Need advice with a CCJ letter

Coupon-mad

Remove this and remove the photo exhibit*:

"Although unable to provide an exact justification,"

If this is an AMENDED defence, then you should take your original defence, strike through any parts you are now replacing (including the signature date) and add your new parts in bold/italics under the strike throughs.  Then having re-signed and dated the amended document - showing the altered parts, not deleting them - save it as a PDF and email it to the local court (NOT THE CNBC) and cc in the solicitors for the Claimants.

*(See NEWBIES thread; exhibits come later, with your witness statement before the hearing).

gdexr

Coupon-mad said:

Remove this and remove the photo exhibit*:

"Although unable to provide an exact justification,"

If this is an AMENDED defence, then you should take your original defence, strike through any parts you are now replacing (including the signature date) and add your new parts in bold/italics under the strike throughs.  Then having re-signed and dated the amended document - showing the altered parts, not deleting them - save it as a PDF and email it to the local court (NOT THE CNBC) and cc in the solicitors for the Claimants.

*(See NEWBIES thread; exhibits come later, with your witness statement before the hearing).

Sorry, I'm not sure I'm following. This isn't an amended defence, I haven't filed or sent a defence yet, this is my only defence that I'm now writing.

The steps in the process I'm following are those listed below, please correct me if I'm wrong:

1. CCJ set aside Witness Statement and heading (done)
2. Court Ordered Claimant to file an Amended Particulars of Claim (done)
3. Court Ordered Defendant to file a defence (in progress)
4. Claim defence hearing (to be scheduled)
   

The NEWBIES thread says "Defence is NOT your only job, nor the only paperwork!" and "The first 12 steps are set out in the Template Defence".

The Template defence steps list a few steps that I think are not relevant for my case, i.e:

"Acknowledging service of a claim" - as I've already got a Court Order for filing a defence.

"Send your signed & dated pdf (defence) as an email attachment to ClaimResponses.CNBC@justice.gov.uk" - do I still send to CNBC? I've got the impression that my case is now allocated with the County Court and not CNBC.

"Directions Questionnaire (N180) stage" - Should I complete this?

"Witness Statement & evidence stage." - What do I need to state in this witness statement and how does it differ from the defence?

Thanks!

Coupon-mad

Oh it's after a CCJ.  Sorry, missed that!  Thought the PPC had been ordered to supply full POC and you could then amend.

OK ignore the paragraph about 'strike throughs'.

I would do a separate WS right now attaching exhibits (plural) including those recommended in the a-f evidence suggestions in the NEWBIES thread.  There are also 5 good example WS bundles right there.

Send a defence AND WS bundle together. 

Mikeh2001

It's a real shame the judge didn't make an order for the claimant to pay costs.  Do you have any more insights on that point? Did they not accept that service to address you were last know at 12 months ago (with no response) is a breach of CPR and the PPC CoP?

gdexr

Mikeh2001 said:

It's a real shame the judge didn't make an order for the claimant to pay costs.  Do you have any more insights on that point? Did they not accept that service to address you were last know at 12 months ago (with no response) is a breach of CPR and the PPC CoP?

I honestly can't say exactly what happened, but the legal representatives of the claimant stated that I had not made any attempts to contact them before submitting anything to court (and paying for it all). The judge seemed to favor that response, which left me very confused as to why I should have contacted them in the first place. Then, of course, I didn't argue well enough about any of the CPRs—I must confess, I was very unprepared. In my head, I just wanted to get this CCJ set aside, which was obviously a done deal from the claimant's submitted draft order. I had a chance to fight better, but I didn't, hence dealing with all the consequences now. I'm a total newbie, and a foreigner who's never been in court before. I just wish these hearings were brought closer to the actual documentation phase so I could spit it all out when I feel most 'prepared', rather than allowing months for the 'rage' to calm down. Live and learn...

