UKPC Set Aside Hearing

Chesterfield1970

I have reordered this to see if i have understood the requirements of para 6a & para 6.b?

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 Exhibits B1, B2, B3

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 Code of Practice

LINK British Parking Approved Operators list

LINK UKPC British Parking accreditation

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).

2.3 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 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.

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

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

2.8 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.

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

3.0 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.

3.1 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. 

 

Coupon-mad

Why doesn't it include this point anywhere?  It should be in the defence and the WS: 

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 ...
Etc etc

6b is asking for any allegation you are saying that the letters went to the CORRECT address.  You are not saying that, are you?

So the answer to 6b is N/A and the points you made there should move down to answer 6d.

The Chan transcript - non-blurry version -should be an Exhibit (as well as it appearing in your defence PDF).

What exhibit do you have to prove when you moved house?

Can you prove that you updated all utilities and bank accounts with the new address, such that a bulk 28 pence Experian 'soft trace' by the Claimants would have found your address?

Can you prove you updated the V5C too?

What Exhibits did you already send with your first WS?

Also can you exhibit proof of this?

2.8 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

Coupon-mad

Chesterfield1970 said:

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant named on claim (can’t be changed to driver now)                        

 (Defendant)

_________________

DRAFT DEFENCE

 

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').

 

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. 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". The fact that the claimant as sat on this case for over 4 years before issuing proceedings means that the Defendant is unable or recollect, based on the POC, to 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.

3. The Defendant confirms that they are a blue badge holder due to having a disability.  

4.  As the Defendant has a disability and is a blue badge holder, the Defendant has protected characteristics under the Equality Act 2010 (“the Act”) and therefore has a right to park in an accessible parking bay. The Act has strict requirements and states that the Defendant is entitled to reasonable adjustments. The Claimant has failed to anticipate the needs of a disabled motorist and failed to implement any reasonable adjustments for the Defendant which is indirect discrimination. 

5. The Claimant refers to the Contract in their Particulars of Claim ("POC"). The Defendant’s rights under the Act takes precedence over the Contract and therefore the Claimant is in breach of the Act. Therefore, if the Claimant is to continue this claim, it would constitute direct discrimination against the Defendant.

6. The POC are entirely inadequate, in that they fail to particularise (a) the contractual term(s) relied upon; (b) the specifics of any alleged breach of contract; and (c) how the purported and unspecified 'damages' arose and the breakdown of the exaggerated quantum. 

7. No further particulars have been filed and to the Defendant's knowledge, no application asking the court service for more time to serve and/or relief from sanctions has been filed either. 

8. In view of it having been entirely within the Claimant's Solicitors' gift to properly plead the claim at the outset and the claim being for a sum, well within the small claims limit, such that the Defendant considers it disproportionate and at odds with the overriding objective (in the context of a failure by the Claimant to properly comply with rules and practice directions) for a Judge to throw the erring Claimant a lifeline by ordering further particulars (to which a further defence might be filed, followed by further referral to a Judge for directions and allocation) the court is respectfully invited to strike this claim out."

9. The Claimant will concede that...

(Snipped as we don't need to see the Template Defence please)

Why have you got weird inverted commas at the end of para 8, like you've copied it?!

Chesterfield1970

Hi @Coupon-mad

16 November at 11:46PMedited Today at 12:02AM

Why doesn't it include this point anywhere?  It should be in the defence and the WS:   I WILL MAKE SURE THIS IS ADDED

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 ...
Etc etc

6b is asking for any allegation you are saying that the letters went to the CORRECT address.  You are not saying that, are you?

So the answer to 6b is N/A and the points you made there should move down to answer 6d.  UNDERSTOOD

The Chan transcript - non-blurry version -should be an Exhibit (as well as it appearing in your defence PDF). UNDERSTOOD

What exhibit do you have to prove when you moved house?  I HAVE A COPY OF MY TENANCY AGREEMENT IS THIS GOOD ENOUGH?

Can you prove that you updated all utilities and bank accounts with the new address, such that a bulk 28 pence Experian 'soft trace' by the Claimants would have found your address?  I WILL LOCATE OLD BILLS, ACCOUNT DETAILS AND ADD EXHIBITS

Can you prove you updated the V5C too? IM NOT SURE ABOUT THIS ONE BUT I DO HAVE A PHOTO LICENCE DATED JULY 22, IS THAT GOOD ENOUGH OR AN ISSUE

What Exhibits did you already send with your first WS?

 COUNCIL TAX BILL FROM 2021 AND A POLLING CARD

Also can you exhibit proof of this?  I HAVE A LETTER BACKING UP THE CALL IN AUGUST AND I WILL SEE IF I HAVE ANYTHING THAT BACKS UP THE INITIAL CALL AND ADD THEM AS EXHIBITS

2.8 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

WITH REGARDS TO THE “ I WILL DOUBLE CHECK WHY THEY ARE THERE AND IF NOT NEEDED REMOVE

Thanks again

Chesterfield1970

Sorry forgot to ask but once I have all of this in place do I send everything via email only.  I wondered because the templates talk about ensuring you get an acknowledgment or is a delivery receipt sufficient.  Conscious I have to have this with all parties by Monday 4pm

Coupon-mad

You won't get an acknowledgement as you are not sending anything to the CNBC. You are emailing this bundle to the local court's email (given on the Order I think?) and the solicitor for the Claimant.

Can you prove you updated the V5C too? IM NOT SURE ABOUT THIS ONE BUT I DO HAVE A PHOTO LICENCE DATED JULY 22, IS THAT GOOD ENOUGH OR AN ISSUE

It is an issue.  Have you even updated your logbook address?  That caused the problem.  A Driving Licence is completely irrelevant.

Chesterfield1970

@Coupon-mad I need to check but if I haven’t does that mean I can’t progress the set aside on the basis they should have tried other means to contact me?  I pay my car tax by direct debit and whilst I know that doesn’t confirm my address the DVLA still know I own the car?

Le_Kirk

Can you prove you updated the V5C too? IM NOT SURE ABOUT THIS ONE BUT I DO HAVE A PHOTO LICENCE DATED JULY 22, IS THAT GOOD ENOUGH OR AN ISSUE

It is the V5C that is important to update when you move not the driving licence.  DVLA do not do joined up thinking nor do their two systems talk to each other.

Chesterfield1970

@Le_Kirkif I haven’t does that mean I can’t push the set aside

Chesterfield1970

Sorry meant to say if I haven’t updated my address on the V5