Unexpected CCJ - Recovery of Debt letter from DCBL

fair2everyone · 28 March 2024 at 10:59AM

Yesterday, in order to try and get the WS & Exhibits ready for today, I mistakenly thought the limit for emailed pages was 30, so I was trying to get down to that level. I now know it is 50 pages and, having just read @skoobimum's thread with a WS attached, I see images that each fill a page. I think I may need to rethink my Exhibits - this one is to demonstrate signage found via Google maps - all combined onto 1 page. Is that acceptable or do I need to use 4 separate pages?

Coupon-mad · 28 March 2024 at 1:06PM

That's fine!

fair2everyone · 29 March 2024 at 1:49PM

We didn't send the WS in the end - I've been doing a lot more reading and particularly looking at the thread by @Citizen_K. They include a transcript in their WS/Exhibits of Excel v Wilkinson in July 2020, before DJ Jackson. I think there are quite a few points in there that could help my son's case but his Defence (already sent) does not refer specifically to Excel v Wilkinson. I have read that you shouldn't rely on anything that isn't in the Defence submitted - however, in para 17 of the Defence template, there is mention of DJ Jackson. Any thoughts, or should I just go for it?

Coupon-mad · 29 March 2024 at 2:18PM

He can go for it as the defence does challenge the added fake admin fee.

fair2everyone · 30 March 2024 at 3:41PM

Here is the latest version of the WS - only paras 15 -17 are new - if you wouldn't mind checking those please.

I was going to include the transcript of Excel v Wilkinson, referred to in those paras but each page is just a screen shot and couldn't find an easy way to post. I'll try to add something meaningful asap.

IN THE COUNTY COURT

Claim No.: XX

Between

EXCEL PARKING SERVICES LIMITED

(Claimant)

- and -

XX

(Defendant)

_________________

WITNESS STATEMENT

1. I am XX, of XX and I am the Defendant in this claim. The facts made in my defence are true to the best of my belief and my account has been prepared upon my own knowledge.

2. In my statement I shall refer to Exhibits 1-XX to provide evidence to support my defence, referring to page and reference numbers where appropriate. My defence is outlined in a separate document.

Background Facts:

3. I first learned of the alleged event (26/04/23) when I received a letter from a Debt Collector (18/11/23) stating that there had been a Default CCJ issued in my name on 12th October 2023. I was shocked to discover this was due to a PCN being issued after my vehicle was parked at the Berkeley Centre Car Park on 26th April 2023. (Exhibit ST01 page x)

4. I did use the car park at the Berkeley Centre to shop at Tesco on the date of the alleged event but could not ascertain from the Particulars of Claim (‘the POC’) the absolute reason for this claim. (Exhibit ST02 page x)

5. As I had not received any letters regarding this incident (they were all sent to an old address) and the POC were unclear, I had no option but to apply and pay £275 for a set-aside hearing to remove this wrongly served, unfair CCJ.

Clear course of the Claimant's unreasonable conduct in this litigation

6. During the process of the set-aside mentioned above, I requested further details via a SAR to both the Claimant and their Solicitor. The information I received (07/12/23) included a copy of a letter to the Claimant’s Solicitor from the Civil National Business Centre stating that the original claim had been un-served and instructing the Solicitor to ‘ensure the address of the Defendant was correct and if not, to re-serve the claim’. This letter was received by the Claimant’s Solicitor on 28 November 2023, at which point, all parties would be aware of the my correct address, as the letter from the Debt Collector was dated 16 November 2023. I believe this is evidence that the Claimant’s Solicitor chose to ignore the Court’s instruction, which I believe shows unreasonable conduct. Had the claim been re-served I would not have needed to apply and pay a £275 fee for the set-aside hearing, spending many hours of time on preparing for this. (Exhibit ST03 page x)

7. Three weeks before the set-aside hearing (28th February 2023), the Claimant’s Solicitor sent an email to the court attaching what they called a ‘Consent Form’ and asking the court whether the allocated hearing would still go ahead “or not”. I was shocked to receive a copy of this email and believe this was done with the intention to mislead the court into vacating the hearing I had been forced to pay for. (Exhibit ST04 page x)

8. I became aware that the Claimant’s Solicitor has done this very thing previously, which had resulted in hearings being vacated. This was reported to their regulator CILEx Regulation Limited in 2023, and their response was that they would remind the Solicitor of ‘the importance to take all reasonable steps to avoid any risk of the court being misled, including unintentionally’. This provides further evidence, I believe, of unreasonable conduct. (Exhibit ST05 page x)