Mikeh2001

gdexr said:

Mikeh2001 said:

It's a real shame the judge didn't make an order for the claimant to pay costs.  Do you have any more insights on that point? Did they not accept that service to address you were last know at 12 months ago (with no response) is a breach of CPR and the PPC CoP?

I honestly can't say exactly what happened, but the legal representatives of the claimant stated that I had not made any attempts to contact them before submitting anything to court (and paying for it all). The judge seemed to favor that response, which left me very confused as to why I should have contacted them in the first place. Then, of course, I didn't argue well enough about any of the CPRs—I must confess, I was very unprepared. In my head, I just wanted to get this CCJ set aside, which was obviously a done deal from the claimant's submitted draft order. I had a chance to fight better, but I didn't, hence dealing with all the consequences now. I'm a total newbie, and a foreigner who's never been in court before. I just wish these hearings were brought closer to the actual documentation phase so I could spit it all out when I feel most 'prepared', rather than allowing months for the 'rage' to calm down. Live and learn...

Thanks for sharing.  For what it's worth I think your preparation and documents were very good, shame it didn't work on the day in terms of costs.

I expect  DCBL will discontinue just before they need to pay the hearing fee (much later in then process)

gdexr

Big thanks to all of you for helping me put together my witness statement! Pasting it here if anyone has any suggestions before submitting it with my Defence tomorrow. So thankful to you all again!

 
1. I am __________ and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2. In my statement, I shall refer to (Exhibits 01-07) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

FACTS AND SEQUENCE OF EVENTS

3. It is admitted that on the material dates, I was the registered keeper of the vehicle ______. It is unknown who the driver of the vehicle was on the dates of the claimed PCNs, given the PCNs date back to 2021.

4. Multiple individuals were authorised by me to use the vehicle at the times of the alleged contraventions via their own comprehensive insurance policies, which allowed them to use another private vehicle.

5. I do not recall receiving any pre-claim correspondence relating to the PCNs in question. I would like to point out to the court that the address at ______________ in the year 2021 had insecure external communal letterboxes, and there were often issues with mail delivery.

6. I changed residences multiple times after the initial PCN was issued. The claim form was also  never served at my current address by the Claimant.

7. I recognise the site “Parkway Retail Park” as a car park for two stores - Lidl and Halfords which I visited occasionally, however, some of the individuals who were authorised to use my vehicle also visited the same stores.

THE CLAIMANT’S BREACH OF MANDATED CODES OF PRACTISE AND RULING ACT


8. Through the Claimant’s disregard for the very guidelines and law set out to aid their business, the defendant believes that the company failed to meet the minimum obligations that would allow them to bring forward a parking charge and ultimately seek registered keeper liability.

9. The Claimant makes it clear in their amended Particulars of Claim (paragraph 11) that:- “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.”

10. The claimant has no right to assert that the defendant is liable based on reasonable assumption. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, “There is no reasonable presumption in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort” (2015). This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence:

11. This has been proven in an appeal in “Excel Parking Services Ltd v Anthony Smith” in Manchester County Court 8th June 2017, case number C0DP9C4E. His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but did not. Mr Smith's appeal was allowed and Excel's claim was dismissed (See Exhibit xx-01).

12. In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal case number H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan concluded at 35.2 and 35.3. "my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..." Mr Edward's appeal succeeded and the Claim was dismissed. (See Exhibit xx-02).

13. In the case of EXCEL PARKING SERVICES LIMITED ‐v‐MR LAMOUREUX Case No. C3DP56Q5 17th November 2016 where District Judge Skalskyj‐Reynolds stated: “There is no reasonable presumption in law that the registered keeper of a vehicle is the driver. It is trite law. I do not even need to rely on R (on the application of Duff v Secretary of State for Transport). Everybody knows that you cannot assume that the keeper is the driver which is why most parking companies, such as Parking Eye, always rely on the Protection of Freedoms Act 2012 and the notice should comply”. (See Exhibit xx-03)

