CCJ set-aside. Now Small Claims & Draft Defence.

Coupon-mad

The judge also allocated the final hearing to themself.

That's not great, by the sound of it!

DJ bingo again. Bad Judge but at least the damn CCJ is set aside! Hooray!

I think this is a Judge who has done a few parking set aside hearings before and, has always had it cemented in their mind, that the DVLA address is good for service.  That mindset is hard to break as it would mean he was wrong in previous cases (assuming he has refused some costs and even refused applications in the past) and he doesn't want to hear that!

Plenty of Judges have never heard an argument like yours and are quick to blame consumers for not being psychic and guessing that updating their driving licence has not updated all their DVLA records.

You did well to get the CCJ set aside and costs reserved.  No-one could have achieved more.

And yes, good idea:

a drop-hands offer (reminding them that costs are 'reserved' and the same Judge has already intimated that the mocked up consent order and causing the first hearing to be vacated was unreasonable conduct) AND attaching your updated cost schedule so far but offering to drop costs if they also drop hands and discontinue by the end of June.  If they do so AFTER that date you will claim all your attached costs plus third hearing costs.

Khayman

I've drafted an email I'm planning to send to VCS before Monday offering a 'drop-hands' settlement, and would appreciate any thoughts!


Dear Mr X,

I am writing with regards to the above case, the hearing for which took place this past xx June. 

As you are no doubt aware, the claim has been ordered to the Small Claims track, with expenses reserved for the final hearing (having been split into expenses for the xx March, and xx June), due to take place as soon after xx August as possible. I presume your advocate, Mr [advocate], will have provided a report on the details discussed in the hearing.

I have been instructed to provide my draft defence by the xx July, but in the interests of saving all parties, and the court, any more time and expense, and because mediation between parties is encouraged, I am writing to you in the hopes that we can reach a settlement before then.

I would like to make a 'drop-hands' offer, whereby we agree that neither party owes the other anything, and the claim is discontinued. I believe this is reasonable as the amount for the claim itself is relatively small, and as Mr [Advocate] may have reported to you, the Judge intimated that costs for the xx March would likely be awarded to me, due to the misleading 'consent form' sent by your legal representative at the time ELMS Legal (a practice for which I am aware they have previously been warned against by CiLex) resulting in that hearing being wrongly vacated. Even arguing for costs for the xx June hearing, which I think are unlikely to be awarded to VCS based on the argument for the xx March costs, I think it likely that costs awarded to me will effectively wipe out any gains for VCS, especially when taking into account additional time and costs of the final hearing itself. As such, and because I am more interested in saving everyone any more time and expense on this matter, I am willing to drop my expense claims if VCS will agree to do the same, and discontinue the claim.

I would be grateful if you could respond by EoB Friday 28th June, otherwise I will have to consider additional expenses based on having to prepare for and attend the final hearing.

I look forward to hearing from you soon.

Sincerely,

Coupon-mad

Very good but split up the long paragraph.

Khayman

Sent the email yesterday and just received this:

Good morning,

We note your offer to drop your claim, if we do the same

Unfortunately we must decline

Regards

Litigation

So that's not very helpful. My concern is that now my expenses are tied up in the final hearing, they can string me along until the last minute at which point they might discontinue the claim, and I'll have suffered another 2 months of stress and work on the defence, for nothing.
It boggles my mind that they would send such a curt, unhelpful email. No explanation, no information as to any further contact from them etc. It strikes me as incredibly unprofessional.

Also, their use of the word 'unfortunately' is pretty incredible if you think about it!

Coupon-mad

I think when you file & serve your defence also attach a WS and evidence and your costs assessment that VCS has already seen and remind the court that costs are reserved.

Remind us what the PCN is all about?

LDast

Can you please also show us the original PoC and all the amounts claimed in the original claim that you never received? I am sure I can find a discrepancy in those figures, especially regarding interest claimed that may be of use in your defence.

Whilst the judge may have been an idiot when it comes to a DVLA address for service, he/she may not be so bad when it comes to arguing other points, especially when it comes to details that show that rules are rules and if VCSs argument that a DVLA address is good enough, if you can show how they have abused the process with their mendacious calculations in the original claim which was signed with a statement of truth but was anything but truthful, you may be in better standing with them.

Khayman

Coupon-mad said:

Remind us what the PCN is all about?

It's for stopping on the red route at Leeds-Bradford Airport. I only saw the particulars for the first time when VCS sent their WS in late May. I've not gone through the wrongly addressed letters etc. in detail, but it contains photos etc. of the car, so that's their claim. I'll go through it tomorrow for anything else of note.

Going back to the response this morning though, do you think it's worth replying asking for a little elaboration? "Will I be hearing from you with regards to this claim?", "Are you planning to leave it until the hearing date?" etc.?
The problem is that their behaviour seems so adversarial, to the point of being almost illogical. I want to assume they would rather settle than go to court as it will come with costs and risk, so I am pretty much expecting now that I will get a letter in the post from VCS with their 'demands' i.e. what they want from me to drop the case. Would you agree?
My concern is that they demand the PCN charge AND expenses.
If so I will counter for just the PCN and settle, but if they demand everything then I will have to see.

