended defence must include all the judgments that point out that it is not allowed to be presumptuous or to infer that the keeper must also be the driver. Only the driver is liable and as they are not relying on PoFA to transfer liability from the driver to the keeper, they can't.

You should highlight in your defence that it is embarrassing that a serial litigator should know that there can be no transfer of liability from the driver to the keeper unless the requirements as prescribed in PoFA 2012 are strictly met. Failing to nominate who was driving is not an admission that the keeper was the driver.

VCS v Edward [2023] H0KF6C9C is one such appeal judgment which is persuasive.

gdexr

Mikeh2001 said:

Pretty standard stuff.  It just means that you cant use the "poorly pleased POC" in your defence (otherwise know around here as "chan")

Although it's interested how point 9 says "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..."

1) the driver? Who are they? 
2) payment? The POC clear says you can't park for more than two hours, period.  Not clear what payment could have been made by the "driver", whoever they are.

Template defence has everything you need!

Thank you very much for the reply!

RE point 9:

1. I cannot recall who the driver was back then, but if I understand correctly, I need to provide a 'reason' to assert that I, as the defendant, do not know who was driving. (as shown in para 2 from the template)

2. I initially read this as "the driver failed to make the payment" as the PCN payment but now reading this again it doesn't make sense because they later say "The Claimant applied to the DVLA for details of the Registered Keeper of the Vehicle in order to issue the Charge Notice".

And yes, I will not add the para 2 from the template mentioning The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action"

Not_A_Hope

In para 4 the claimant states the breach is for an overstay suggesting a duration of 2 hours 31 mins against the alleged max of 2 hours on the sign. If you have evidence the signs were in a shocking state you can argue the driver did not see the term or enter into any such contract.

The particulars remain poor because in para 9 they go on to state the Driver failed to make payment…… So which of their terms are they actually accusing you of breaching. Clear as mud. If I was the judge having given a professional litigator the opportunity to correct their POC I would throw it out.

You can use state and this ambiguity early in your defence.

gdexr

I added 3 paragraphs about my view on the case and the amended particulars of claim:

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that any conduct by the driver was in breach of any term. Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

2. Although unable to provide an exact justification, the defendant suspects that the car could have been there for a car service at Halfords services, a retail establishment situated within the park. Additionally, the defendant suggests that the vehicle may also have been present for shopping purposes at Lidl, another retail store located within "Parkway Retail Park." While lacking precise confirmation, these potential activities offer reasonable grounds for the vehicle's presence on the specified date.

3. The defendant points out that, according to online map services such as Google Maps, the parking signs were in a very poor state at the time in question (May 2021). This condition could have led the driver to believe that the parking area was not adequately maintained by the claimant to ensure the visibility of any contractual terms (See Exhibit 01)

4. The defendant highlights that there remains confusion regarding the particulars of the claim. While it states that the driver, whoever they may be, cannot park for more than two hours, paragraph 9 of the Amended Particulars of Claim contradicts this by indicating that the driver failed to make a payment. This inconsistency contributes to the lack of clarity surrounding the case.

Paragraphs 5-31 are all copied from the template. Regarding the para 3, I'm not sure whethere I should put May 2021 or just completely change the wording to "the parking signs were in a very poor state at the year in question", the exhibit itself looks like this: