UKPC Set Aside Hearing

KeithP

You have two paragraphs numbered 21.

Chesterfield1970

Hi Coupon-mad

We did contact DRPL in 2019 and they advised over the phone that if we sent in copies of the blue badge it would be cancelled but i dont have any proof of those conversations nor that these were sent in the post. I do have copies of a couple of emails we sent to a DRPL email address that is shown on their Linkedin profile but again i cannot prove they were received and i dont believe that we received any response.  One of the emails included photos of the badge but i again didnt think i should include them in my case because i couldnt prove they were received by DRPL.  I also thought this would harm the basis of the set aside because the Set Aside is based on the claim being sent to an incorrect address?

Coupon-mad

You don't have to prove it. But you should DEFINITELY say this in your defence.

Also please clarify:

You say DRPlus got in touch & you responded.

How long ago was that conversation / email?

Had they written that letter to the new address, or was all this before you moved?

Chesterfield1970

@Coupon-mad Unfortunately I am not sure what we received so thats why im weary of mentioning it but it must have been around May 2019 as I have copies of emails from May and June 2019.  The letter would have been written to my original address

Coupon-mad

But you should DEFINITELY say in your defence that you disputed it in 2019 and supplied a copy of your blue badge to their debt collector.  You were not ignoring it and thought it was cancelled.  So, your silence after that (to any recent letter 4 years later) in itself gives 'reason to believe' (yadda yadda, ... you know what the court is telling you they want you to say. They even use that phrase in the Order so it's easy to write what the court needs to hear).

Chesterfield1970

@Coupon-mad im finally getting it (well hopefully!)

Does this paragraph sound ok?

The Defendant disputed the parking notice in 2019 and supplied a copy of their blue badge to the Claimants debt collector.  The Claimant did not respond to the dispute and as such the Defendant believed that the parking notice had been cancelled.  Therefore the fact that the Defendant did not reply to any letter 4 years later, the Claimant had 'reason to believe' that the address to which the Claim Form was sent was one at which the Defendant no longer resided.

Thanks

Chesterfield1970

@Coupon-madI have had a go at the Supplementary Witness Statement, does this cover the points i need to cover or do i need to add or remove any part please?

I am xxx, I am the defendant in this matter and this is my statement in response to the Hearing Order dated 02/11/2023

1. The fact that the claimant has sat on this case for over 4 years before issuing proceedings means that the Defendant is unable, based on the POC, to recollect or understand with certainty, what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised, and it is admitted that the Defendant was the registered keeper.

2. The Defendant disputed the parking notice in 2019 and supplied a copy of their blue badge to the Claimants debt collector.  The Claimant did not respond to the dispute and as such the Defendant believed that the parking notice had been cancelled.  Therefore, the fact that the Defendant did not reply to any recent letter 4 years later, the Claimant had 'reason to believe' that the address to which the Claim Form was sent was one at which the Defendant no longer resided.

3. The Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address at which the Defendant no longer resides. The claimant did not take reasonable and inexpensive steps to ascertain the address of my current residence. This has led to the claim being incorrectly served to an old address and an irregular judgment. It is 6.9(3) that imposes a duty to take reasonable steps to search for the correct address. That the claim has gone unanswered is because of their failure to perform their obligations prior to issue.

4. Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance.  This is very common from bulk litigating parking firms after a CCJ is set aside, if the claim is not also dismissed in that hearing.   A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th 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'. The same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

5. 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 as per CPR 13.2, and I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful.

The facts stated above are true to the best of my belief and my account has been prepared based upon my own knowledge.

Coupon-mad

Head it up Supplementary Witness Statement

Wouldn't it be easier to simply say that this is your second witness statement in response to the Hearing Order. The learned Judge's requirements as set out in paragraphs 5 and 6 of that Order are covered as follows:

1.  Paragraph 5 requires a draft defence. This is appended as Exhibit x

2.  Paragraph 6 says:

Hearing Order para 6a  (quote it)
Answer it (if your first WS and exhibits you sent with the N244 already cover it, state which paragraphs/Exhibit refers).  If you have an extra exhibit to support what you are saying, and you didn't attach it with your first WS, add it now:

Proof of change of address, etc.  

Link to the relevant Code of Practice which sets out the fact that an address check is MANDATORY (unless you already did this).

Hearing Order para 6b  (quote it)
Answer it - as above

Hearing Order para 6c  (quote it)
Answer it - as above

Hearing Order para 6d  (quote it)
Answer it - as above

3.  Refer to CEL v Chan and attach the exhibit.

4.  Any other exhibits to support your defence (photos? Blue Badge? Permit? Email to DR Plus in 2019?) add them now because you won't get to write a third WS. This is all or nothing. 

Statement of truth.

Chesterfield1970

@Coupon-mad I have drafted the supplementary statement below but would appreciate your guidance on this please?

I am xxx, I am the defendant in this matter, and this is my second witness statement in response to the Hearing Order dated xxx.  The learned Judge’s requirements as set out in paragraphs 5 and 6 of that Order are covered as follows:

1. Paragraph 5 requires a draft defence. This is appended as Exhibit A

2.  Paragraph 6 says:

Hearing Order para 6a:  Any allegation that, at the time when this claim was issued, the Claimant had a reason to believe that the address to which the Claim Form was sent was one at which the Defendant no longer resided or carried on business, and if so the reasons why.

2.1 The Defendant disputed the parking notice in 2019 and supplied a copy of their blue badge to the Claimants debt collector.  The Claimant did not respond to the dispute and as such the Defendant believed that the parking notice had been cancelled.  Therefore, the fact that the Defendant did not reply to any recent letter 4 years later, the Claimant had 'reason to believe' that the address to which the Claim Form was sent was one at which the Defendant no longer resided.  This is appended as Exhibit B

2.2 The British Parking Association Code of Practice (24.1c)of which the Claimant is an accredited member states that 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.

LINK British Parking AOS

LINK British Parking Approved Contractor list

LINK UKPC accreditation to British Parking AOS

2.3 The Defendant refers to 1.3.1 of the Witness statement and the evidence submitted xxx.

2.4 The Defendant submits further evidence in the form of his tenancy agreement dated xx.  This is appended as Exhibit C.

2.5 The Defendant submits further evidence in the form of his driving licence dated xxx.  This is appended as Exhibit D.

Hearing Order para 6b: Any allegation that the Claim Form, Judgement order or any other correspondence in connection with the claim was sent to the Defendants correct address but was not received.  (The Defendant should note that without supporting evidence to corroborate such a claim, the Court may not accept that there were problems with the delivery of mail).

2.6 Do I repeat what I have said for para 6a?

 

Hearing Order para 6c: The date when the Defendant first became aware of the judgement against him and the reason for any delay in applying to set the judgement aside.

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

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

2.9 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.

3.0 On the x August 2023, I received legal advice from xx who is a solicitor at the x Law Centre xxx.

3.1 On xx 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.

Hearing Order para 6d:  Any other circumstances which the Defendant will ask the Court to take into consideration in deciding the application.

3.2 Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance.  This is very common from bulk litigating parking firms after a CCJ is set aside, if the claim is not also dismissed in that hearing.   A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th 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'. The same is true in this case and in view of the Chan judgment (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. What should I Exhibit??

The facts stated above are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

 

UncleThomasCobley

Why isn't CEL v Chan argument right at the top of the draft defence? Also, at the top of the WS and/or SWS?

Whilst only persuasive, it is still a very clear breach of the CPRs and PD. Any judge teetering on whether to allow the breaches by ordering revised PoC only need be pointed out that "rules are rules".