Also, as far as their 'expenses' are concerned, is anyone aware of a time (perhaps recorded on the forum, I will try to check but do not hold much hope if I include the word 'expenses' in my search!) when a defendant was ordered to pay for the Claimant having written a WS and attended a hearing? The more I think about it the more impossible it sounds, but based on the outcome of the hearing I am not ruling out worst case scenarios by any means.
To repeat my prior argument, I cannot see how a defendant can be liable for any hearing costs for the claimant, simply for wanting the hearing to take place so that they can argue their case?! Otherwise the judge is saying that by merely applying (and paying!) for a hearing the defendant is automatically liable to costs if the Claimant bothers to show up?!
I also cannot see how if costs for the hearing are awarded to the Claimant, they cannot therefore be awarded to the defendant also? 
I can very much see the judge knocking my costs down (with the exception of surely being owed for the time wasted attending the wrongly vacated hearing) by argument that I wanted the hearing therefore I shouldn't be owed for any time preparing for or attending, and that as I was successful with the set aside and if I lose the claim, the hearing fee was a fair cost also.
This is part of the reason I want to avoid all the time and work of actually having to go to Small Claims. It feels like every step is stacked in favour of the Claimant.

Coupon-mad

Also, as far as their 'expenses' are concerned, is anyone aware of a time (perhaps recorded on the forum, I will try to check but do not hold much hope if I include the word 'expenses' in my search!) when a defendant was ordered to pay for the Claimant having written a WS and attended a hearing?

Only where the Defendant is held to have acted wholly unreasonably. The same rule you used against them at the first hearing.

Otherwise no. Those extra costs can't be recovered in small claims, absent unreasonable conduct.

Khayman

Hi again,

I'm about to start on my Draft Defence which I need to file by the 9th as I've not yet heard from VCS about any settlement etc.

Going through the documents etc. I am now thoroughly confused as to how the original amount of £277 was actually calculated.

From the copy of the letters sent to the wrong address that VCS included in the WS for the hearing it seems there was a PCN for £100. This then had £70 added as 'debt collection costs'. Later in the Letter Before Claim there is an estimated court fee of £35 and a mention of interest (8% p.a.). So let's say they add 6 months of interest on the £170 (as the PCN is for May and I didn't learn of it till November). That rounds up to £177. So is it the Bailiffs (DCBL) that are adding £100?! Or say they've added the £35 bringing it to £212 and DCBL have added £65?! Presumably then DCBL's costs are on top of the original 'debt collection costs'?

So what I'm now wondering is when we get to Small Claims, how much can VCL actually claim for? Surely it can't include any DCBL costs, and I was under the impression the Judge's order to sent to Small Claims restarted the clock, as though I had received the first notice of the PCN? In which case are they actually only allowed to claim £100??

What I also can't get my head around is how, if their PCN plus 'debt collection' charges come to £170 (what they were demanding before applying for the CCJ etc.) how they are sending me (after the vacated hearing) letters saying they'll accept £195??

Finally, does anyone know of anyone else on the forum who has submitted a draft defence specific to Leeds Bradford Airport? I'm having trouble with the search and haven't found anything yet so thought it worth asking!

I'll post my draft defence when it's done.

Thanks in advance!

LDast

You’re getting all tied up in knots about the sum of the claim. I did ask that you show us the numbers and dates in the original PoC but you have ignored that.

On the claim will be the claim amount which will consist of £100 plus a fake added £70 “damages” or “dent recovery costs” plus interest calculated at a flat rate of 8%/annum. There will also be a fixed court fee of £35 and a fixed legal fee of £50.

What we don’t know and neither do you in all likelihood, is how the added £70 is calculated. If it is simply a fixed sum plucked out of their self serving AOS CoP, the you should be asking for details on how this sum is arrived at and demand a breakdown of any and all elements of that sum, including any VAT. If it is claimed as “damages” you should be demanding a breakdown of how they reached the figure and which elements of it apply as damages and how those damages are assessed.

Interest should only be calculated on the principal sum, which was £100. Any additional amounts such as damages or contractual costs should not be added as it is a claim in the small claims track and as such, interest should only be calculated on the principal sum.

If they’ve added an amount of interest, you and the court should be able to check that figure for accuracy. The only way to do that is if you know the dates they have used which will be dependent on the dates of any notices they sent alleging the breach of contract and any dates they noted when the alleged debt would have become overdue. You and the court would also need to know the cut-off date they used to calculate the interest.

If they have not evidenced all the necessary dates used for their calculations, then there is no way to check them for accuracy. Because of this, the defendant should be demanding full disclosure under CPR 18 for further information. A CPR 18 request must be fulfilled. Refusal or non-compliance gives the defendant an opportunity to bring this to the courts attention and to request sanctions including having the claim struck out. The defendant can warn the claimant that an application for a court order to require disclosure of the additional information 
/evidence requested will render them liable for the cost of the application.

Once the dates that have been used are known, the interest calculation can be checked for accuracy (I have yet to see even one claim where interest has been calculated correctly) and also whether the dates used are valid in relation to when any notices (invoice) were issued and then became overdue. As an aside, I am currently dealing with claim where the NtK does not even have any due date for the charge on it rendering it impossible to know when they started their interest calculations from.

So, the claim should only be for £100 plus any interest from the overdue date to a date stated as used for the calculation. The fixed £35 plus £50 fees are added to that. These scammers add the fake £70 in the hope that they can get a default judgment that has no human intervention and they then get away with daylight robbery. Should it get to a hearing and the defendant lost, most judges will not allow the fake add-ons which is why we always tell defendants that it is likely to be cheaper to fight and lose rather than simply give in and pay the claimed amount just to avoid their irrational fear of having to go to court.