14. The Claimant is well aware of pursuing the registered keeper without using the POFA having had the case of Vehicle Control Services Limited ‐v‐ Sarah Quayle case no. C1DP0H0J 4th May 2017 dismissed by Judge Gourley where he stated:- “This is not a case that proceeds under the Protection of Freedoms Act where there is the ability for a parking company to pursue the registered keeper for the parking charges. The Claimant says it does not seek to rely on the Protection of Freedoms Act [...] She says in her witness statement that she was not the driver, but even if I ignore everything that Miss Quayle has produced and look solely at the evidence that is produced by the Claimant, the Claimant comes nowhere close to satisfying me on a balance of probabilities that the defendant was the driver at the time. They may have had a claim had they complied with the requirements of the Protection of Freedoms Act, but they have not and they cannot pursue Miss Quayle on the basis of a breach of contract in the absence of any evidence at all that she was actually the driver at the time of the incurrence of the parking charge notice.” (See Exhibit xx-04)


INADEQUATE AND ILLEGIBLE SIGNAGE


15. In my Defence Statement I refer to the case ParkingEye vs Beavis [2015] which addresses the need for the signs to be clear which is in direct contrast to the signage the Claimant had at the time of the alleged offence.

16. In the year of 2021, there was a severely damaged parking sign at the entrance of the car park, potentially leading to believe that the claimant did not adequately maintain the parking area to ensure the visibility of contractual terms to drivers. (See Exhibit 05)

17. The Claimant’s claim states they are also claiming for contractual costs, however, in order for this to be valid it must be clearly stated on the Terms and Conditions signage along with the said value of the contractual costs. Therefore, as neither any mention of recovering contractual costs is stated, and more importantly, the value of such a contractual cost, the claim for contractual cost is invalid and cannot be claimed under the Consumer Rights Act 2015.

18. In conclusion, breaches with regard to signage on the property mean that a valid contract could not have been offered to any individual (including visually impaired) and therefore with respect to this claim, no contract was ever in place; thus rendering a breach impossible.

ABUSE OF PROCESS


19. The Claimant has added a sum disingenuously described as 'contractual/damages' or 'debt collection costs'. The added £70 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process. The transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands. (See Exhibit-06)

20. Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark- Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

21. The Judge at Salisbury correctly identified as an aside that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

22. ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.'' This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

23. This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (See exhibit 07), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

24. Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the Consumer Rights Act 2015. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at, but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

MY FIXED WITNESS COSTS - REF PD 27, 7.3(1) AND CPR 27.14

25. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay other party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

26. The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) “The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.”

Not_A_Hope

A few comments for your consideration.

I refer to my earlier post highlighting that their Particulars of Claim are ambiguous. You should highlight this early in your WS so a judge can consider throwing their Claim out.

Section title should be Mandated Codes of Practice (not Practise). I have no idea what Ruling Act refers to but in this section you do discuss POFA2012.

Para 13 - I do not even have to rely on R (on the …….) Is there some words missing?

 if you are claiming they have not complied with POFA2012 in their original notice to keeper you need to show the judge which elements do not comply. Have you posted a copy of their NTK for comment?

Para 16 - ‘potentially leading to believe’ might be better worded.

My Fixed Witness Costs - if I understand correctly you have paid for a N244 CCJ hearing fee. Although the previous judge gave no order as to costs you can ask for this additional costs to be considered at this hearing. You might also include a paragraph requesting the court consider a costs hearing instead should the claimant chose to discontinue

Coupon-mad

Para 18 doesn't make much sense to me.

Then I stopped reading at para 19 because it is out of date.  No-one uses Crosby any more because a mirror image case was appealed, so that decision was overturned.  Years ago.

The start of your WS (your facts, and use of court cases that show that parking firms can't hold keepers liable outwith the POFA 2012) are good but I don't understand why you haven't used one of the 5 recommended up to date WS examples linked in the NEWBIES thread WS section?

Mikeh2001

Also what are you putting in your defence? Assume you are using the template, it might be helpful to post your additions here (not the whole thing, just paragraph 3).