UKPC Set Aside Hearing

Umkomaas

Chesterfield1970 said:

HI Coupon-mad I am going to work on this later but can I ask if the CEL V Chan is relevant where the POC states that I was parked in a disabled space without clearly displaying a disabled badge, which i do have but I forgot to display it.

Who are the solicitors representing UKPC?  Can you show us the POC from the County Court Claim form (bottom l/h side)?

Chesterfield1970

QDR Solicitors Limited, Leamington Spa

Umkomaas

QDR do produce POC with better details. I don't think Chan will help.

Coupon-mad

I agree. Not Chan in this case...

...so what will be the basis of your defence if you get the CCJ set aside?

Do you have a Blue Badge which slipped out of sight?

Or are you not disabled, but was the marking of the bay so poor or unlit that you couldn't easily tell that it was an accessible bay?

Please show us your draft new WS and evidence, based on what the Court wants you to expand on.

Chesterfield1970

Yes I have a blue badge and assumed the fact I wasn’t served at my current address would be my defence?  

Coupon-mad

Not at all. That's not a defence.

You need to read the six example set aside threads I carefully link in the NEWBIES thread if you were unaware that there are two distinct stages and two hearings in a set aside case.

Your (later) defence against the PCN has zero to do with the lack of service of the claim.

Please show us your draft new WS and evidence, based on what the Court wants you to expand on.

Chesterfield1970

Hi sorry Ive been struggling for time.

I would appreciate it if you could take a look at the detail below to see if i'm on the right line with the witness statement or if ive picked up the incorrect template please?

WITNESS STATEMENT OF DEFENDANT

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

2.         This is my supporting statement to my application dated xx September 2023 requesting to:

a. Set aside the default judgment dated xx January 2023 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. Order for the Claimant to pay the Defendant £275 as reimbursement for the set aside fee.

Default Judgment

3.         I was the registered keeper of the vehicle at the time of the alleged offence.

4.         I understand that the Claimant obtained a Default Judgment against me as the Defendant on x January 2023. I am aware that the Claimant is UK Parking Control Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice.

5.          The claim form was served to a previous address, and I thus was not aware of the Default Judgment until I discovered by chance that a CCJ had been lodged onto my credit file on x July 2023.

6.         The address on the claim is xxxxxxxxxxxxxxx, I moved to my current address xxxxxxx in November 2020. In support of this please see my council tax bill and a copy of my driving licence dated in 2022.

7.         I never had any notification of the claim and only became aware in a phone call to the County Court Business Centre that the judgment related to a parking charge in xxxxxxxxxxxxxxxxxx on x November 2018.

10.       In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

Sequence of Recent Events

11.       On * July 2023 I discovered when checking my credit rating that a CCJ dated x January 2023 had been lodged onto my credit file.

12.       On x July 2023 I contacted the County Court Business Centre to obtain relevant information relating to this default judgment.

13.       On x July I contacted the x Law Centre for advice in this matter.  The next available appointment I was offered was a telephone appointment on x August.

14.       On the x August 2023, I received legal advice from xx who is a solicitor at the x Law Centre xxx.
16.       On x September 2023 when I was financially able to meet the costs, I submitted my case to set-aside this judgment and fairly present my case.

17.       I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

18.       On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The Claimant did not take reasonable steps to ascertain the address of my current residence despite having several years to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

19.       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.

20.       The Defendant was 'there to be found' for the sake of a 29pence bulk Experian trace or similar very inexpensive and immediate credit reference agency address check. I would then have been notified of this judgment and could have taken action to prevent it.  The failure to carry out proper checks to establish the right address for service before filing a claim not only breaches the CPRs but also the pre-action protocol for debt claims and the British Parking Association Code of Practice.  The Claimant acted wholly unreasonably by negligently or deliberately disregarding all rules and caused the claim to be improperly served.  They failed to serve it at all.

21.       Given that more than 10 months has passed from issue of proceedings and service of the claim was defective (i.e. it was never served) the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process.  The Defendant has no details of this claim, 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 furnishing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct address for service for this Defendant, which is xxxxxxxxxxxxxx

22.       According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

23.       Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016.

24.       The Right Honourable Sir Oliver Heald on 23 December 2016 "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." The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That 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.” Furtherance to points raised in 1.3 above.

25.       In the alternative, CPR 13.3 applies and there are very good reasons to set aside this exaggerated claim, which includes a disproportionate and indeed, false 'debt recovery' sum.  In fact, no debt recovery occurred nor cost the Claimant any money whatsoever, in addition to the £90 parking charge.  The Government has described the false fixed 'fee' of £70 as 'designed to extort money from motorists' in the new statutory Code of Practice this February, and has banned it.  The Defendant has good prospects of defending a claim, if served with one, but has seen no evidence, basis nor particulars of claim and the Claimant should be required to file afresh, if they believe they have a cause of action. 

26.       Considering the above I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £275 from the Claimant should this request be successful.

 

Draft Order:

 

UPON reading the defendant’s application dated x September 2023.

IT IS ORDERED that:

 
1. The default judgment dated x January 2023 be set aside. 

2. The claim struck out as the claim form having not been served within 4 months of issue.

3. The Claimant do pay the Defendants costs of this application of £275 on an indemnity basis.

 

Statement of Truth

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

Dated

KeithP

I think you should use capital letters in your paragraphs 20 and 21 when mentioning The Pre-Action Protocol for Debt Claims.
This is a document produced by His Majesty's Courts and Tribunals Service and it is an important document.

When mentioning The Right Honourable Sir Oliver Heald, do you want to consider mentioning his position in Government?
 At the time of making the statement cited in paragraph 24, he was Minister of State in the Ministry of Justice.

Coupon-mad

Have you not already sent a first WS?  Is this the first one? Just checking.

Chesterfield1970

This is where I’m getting confused, which doesn’t take a lot but yes I’ve sent a witness statement.  I thought I needed to expand that a little.  Unfortunately I’ve only just finished work so I will try and spend some time reviewing the templates and case examples later.  Thanks