Other supporting evidence for the defence points

9. Paragraphs 9-11 in my defence refer to the routine addition of exaggerated costs, with little or no explanation of where those costs have come from. This is clear from the chain of letters obtained via my SAR request to the Claimant, where the charges jump from £100 to £170, with no clear breakdown of what the extra £70 is for, followed by the final Letter Before Claim which simply states the charge will increase to £170 + £35 + interest (~ £3) (Exhibit ST06 page x)

10. Similarly, paragraphs 12-16 refer to The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice which is currently being reviewed via an Impact Assessment. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN). It is worth highlighting the fact that the Claimant has been involved in providing information to the Impact Assessment detailed above which includes determining the cost mentioned above. (Exhibit ST07 page x)

11. Paragraphs 17-20 make reference to a number of past cases, including ParkingEye v Beavis, which found in favour of the Parking Company and their charge. However, in this Claim, I believe the charge exaggerates the actual cost of template letters and goes against the Supreme Court’s clarification that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs set a high bar that this Claimant has failed to reach. (Exhibit ST08 page x and Exhibit ST09 page x)

12. Paragraphs 22-25 of my Defence also refer to the importance of clear, unambiguous signs. Unfortunately, when I returned to check the signs on site (November 2023), the Claimant was no longer agents for Berkeley Centre and the signs had been changed by the new company (sometime in August 2023). I have searched online (Google Maps) to ascertain what the signs were at the time of the event and have included those images, along with the sign shown in the Parking Eye v Beavis case to demonstrate how the signs compare (Exhibit ST09 page x)

13. In my Defence, paragraph 3, it is stated that I did not think I had overstayed the allowed Free Period. I have shopped at Tesco on this site for years and the allowed time for Free Parking has always been 2hrs. The images shown within Exhibit ST09 indicate that the 2hr free period was in place in October 2022 and also in July 2023, suggesting that there was no change in the terms and condition of the, so-called, ‘contract’ at the time of the alleged event.

14. The Claimant’s are well-known for being the cause for complaint at this site, which several articles in the local newspaper will show. Indeed, I have included an article which reports that the Claimant was removed from managing the site as a direct result of so many complaints at the end of July 2023 (Exhibit ST10 page x)

15. My Defence refers throughout to unfair claims, unclear reasons for the additional charges that were eventually added and double recovery. Of course, as already stated, I knew nothing about these charges until the Claimant had allowed their process to continue all the way to a Default Judgement so allowing those charges to reach the level they did. In paragraph 20, there is reference to a number of District Judges who have consistently dismissed extortionate added ‘fees/damages’. I have recently been made aware of a case taken by DJ Jackson (as Her Honour Judge Jackson was then) involving Excel Parking Services v Wilkinson where she considers a number of points that I believe are pertinent to my Defence. (Exhibit ST11 page x)

16. Paragraph 7 in Excel v Wilkinson refers to the smaller signs on the site that do not state and terms and conditions but refer any driver to the main sign at the Pay Station. These in themselves cannot be considered contractual. As stated earlier, on entering the site on the day in question, I had no need to go to the pay machine because I still believed to car park was free for 2 hours, therefore do not believe I had entered a contract with the Claimant.

17. Similarly, in paragraphs 15 – 24, she discusses the additional charge of £60 and whether it is recoverable or whether it could be double recovery. In paragraphs 25 – 30 there is consideration to whether there have been any breaches of the Consumer Rights Act 2015 and paragraphs 31 – 35 cover aspects of Parking Eye Ltd v Beavis, which the Claimant refers to in their ‘Demand for Payment’ letter (letter no. 3 of 5) (Exhibit ST06 page x). However, my understanding of DJ Jackson’s conclusion is that Beavis cannot be used to to sanction the £100, in this case, being a reasonable sum to cover the cost of the scheme where drivers do not pay the parking charge and also use it as a way to add additional charges for the same thing.

The following Exhibits will be included at the end

Exhibits included so far

ST01 Copy of Letter from Debt Collector

ST02 Copy of POC from CNBC

ST03 Copy of letter from CNBC to ELMS Legal re need to re-serve

ST04 Copy of email from ELMS to local Court with fake Consent Order

ST05 Copy of email from CILEx stating they will warn ELMS re future conduct

ST06 Copies of all letters received after the SAR to Excel

ST07 Copy of paragraphs 4.31 and 5.19 from the DLUHC IA plus page showing Excel were consulted

ST08 Copy of paragraphs paras 98, 100, 193, 198 of Beavis.

