UKPC Set Aside Hearing

Le_Kirk

Of course you push for set-aside, just need to use different evidence of moving and "being there to be found".

Coupon-mad

Of course you continue. Your case is no different than any other!

Update the V5C immediately and don't mention that in your WS.

Pretty much ALL the CCJ set aside threads here are from people who failed to update their V5C, didn't you realise that?  And they almost invariably ALL win.

The duty in the CoP (all three CoPs including the new statutory one) requires them to trace you, not the other way round, and even if you'd changed your V5C address the month after the PCN, the parking firm could not have found out because they are not allowed to ask the DVLA twice.

Hence why a soft trace is mandatory.

Chesterfield1970

@Coupon-mad I hadn't updated my V5C but it is now, so thank you for that.

I have updated the Supplementary Witness Statements as discussed and would appreciate it if you could sat your eye over it and the questions i have raised below please?

I have also added in the following paragraph but wanted to ask if you would add the full paragraph as per my defence:

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.

With regards to exhibits do I have to provide full statements, tenancy agreements etc or just the important front pages of those documents.

Thanks Again

Chesterfield1970

I am xxx, I am the defendant in this matter, and this is my second witness statement in response to the Hearing Order dated XX.  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 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.

2.2 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.   This is appended as Exhibits B, C & D

2.3 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).

2.4 The Defendants response to para 6.b is N/A

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.

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

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

2.7 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.  This is appended as Exhibit E

2.8 On the x August 2023, I received legal advice from xx who is a solicitor at the x Law Centre xxx. This is appended as Exhibit F

2.9 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.

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

3.1 The Defendant submits further evidence in the form of his tenancy agreement dated XXX.  This is appended as Exhibit G.

3.2 The Defendant submits further evidence in the form of his Severn Trent Water bill dated XXX . This is appended as Exhibit H.

3.3 The Defendant submits further evidence in the form of XX, council tax bill dated XXX/2020.  This is appended as Exhibit I.

3.4 The Defendant submits further evidence in the form of his e.on electricity and gas bill dated XXX/2020. This is appended as Exhibit J.

3.5 The Defendant submits further evidence in the form of his bank statement dated XXX2021. This is appended as Exhibit K.

3.6 The Defendant submits further evidence in the form of his ‘other bank’ statement dated XX. This is appended as Exhibit L.

3.7 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.   This is appended as Exhibit M

1505grandad

A heads-up  -  note how the word "Judgment" is spelled in the Court doc. you are quoting from  (no middle "e").

Chesterfield1970

@1505grandad Thanks I have amended

Chesterfield1970

HI When sending the WS do I add the Exhibits to the bottom of the document or can i send as attachments via email?

Coupon-mad

I'd suggest this:


I am xxx, I am the Defendant in this matter, and this is my second witness statement to support my N244 application to ask the court to make an Order to set aside the CCJ, and to dismiss the claim.

This supplementary submission is in response to the Hearing Order dated XX.  The learned Judge’s requirements as set out in that Order are answered as follows:

1. Para 5 of the Order requires a draft defence. This is appended as Exhibit A. However, I believe that a defence and second hearing will not be required, if the court is with me after referring to paragraph 5.8 below first, and by comparing the appended recent CCJ set aside appeal outcome to the Particulars of Claim ('POC') in my own case.

2.  Para 6 of the Order says at 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  I take the point, firstly, that the Claimant sat on this case for 4 years and only then issued proceedings. Whilst the limitation period allows 'debt' claims to be filed within six years, a very long delay places the Claimant in difficulty.

2.2.  Rule 6.9 of the CPRs states that where a Claimant has 'reason to believe' that the last known address for the Defendant is an address at which the Defendant no longer resides, the Claimant must take reasonable steps to ascertain the correct address. An individual should be served at their 'usual or last known residence.'

2.3.  It is not reasonable to continue to use a four year old address without further checks, and in any event the DVLA does not provide Keeper on Date of Event ('KADOE') addresses as verified service addresses.  DVLA simply give out the address where a car was registered 'on the date of the event'. That was my 2019 address. It cannot be assumed that it is still valid several years later.

2.4.  The DVLA, Local Authorities, TFL and the parking industry are well aware of the shortcomings of the antiquated KADOE system.  Motoring groups have raised concerns that up to a third of such addresses are unreliable or out of date at any given time, either due to DVLA backlogs or due to the unresolved data issues flowing from the DVLA's decision to remove the paper 'tax disc' (a visible annual reminder). Commonly, unreliable DVLA data is due to the modern transient nature of jobs and especially rented accommodation, which firms like UKPC (who operate at many residential estates) know causes an average flat to change occupancy approximately yearly.

