CCJ Set Aside Following Parking Fine

raburgess1

Thanks for the kind words @Coupon-mad - it is appreciated.

I have partially filled in my N244 application the only section that needs a little refining is the evidence statement. Will I need to relay the information (my story) that I have provided in the first post along with the arguments that have been sent onto the Smart Parking lawyers below:

The CCJ should be set aside under CPR 13.3, there being several good reasons to support the fact that the CCJ should not stand under the circumstances and I should be afforded the opportunity to defend it, or in the alternative, a chance for the parking operator Claimant to discontinue the Claim (as per the instructions of their principal) once this CCJ is set aside:

• The Claim was defective. It does not even explain how many parking charges are being sought, the dates of them (assuming more than two) or what the terms were, or what the various alleged breaches were, why the sum is so extortionately high and why interest appears to have been applied on the whole quantum from an unknown single date when it would be impossible for £510 to have been due.  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 Defendant was unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost were being pursued, and believed that the charges were being cancelled.  This all made it particularly difficult to respond with a 'defence' at the time.  Compliance with the CPRs is not optional for a Claimant - and their breach came first, and their breach caused my difficulty in knowing how to defend. If the parking operator believed that there was an adequate case it needs to be properly pleaded, with supplementary Particulars in multi-PCN cases.

• The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

• 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 attached) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

• This extremely poor pleading means the case only became apparent to me late in the process.  I did not know how to defend an unquantified sum of £510 which bore no relation to any signs, and where there was no allegation set out that I could have reasonably been expected to respond to at the time of the Claim.

• I did not ignore it; the landowner wanted the charges cancelled and the Claimant knows this yet still pressed ahead with a default CCJ.  Rightly or wrongly, I continued to complain to the parking operator's principal (landowner - the leisure centre) and following dialogue with the leisure centre that had commenced before the date of the Claim, they agreed to cancel these parking charges and this was finally confirmed in October 2023. See Exhibit x.

• In the time between my initial dialogue and the confirmation of the cancelling of all parking charges this Claimant had not only filed a claim but sought default judgment, despite knowing that the landowner had contacted them to require cancellation.

Coupon-mad

Looks like it fits CPR 13.3 to me.

raburgess1

I've noted on another legal forum (see link) that people are encouraged to provide a Witness Statement, a Draft Order, and a Draft Defence along with their N244 applications. Is there a section on this forum that deals with this?

Coupon-mad

Yep, the NEWBIES thread tells you to include a Draft Order & WS.

NOT A DEFENCE YET...

IMHO a draft defence not a good idea this early, because we've seen judges use the hearing YOU are paying for, to conduct a mini-trial for the PCN.  i.e. handing the Claimant a hearing at your expense.

That is not what you want addressed at the first hearing.

Also including a defence at this stage puts you at risk because IMHO, inexperienced and part time judges seem to do most set aside hearings.  I think they do applications and often have limited knowledge of parking cases.  Not the sort of judge you want running a mini hearing for the PCN and finding for the Claimant, thus the CCJ doesn't get set aside and you're out on your ear.

We almost never see a set aside refused.  Concentrate on the reasons why the CCJ should be set aside.  Draft Order too.

See the 6 examples linked in the NEWBIES thread.

Coupon-mad

Having said that, you should attach as an exhibit, proof of the fact you made strenuous efforts to resolve the dispute and that the landowner instructed that the PCN be cancelled.

raburgess1

Thanks, will look at the examples. The only issue is the contact I made with the landowner was via telephone call or at the reception desk when visiting so not sure how I would exhibit this as evidence.

Slainte1

raburgess1 said:

Thanks, will look at the examples. The only issue is the contact I made with the landowner was via telephone call or at the reception desk when visiting so not sure how I would exhibit this as evidence.

Maybe go back through your phone records to find the dates involved so that you can draft a witness statement of what was said in the phone call and reception visit and any follow up emails resulting from those contacts. It can be a summary of recollection of what you said. It's down to the judge if they'll accept it. Any correspondence from the leisure centre is evidence that the conversation took place. Write it now while you remember it. 
My case was dismissed in 5 minutes because of faulty particulars of claim. Stick with it and good luck. Sorry to hear of your personal issues. Sometimes the advice may seem blunt on here. It's because they've seen it before and know exactly how it should be dealt with. Believe them. They are being helpful. 

raburgess1

Thanks very much for the advice, can the witness statement and draft order be completed post submission of N244 application.  

Coupon-mad

Yes, as long as you don't hang about, you can do that, if you state in the N244 the basis of the Order you are seeking and attach a Draft Order.

AND state that a WS and supporting evidence will be filed and served once the case is allocated to the local court, but as time is of the essence (the application has to be made promptly) you have not waited. 

Why not email the landowner now and ask them to confirm the conversation that the PCNs are required to be cancelled.

ALTERNATIVELY:

Remind us, have you exhausted the option of getting the PPC to consent to the CCJ set aside?  Cheaper and quicker.

raburgess1

Coupon-mad said:

Why not email the landowner now and ask them to confirm the conversation that the PCNs are required to be cancelled.

I have confirmation from the land owner via email for this, see below direct transcript (annoyingly I paid for the fees associated with the works to process the charges back on the 18/10):

We have processed all three fines with smart parking on 09/11/23. It can take up to 10-12 weeks for them to get this processed with the other companies like the DRP. If this still occurs after the 12 week period then let us know and we will chase this again. Unfortunately there is just a delay in communication, so all we can do is wait at this point.

Coupon-mad said:

ALTERNATIVELY:

Remind us, have you exhausted the option of getting the PPC to consent to the CCJ set aside?  Cheaper and quicker.

Emailed the solicitors, working on behalf of smart parking, 12 days ago and have yet to receive anything. I did ask for a response within 7 days.