CCJ Set Aside Following Parking Fine

Coupon-mad

Email them back and say as they have failed to respond, by their negligent and wholly unreasonable conduct, their client will now be liable for all your costs for setting aside the CCJ, including the £275 court fee and hearing attendance costs.  This N244 application will be put in in Monday morning in the absence of their client's consent Order this week.

raburgess1

I have completed the following draft order after reading the forum, does anyone have any suggestions for further amendments. For clarity, is the date of the defendant's application the issue date on the claim form and is the judgement date the date of the CCJ? I am currently writing up my witness statement which I will add once completed.

In terms of the N244 application I have amended :

3. What order are you asking the court to make and why?
THAT THE DEFAULT JUDGEMENT DATED ../../2023 BE SET ASIDE AS THE PARKING CHARGE HAS BEEN REMOVED BY THE LAND OWNER (BRISTOL CITY COUNCIL).

and

10. What information will you be relying on, in support of your application?
A WRITTEN STATEMENT AND SUPPORTING EVIDENCE WILL BE FIELD AND SERVED ONCE THE CASE IS ALLOCATED TO THE LOCAL COURT.

Upon reading the defendant’s application dated ../../2023

It is ordered that:

1.    The judgment dated ../../2023 be set aside.

2.    Costs to be reserved.

3.    Unless the Claimant serves a copy of the claim form on the Defendant by 4pm on XX/XX/XX paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £275 and the claim shall be struck out.

4.    If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on XX/XX/XX.

5.    Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £275 plus the Defendant's costs for attending the hearing.

6.    All enforcement be put on hold pending the outcome of the application.

Coupon-mad

"Costs to be reserved."

No.  Look at more recent examples!

raburgess1

Have reworded point 2 in draft order to:

2. The Claimant to pay the Defendant’s costs of this application to the sum of £275.

Is it suitable to suggest Witness Statement to follow in section 10 of the N244 app form.

Coupon-mad

You should only have three points in the order not six

raburgess1

Ok sorry about this. I've updated based on review of the latest CCJ posts within the forum.

1. The default judgment dated (inset date) be set aside. 

2. The claim struck out as the claim form having not been served within 4 months of issue

3. The Claimant do pay the Defendants costs of this application of £275 on an indemnity basis.

From further reading, I've amended section 3 of the N244 application to the below:

"This is a mandatory set aside situation pursuant to CPR 13.2 but the Defendant has also acted promptly and has good prospects of defending any claim from this Claimant. Therefore, CPR 13.3 also applies, to further support the application to set aside the CCJ. "

Section 10 will state as per the below, my only query is which box should I tick:

"A written statement and supporting evidence will be filed and served once the case is allocated to the local court." 

Thanks again for the assitance.

Coupon-mad

This isn't true. It was served:

2. The claim struck out as the claim form having not been served within 4 months of issue

raburgess1

I'm hoping this is the correct alternative, taken this from a thread which is similar to my scenario.

1. The Judgment by default entered against the Defendant on XX/XX/2023 is hereby set aside. 

2. The claim should also be struck out as for want of compliant Particulars of Claim, in view of the recent persuasive appeal case of CEL v Chan; another generic parking claim where the Particulars of Claim were equally defective. 

3. Costs of the application be paid by the Claimant to the Defendant in the sum of £275. 

If the above is correct are my section 3 and 10 comment also applicable.

S3 "This is a mandatory set aside situation pursuant to CPR 13.2 but the Defendant has also acted promptly and has good prospects of defending any claim from this Claimant. Therefore, CPR 13.3 also applies, to further support the application to set aside the CCJ. "

S10 "A written statement and supporting evidence will be filed and served once the case is allocated to the local court."

I would like to get this sent off tomorrow and will issue my draft WS at some point in the week once i've had enough time to study the forums and responses.

Coupon-mad

That is a better Draft Order but I think you should be asking for an order only under CPR 13.3.

I don't see that it meets CPR 13.2 so I would concentrate on CPR 13.3 and make it clear and obvious to the judge that you tick all the boxes with various 'other good reasons' to set aside this CCJ.

raburgess1

Would it be more beneficial to write a condensed version of my below email and add to section 3. Then add WS and supporting evidence will be filed and served once the case is allocated to the local court.

raburgess1 said:

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.