2.5.  Indeed, a car's registered address will sometimes never be the keeper's home address, if a vehicle is legitimately kept elsewhere with family, at a workplace or wherever the main driver uses it. In my case, it was an address where I no longer resided and I was oblivious that the unfair parking charge had not been cancelled as I had believed.  Even when the DVLA know that the keeper 'data subject' has subsequently moved (by virtue of the Driving Licence being updated, which I did soon after moving) the fact is that this Claimant could not lawfully ask the DVLA a second time.  

2.6.  That does not exonerate a parking operator, however, especially if a long period of time has passed, and a previously responsive and engaged motorist has not replied.  In the case of private parking, it is incumbent on the operator or their agent to make other (non DVLA) searches or enquiries to track down a Defendant, pre-litigation.

2.7.  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 PCN or to later reminder letters, make 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

2.8.  As the Supreme Court held in ParkingEye Limited v Beavis [2015] UKSC 67, at 111. ''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.''

https://www.supremecourt.uk/cases/docs/uksc-2013-0280-judgment.pdf

2.9.  The Claimant failed to obtain the Defendant’s current address by simple online searches. My financial and utility bill exhibits show that, at all material times during the pre-action protocol stage, I was 'there to be found' for the cost of a Credit Reference Agency 'soft trace' which the Department for Levelling Up has identified (in the 2023 draft Impact Assessment linked in my draft defence) costs just £1.50.  Even less than the DVLA look-up.  Any post that the Claimants had sent to the old 2019 car registration address was by now either being returned or left unanswered. It wasn't just possible that I had moved, it was in fact more likely than not.  That the claim has gone unanswered after pre-action letters had gone the same way, is as a result of their failure to perform their obligations prior to issue.

2.10. Further: I was known by the Claimant and their agents, not to be person who ignores private parking charges. I had disputed the parking notice in 2019 and supplied a copy of my blue badge to the Claimant's debt collector, in response to an aggressive letter.  I heard nothing more and I reasonably believed that the parking notice had been cancelled, not least because the debt collector holds itself out as a 'debt resolution' stage - a buffer against legal action whereby unfair parking charges can be cancelled.  See Exhibits B, C & D.

2.11.  After such a long gap, any DVLA address is redundant as a data source to a parking firm who can no longer reasonably hold out that the 2018/19 address is the 'last known' residence.  If the Claimant had complied with its mandatory duty and made efforts to contact me prior to legal action, proceedings (and therefore the Judgment) would have been avoided. I had appealed this PCN on valid grounds and with evidence in 2019, showing myself to be a person who would engage with even very limited (indeed futile) dispute opportunities.

2.12.  From this background, the Claimants should have considered that I would have undoubtedly responded to a final reminder or LBC. And there is no question: the duty to find my address is theirs; they were obliged to comply with the BPA CoP.  They did not, and by their inaction the Claimants prevented me from successfully resolving the dispute by complaining to the site landowner.  Failing that, I would have defended the claim, had I known that this unwelcome matter was still rumbling on a year ago. 

2.13.  For these reasons, by the time of contemplating litigation, the Claimant indisputably had 'reason to believe' that the old address to which they planned to just 'run with' and issue the Claim Form to, was more than  likely one at which I no longer resided.   

3.  Hearing Order para 6b calls for: "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..."

3.1.  6b is N/A. The Claim Form and any pre-action letters were not sent to my current address.

4.  Hearing Order para 6c requires: "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."

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

4.2.  I acted very promptly.  On x July 2023 I contacted the County Court Business Centre to obtain relevant information relating to this default judgment because I didn't have sufficient detail to complete a N244 application even if I'd known how to do that without help.

4.3.  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.  Proof of this is appended as Exhibit E.

4.4.  On the x August 2023, I received legal advice from xx who is a solicitor at the x Law Centre xxx. This is appended as Exhibit F.

4.5.  On xx September 2023 after also obtaining online advice from experts in the parking field and as soon as I was financially able to meet the costs, I submitted my case to set aside this CCJ and either dismiss the claim entirely, or alternatively be afforded the fair opportunity to present my case once the unfair CCJ is wiped.

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

5.1.  Firstly I draw attention to 1.3.1 of my first Witness Statement and the evidence submitted 

xxx ??

5.2.  I now submit further evidence: my new tenancy agreement dated XXX.  The relevant pages are appended as Exhibit G and I will bring the document to court in case the Judge or Claimant wishes to inspect it.

5.3. I submit evidence that a CRA 'soft trace' in 2022 would have found me prior to litigation, in the form of my Severn Trent Water bill dated XXX . This is appended as Exhibit H.