ST09 Images of signs found on Google Maps plus the Beavis signage

ST10 Copy of newspaper clippings re complaints at this site.

ST11 Copy of Excel v Wilkinson

ST12 Copy of references made re CRA breaches *** do I need this?

nopcns · 31 March 2024 at 12:32AM

Why on earth are posting the entire Excel v Wilkinson judgment here? We don't need to read it. It is available to anyone who can perform a simple search.

fair2everyone · 31 March 2024 at 7:35AM

Apologies, I’ve removed it.

1505grandad · 31 March 2024 at 8:53AM

Typo? - "7. Three weeks before the set-aside hearing (28th February 2023)...."

Para 15 - no middle "e" in Judgment - see doc you are exhibiting

fair2everyone · 28 April 2024 at 3:16PM

My son did in fact receive an N180 Direct Questions form and has emailed it to both the local court and the Claimant this weekend. So we now wait for a hearing date. In preparation, here is the, hopefully, completed Witness Statement that he will send as soon as he receives the instructions for the hearing. Any thoughts/suggestions gratefully received.

IN THE COUNTY COURT

Claim No.: XX

Between

EXCEL PARKING SERVICES LIMITED

(Claimant)

- and -

XX

(Defendant)

_________________

WITNESS STATEMENT

1. I am XX, of XX and I am the Defendant in this claim. The facts made in my defence are true to the best of my belief and my account has been prepared upon my own knowledge.

2. In my statement I shall refer to Exhibits 1-XX to provide evidence to support my defence, referring to page and reference numbers where appropriate. My defence is outlined in a separate document.

Background Facts:

3. I first learned of the alleged event (26/04/23) when I received a letter from a Debt Collector (18/11/23) stating that there had been a Default CCJ issued in my name on 12th October 2023. I was shocked to discover this was due to a PCN being issued after my vehicle was parked at the Berkeley Centre Car Park on 26th April 2023. (Exhibit ST01 page x)

4. I did use the car park at the Berkeley Centre to shop at Tesco on the date of the alleged event but could not ascertain from the Particulars of Claim (‘the POC’) the absolute reason for this claim. (Exhibit ST02 page x)

5. As I had not received any letters regarding this incident (they were all sent to an old address) and the POC were unclear, I had no option but to apply and pay £275 for a set-aside hearing to remove this wrongly served, unfair CCJ.

Clear course of the Claimant's unreasonable conduct in this litigation

6. During the process of the set-aside mentioned above, I requested further details via a SAR to both the Claimant and their Solicitor. The information I received (07/12/23) included a copy of a letter to the Claimant’s Solicitor from the Civil National Business Centre stating that the original claim had been un-served and instructing the Solicitor to ‘ensure the address of the Defendant was correct and if not, to re-serve the claim’. This letter was received by the Claimant’s Solicitor on 28 November 2023, at which point, all parties would be aware of the my correct address, as the letter from the Debt Collector was dated 16 November 2023. I believe this is evidence that the Claimant’s Solicitor chose to ignore the Court’s instruction, which I believe shows unreasonable conduct. Had the claim been re-served I would not have needed to apply and pay a £275 fee for the set-aside hearing, spending many hours of time on preparing for this. (Exhibit ST03 page x)

7. Three weeks before the set-aside hearing (28th February 2024), the Claimant’s Solicitor sent an email to the court attaching what they called a ‘Consent Form’ and asking the court whether the allocated hearing would still go ahead “or not”. I was shocked to receive a copy of this email and believe this was done with the intention to mislead the court into vacating the hearing I had been forced to pay for. (Exhibit ST04 page x)

8. I became aware that the Claimant’s Solicitor has done this very thing previously, which had resulted in hearings being vacated. This was reported to their regulator CILEx Regulation Limited in 2023, and their response was that they would remind the Solicitor of ‘the importance to take all reasonable steps to avoid any risk of the court being misled, including unintentionally’. This provides further evidence, I believe, of unreasonable conduct. (Exhibit ST05 page x)

Other supporting evidence for the defence points

9. Paragraphs 9-11 in my defence refer to the routine addition of exaggerated costs, with little or no explanation of where those costs have come from. This is clear from the chain of letters obtained via my SAR request to the Claimant, where the charges jump from £100 to £170, with no clear breakdown of what the extra £70 is for, followed by the final Letter Before Claim which simply states the charge will increase to £170 + £35 + interest (~ £3) (Exhibit ST06 page x)