5.4.  I submit evidence that I had moved by 2020, in the form of XX, council tax bill dated XXX/2020. Exhibit I.

5.5.  I also submit as evidence: my e.on electricity and gas bill dated XXX/2020. Exhibit J.

5.6.  I submit further supporting evidence in the form of my bank statement dated XXX2021. Exhibit K.

5.7.   I submit further financial address evidence in the form of my ‘other bank’ statement dated XX. Exhibit L.  Certainly, two utility bills registered in my name at my new address, plus two bank accounts and proof of my Council Tax address (all changed more than two years before any LBC) would have been picked up by a competent CRA 'soft trace'.

5.8.  Also falling under the 'any other information' heading is to respectfully draw the Court's attention to a preliminary matter which I believe should supersede any need for a full defence/second hearing.

5.8.1.  A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) holds that the POC fails to comply with CPR 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15/8/2023 HHJ Murch held that the POC '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, the Court should strike out the claim pursuant to CPR 3.4. 

5.8.2. The Chan appeal also related to a CCJ set aside application regarding similarly defective parking firm POC and is appended as Exhibit M.

5.8.3.  I believe a comparison of this POC with the defective POC which is highlighted in the Chan case should negate the need for my draft defence to come into play. A screenshot of that transcript also appears at the top of my draft defence (also to cover the possibility that the claim is not immediately dismissed, my draft defence is taken to be my Defence, and a different Judge may otherwise not realise that I wish to raise this preliminary matter at any second hearing).

5.8.3.  Many other courts are taking the same view as HHJ Murch, and evidence of that growing consensus that these boilerplate claims fail to comply with the CPRs is found here (link to half a dozen judgments dismissing parking claims in 2023). https://www.dropbox.com/scl/fo/gl0tt6pc65xnnvtq2e6g8/h?rlkey=ovz1j9xud64vzhqxx0fh2a8im&dl=0

I will bring printed versions to the hearing. This Claimant is aware of the Chan case.

6.  In conclusion, there are certainly 'other good reasons' why this CCJ should be set aside under CPR 13.3.

6.1.  However, I ask that the CCJ is set aside for want of service within the 4 month period after filing it with the CCBC, this being a mandatory set aside (CPR 13.2) and

6.1.1.  The claim be dismissed also pursuant to the Chan case, as well as the Overriding Objective, and

6.2. The Claimants had ample time and opportunity to comply with the Pre-Action Protocol, CPRs and BPA CoP, and properly serve their claim. Instead they waited 4 years and added massively enhanced interest too, I think). In their haste or negligence, they/their agents dispensed with any address tracing and used a very old address.  This questionable conduct is all down to the Claimant.  As such, the claim was not served within 4 months.

6.2.1. There are several authorities for this, including Piepenbrock v Associated News Limited [2020] EWHC 1708 (QB) 4 where the High Court dismissed the Claim after the Claimant failed to demonstrate they took all reasonable steps to serve the Claim form properly.

6.2.2. Mr Justice Nicklin held:

“Ultimately, the problem was that the Claimant had made no attempt to serve in accordance with the rules…Although I sympathise with the Claimant that the consequences for him of the error of not validly serving the Claim Form will be serious, there is nothing that really separates his case from many others who have made similar mistakes when attempting to serve a Claim Form…

I am afraid, in this case, the responsibility for the failure validly to serve the Claim Form rests solely with the Claimant’s side… In light of my conclusions above, having refused the applications made under CPR 7.6, 6.15 and 6.16, there is not a residual self-standing power available under CPR 3.9 to relieve the claimant of the “sanction” that, as a result of his failure to validly to serve the Claim Form during its period of validity, it has now lapsed... Finally, the Claimant seeks an order under CPR 3.10 remedying his error in not validly serving the Claim Form. The Defendants submit that CPR 3.10 cannot rescue the Claimant. This general provision does not enable the Court to do what CPR 7.6(3) forbids: Vinos -v- Marks & Spencer plc [2001] 3 All ER 784; [2001] CP Rep 12 [20].”

Costs

7.  I respectfully ask as well, that my £275 fee plus fixed £95 hearing attendance costs be awarded in full, by virtue of the wholly unreasonable conduct of the Claimant filing an inadequately-pleaded claim to an old address, in flagrant breach of the CPRs and the BPA CoP.

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:

Date:

Chesterfield1970

@Coupon-mad Thank you for taking the time to do this for me.

Can I ask about paragraph 6.2 because the PCN is 5 years old therefore is this section relevant?

Thanks

Coupon-mad

I looked back and you said 2018. So you are right!  Do NOT remove Piepenbrock though. It is still an authority that the claim wasn't properly served within 4 months of filing it.