10. Similarly, paragraphs 12-16 refer to The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice which is currently being reviewed via an Impact Assessment. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN). It is worth highlighting the fact that the Claimant has been involved in providing information to the Impact Assessment detailed above which includes determining the cost mentioned above. (Exhibit ST07 page x)

11. Paragraphs 17-20 make reference to a number of past cases, including ParkingEye v Beavis, which found in favour of the Parking Company and their charge. However, in this Claim, I believe the charge exaggerates the actual cost of template letters and goes against the Supreme Court’s clarification that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs set a high bar that this Claimant has failed to reach. (Exhibit ST08 page x and Exhibit ST09 page x)

12. Paragraphs 22-25 of my Defence also refer to the importance of clear, unambiguous signs. Unfortunately, when I returned to check the signs on site (November 2023), the Claimant was no longer agents for Berkeley Centre and the signs had been changed by the new company (sometime in August 2023). I have searched online (Google Maps) to ascertain what the signs were at the time of the event and have included those images, along with the sign shown in the Parking Eye v Beavis case to demonstrate how the signs compare (Exhibit ST09 page x)

13. In my Defence, paragraph 3, it is stated that I did not think I had overstayed the allowed Free Period. I have shopped at Tesco on this site for years and the allowed time for Free Parking has always been 2hrs. The images shown within Exhibit ST09 indicate that the 2hr free period was in place in October 2022 and also in July 2023, suggesting that there was no change in the terms and condition of the, so-called, ‘contract’ at the time of the alleged event.

14. The Claimant’s are well-known for being the cause for complaint at this site, which several articles in the local newspaper will show. Indeed, I have included an article which reports that the Claimant was removed from managing the site as a direct result of so many complaints at the end of July 2023 (Exhibit ST10 page x)

15. My Defence refers throughout to unfair claims, unclear reasons for the additional charges that were eventually added and double recovery. Of course, as already stated, I knew nothing about these charges until the Claimant had allowed their process to continue all the way to a Default Judgment so allowing those charges to reach the level they did. In paragraph 20, there is reference to a number of District Judges who have consistently dismissed extortionate added ‘fees/damages’. I have recently been made aware of a case taken by DJ Jackson (as Her Honour Judge Jackson was then) involving Excel Parking Services v Wilkinson where she considers a number of points that I believe are pertinent to my Defence. (Exhibit ST11 page x)

16. Paragraph 7 in Excel v Wilkinson refers to the smaller signs on the site that do not state any terms and conditions but refer any driver to the main sign at the Pay Station. These in themselves cannot be considered contractual. As stated earlier, on entering the site on the day in question, I had no need to go to the pay machine because I still believed to car park was free for 2 hours, therefore do not believe I had entered a contract with the Claimant.

17. Similarly, in paragraphs 15 – 24, she discusses the additional charge of £60 and whether it is recoverable or whether it could be double recovery. In paragraphs 25 – 30 there is consideration to whether there have been any breaches of the Consumer Rights Act 2015 and paragraphs 31 – 35 cover aspects of Parking Eye Ltd v Beavis, which the Claimant refers to in their ‘Demand for Payment’ letter (letter no. 3 of 5) (Exhibit ST06 page x). However, my understanding of DJ Jackson’s conclusion is that Beavis cannot be used to to sanction the £100, in this case, being a reasonable sum to cover the cost of the scheme where drivers do not pay the parking charge and also use it as a way to add additional charges for the same thing.

Conclusion

18. The Claimant and their Solicitor have both acted unfairly (and, I believe, unreasonably) throughout this case:

After over 8 weeks of no response to letters, the Claimant knows it is very likely that the address used is an old address. Rather than perform an easy, cheap soft trace to check the address, they chose to continue with their process of allowing things to escalate, causing considerable cost and anxiety to myself.
After the Default CCJ, the Claimant’s Solicitor was instructed by the court to ensure they had the correct address, yet the Solicitor (on the Claimant’s behalf) chose to ignore this, even though the Debt Collection company (instructed by the Solicitor) had already found the correct address.
Prior to the Set-Aside Hearing, the Claimant’s Solicitor made what, I believe, was an attempt to mislead both the court and myself into agreeing to something that would avoid the Claimant being ordered to pay the £275 fee for the Set-Aside.

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.

Signature:

Date: