Surprise CCJ - DCBL (as agents of MET Parking) Gatwick Airport KFC overstay

geg1995

Hello all, 

Hoping to get some assistance on setting aside a CCJ for an ANPR overstay at KFC Gatwick airport years ago! The timing is incredibly frustrating as I have, after many long years of saving, started looking to get myself onto the property ladder, which will only become more difficult with this stain on my credit report.

After doing some reading of this forum and with thanks to the heroic contributions of Coupoun_mad, Umkomaas, Johnersh - to name a few - I think I have got the bones of something together. It still needs fleshing out though!

I think the usual rules apply with this one with a few exceptions. The first being that I have actually moved back to the address (Address of the initial NTK (image below) letter AND the address of my DVLA records, rather than a completely new address.... So, unsure whether that will help or hinder, as I've seen a lot of the reasoning for setting aside in cases like this relying on those records being a poor indicator of the defendant’s current address. That said, I did update the electoral roll to reflect my move to Address B towards the end of May, and I have a letter confirming my entry onto the roll dated 7th June 2023, so it feels like I would have been easily traceable to Address B through a soft search.

So... I am fairly confident in a "4 months dead" approach for setting aside, if I have interpreted my forum research correctly. But please tell me if I am wrong?

The next exception, and what I am less certain of, is my standing in the event of a re-hearing as I did make some half-arsed appeals way back in 2019 which were far from textbook. Critically though, I never identified myself, or anybody else, as the driver.

I initially appealed the NTK using MET parking’s online appeals portal, but I honestly can’t remember precisely what grounds I appealed on – annoyingly, I can’t find any record of what I sent at that stage. I think I may have given some defences on behalf of the driver, speaking from the third-person, that the car park was incredibly busy that day (hottest day on record since 2003) and as a result the actual length of parking was less than 60 minutes, but not 100% sure. I think there may have also been some talk of no keeper liability, it’s all lost to the mists of time now.

From there, MET gave me the standard copy & paste rejection, that didn’t deal with the facts of my appeal at all and referred only to inadequate signage, which I’m sure I didn’t mention at all. At the same time, they also enrolled me into a POPLA appeal.

At that point, I should have cracked on with the POPLA appeal after doing some research on forums like this and probably got a win, but instead I wrote an outraged, pompous and arrogant letter (image below) that MET had prejudiced things by identifying me as the defendant and triggering a POPLA appeal despite clearly not reckoning with the facts of my initial appeal. So, I demanded that things go back to square one.

They didn’t turn back the clock of course, and the POPLA appeal window timed out. I then never heard from them again until I started to receive letters at Address A from DCBL in 2022 acting on their behalf to collect the “debt”. I ignored them, perhaps foolishly, knowing I would probably have something of a leg to stand on if it ever got to a small claims level.

Key dates;

1. Date of parking "contravention" - 25th July 2019 
2. NTK issuance - 7th August 2019 (14 days later, judging by my personal messages I reckon I actually received this on the 19th August 2019). Addressed to Address B
3. Moved from Address A to Address B - 15 April 2023
4. CCJ Default at CNBC - 16th November 2023 
5. Debt recovery letter from DCBL to new address, Address B - 24 January 2024

Presumably somewhere between 3 and 4 a summons was issued to Address A.

Other factors;

1.I currently split my time between two addresses, but one of which is Address B and “lasting” of the two – it’s the one I conduct most of my personal admin from.

2.I haven’t contacted anybody or any organisation about this since becoming aware of the judgement, though it seems like it might be a good idea to get the POC from the CNBC?

Would appreciate any help at all! I’ve tried my best to study the forums in depth to get a head start but certain there will be gaps!

This is my draft WS so far;

WITNESS STATEMENT OF DEFENDANT

1.         I am XXXX of Address B, and I am the Defendant in this matter. 

2.         This is my supporting statement to my application dated xx March 2024 requesting to:

a.         Set aside the default judgment dated 16 November 2023 as it was not properly served at my current address.

b.         Order for the original claim to be dismissed.

c.         Order for the Claimant to pay the Defendant £275 as reimbursement for the set aside fee.

DEFAULT JUDGMENT

3.         I was the registered keeper of the vehicle at the time of the alleged event.

4.         I understand that the Claimant obtained a Default Judgment against me as the Defendant on 16 November 2023. I am aware that the Claimant is Direct Collection Bailiffs  Ltd and that the assumed claim is in respect of an unpaid Parking Charge Notice from 25th July 2019.

5.         The claim form was not served at my current address, and I was therefore unaware of the Default County Court Judgment against me until I received a letter from Direct Collection Bailiffs Ltd dated 24 January 2024 to my current address. 

6.         The address on the claim is Address A. I moved to CITY on 15 April 2023, and split my time between two addresses the permanent of the two being Address B. In support of this, I attach a record of electoral registration confirmation from xxxx City Council, a recent bank statement and my current driving license, which are all linked to this address.

7.         In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

  

SEQUENCE OF RECENT EVENTS

8.         I first discovered there was a default County Court Judgment against me when I received a letter from Direct Collection Bailiffs Ltd on 1 February 2024. The letter is dated 24 January 2023. 

9.         On 4 February 2023, I purchased the County Court Judgment report from the Register of Judgments, Orders and Fines for England and Wales in relation to claim XXXXX to confirm that this CCJ was linked to my name. I note that the judgment is registered to my former address, Address A

12.      On XX March 2024 I submitted my case in order to set-aside this judgment and fairly present my case.

13.      I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details at the time of the claim. I was therefore denied the opportunity to defend the claim. 

14.      On that basis, I believe the Claimant has not adhered to Civil Procedure Rules (CPR) 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The Claimant did not take reasonable steps to ascertain the address of my current residence. This has led to the claim being incorrectly served to an old address and an irregular judgment.

15.      Under CPR 13.2 The court must set aside a judgment entered under part 12 if judgment was wrongly entered.  Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside.

16.      Under Clause 24.1 C of the BPA Approved Operator Scheme Code of Practice Version 8 (January 2020), “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.” The Claimant failed to take reasonable endeavours to ascertain my correct current address prior to issuing proceedings and is therefore in breach of the Code of Practice. 

17.       The Defendant was 'there to be found' for the sake of a 29 pence bulk Experian trace or similar very inexpensive and immediate credit reference agency address check. I would then have been notified of this judgment and could have taken action to prevent it. 

18. Additionally, I was “there to be found” under the exact same address of the initial “notice to keeper” document, as issued on 7th August 2019.

18.       Given that more than 4 months has passed from issue of proceedings and service of the claim was defective (i.e. it was never served) the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process.  The Defendant has no details of this claim, therefore, if the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct address for service for this Defendant, which is Address B

19.      According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

20.      Furthermore, former Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. 

The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses." The Minister added, "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.” 

21.      In the alternative, CPR 13.3 applies and there are very good reasons to set aside this exaggerated claim, which includes a disproportionate and indeed, false 'debt recovery' sum.  In fact, no debt recovery occurred nor cost the Claimant any money whatsoever, in addition to £100 parking charge.  The Government has described the false fixed 'fee' of £70 as 'designed to extort money from motorists' in the new statutory Code of Practice last February and has banned it.  The Defendant has good prospects of defending a claim, if served with one, but has seen no evidence, basis nor particulars of claim and the Claimant should be required to file afresh, if they believe they have a cause of action. 

22.      Considering the above, I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside, and I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful.

 

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 __________

DRAFT ORDER
CLAIM No: XXXXXX
BETWEEN:
Direct Collection Bailiffs  Ltd (Claimant)
-- and --
XXXXX (Defendant)

UPON reading the defendant’s application dated XX February 2023

IT IS ORDERED THAT:

1. The default judgment dated 16 November 2023 be set aside. 

2. The claim struck out due to 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.

Nellymoser

Please @geg1995 support this.

So many people don't receive 1st and/or 2nd pcn but the £170 payment due letter often manages to drop through letter boxes. PPCs always claim discounted/full rate pcns/court claim letters were sent as dated though they offer no evidence to prove this.

Since they CHOOSE NOT to provide evidence of their posting we must continue to press gov to ensure they do and see it included in the new Parking CoP. Please sign/share @jmccabe petition closes 22nd june 2024.

https://petition.parliament.uk/petitions/652355
Require communications from Private Parking companies to be traceable/trackable

Thank you. Good luck getting your CCJ set aside.

troublemaker22

The claimant is not DCBL. The claimant is Met Parking Services Ltd. 

I’m on holiday and only looking briefly at the forum on my phone during idle moments. So I haven’t read and absorbed your full story. But I can see that you’re planning to ask the court to order the claimant (Met Parking, not DCBL) to pay the court fee, which suggests that you’ve gathered the facts, analysed them and concluded that they acted wrongfully by directing the claim form to an incorrect address. If that’s the case, I think you should offer the claimant the opportunity to deal with it by means of a simple consent order which is a half page document that takes 10 minutes to draft, requires no witness statement or hearing and involves a court fee (which the claimant should pay) of £108 instead of £275.

You can see a letter I drafted for this situation at https://forums.moneysavingexpert.com/discussion/6508757/out-of-the-blue-ccj-debt-letter-for-an-alleged-pcn-dcbl-uk-parking-control-ltd#latest

On the other hand, if the claimant acted properly in selecting your address for service, pause before going ahead with your plan to set the judgment aside the hard way with a witness statement and a hearing. In those circumstances I wouldn’t expect the court to order the claimant to reimburse the costs. You might be be better off approaching the claimant or their solicitors (but not the bailiff company) offering to pay the judgment and the £108 court fee in return for a quick consent order with no witness statement or hearing. 

Debszzzz2

FWIW, the NtK was sent a day too late to comply with PoFA. Not sure if the Gatwick KFC car park is on airport land or not but the dates on the NtK do not allow MET to hold the keeper liable unless they admitted to also being the driver.

geg1995

troublemaker22 said:

The claimant is not DCBL. The claimant is Met Parking Services Ltd. 

I’m on holiday and only looking briefly at the forum on my phone during idle moments. So I haven’t read and absorbed your full story. But I can see that you’re planning to ask the court to order the claimant (Met Parking, not DCBL) to pay the court fee, which suggests that you’ve gathered the facts, analysed them and concluded that they acted wrongfully by directing the claim form to an incorrect address. If that’s the case, I think you should offer the claimant the opportunity to deal with it by means of a simple consent order which is a half page document that takes 10 minutes to draft, requires no witness statement or hearing and involves a court fee (which the claimant should pay) of £108 instead of £275.

You can see a letter I drafted for this situation at https://forums.moneysavingexpert.com/discussion/6508757/out-of-the-blue-ccj-debt-letter-for-an-alleged-pcn-dcbl-uk-parking-control-ltd#latest

On the other hand, if the claimant acted properly in selecting your address for service, pause before going ahead with your plan to set the judgment aside the hard way with a witness statement and a hearing. In those circumstances I wouldn’t expect the court to order the claimant to reimburse the costs. You might be be better off approaching the claimant or their solicitors (but not the bailiff company) offering to pay the judgment and the £108 court fee in return for a quick consent order with no witness statement or hearing. 

@troublemaker22 thanks for taking the time out of your holiday to have a read! 

I hadn't considered that option but it sounds like a much less onerous way of dealing with this! My number one concern is simply to remove the judgement from my file. Would a consent order result in the CCJ being quashed? Or would I still need to follow the CCJ set aside process, with the consent order as a mechanism to make redundant the need for any re-hearing of the case? 

Thanks again.

geg1995

Debszzzz2 said:

FWIW, the NtK was sent a day too late to comply with PoFA. Not sure if the Gatwick KFC car park is on airport land or not but the dates on the NtK do not allow MET to hold the keeper liable unless they admitted to also being the driver.

Thanks @Debszzzz2. I wondered about that too but as it was issued on the 14th day, does it not just about comply with PoFA? 

Will certainly look into the airport land point, thanks.

troublemaker22

A consent order setting the judgment aside does what it says on the tin. It sets the judgment aside. 

There are 2 routes to getting a CCJ set aside. If both parties agree, they submit a consent order which is rubber stamped by the court without a hearing or a witness statement. The court fee is £108. 

The other route is for the defendant to pay to make an application on their own which might well be opposed by the claimant. The defendant has to pay a court fee of £275 and file a witness statement explaining why the judgment should be set aside. The case is decided at a hearing by a judge. If the judge is persuaded that the CCJ should be set aside they might also order the claimant to pay the defendant’s costs if it was the claimant’s fault that the defendant didn’t receive the claim form. 

If it was the claimant’s fault it can be a good idea to approach the claimant and give them the opportunity to pay £108 for a consent order instead of £275 plus other costs for an application to be decided at a hearing. 

If it was not the claimant’s fault they should nonetheless be motivated to agree to a consent order as part of a deal where the defendant agrees to pay the judgment debt and the £108 court fee. 

geg1995

Thanks @troublemaker22, that is helpful.

In terms of arranging such a thing, I gather I would need to reach out to DCBL/MET/Both? 

I've read from other posts on here that the amenities at Gatwick are indeed Airport land and therefore not "relevant land" under POFA. To date I have not indentified a driver in this case so I think this gives a near certainty to the claim being dismissed?

Would sending the below along with the argument in my first post to DCBL/MET trigger them to consider a consent order? (I have taken bits and bobs from other similar cases in the order dismissing claim)

 The facts known to the Defendant:

1. The facts in this defence come from the Defendant's own knowledge and honest belief. It is admitted that the Defendant was the registered keeper of the vehicle.

2. The case relates to an alleged parking contravention at KFC Gatwick Airport, which is an establishment within the boundaries of Gatwick Airport.

3. The first correspondence received by the defendant as the registered keeper of the vehicle in question was the “Notice to Registered Keeper” document, with date of issuance 7 August 2019. The date of alleged contravention was the 25th of July, amounting to over 14 days of time (including 2 days to allow for service) between the date of contravention and the Notice to Registered Keeper. The defendant recalls that the “Notice to Registered Keeper” document did not arrive until 19 August 2019 and can support this claim with an image sent to a loved one on the day of its arrival in the post.

4. MET Parking’s initial “Notice to Registered Keeper” does not refer to the Protection of Freedoms Act 2012.

5.The defendant initially appealed via MET Parking’s online appeal portal as the registered keeper, which was rejected with an identikit letter template that did not engage with the facts or wording of the initial appeal. No driver was identified in the initial appeal, nor was a driver identified in subsequent correspondence with MET Parking.

Order dismissing the claim:

 

5. Airport land is not 'relevant land' as it is already covered by statutory bylaws and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As the registered keeper, the Defendant is not legally liable as this Act does not apply on this land. This Claimant cannot invoke 'keeper liability' and have simply aimed a speculative claim at a registered keeper which is wholly unreasonable conduct in a case where they know they cannot rely upon the provisions of the POFA. 

5.  Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence:

(i). In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but did not. Mr Smith's appeal was allowed and Excel's claim was dismissed.

(ii). In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan held:

5.1. "The finding I make is consistent with the underlying purpose of Schedule 4 to the Protection of Freedoms Act, namely, that it was necessary to bring in keeper liability pursuant to that legislation, because liability could not be established.  If this were not the case car parking companies could simply have obtained the details of the registered keeper, launched proceedings and waited to see whether or not there was a positive defence put forward, and in the absence of a positive defence they would have succeeded. If the court took such an approach, it would have been imposing a duty on the registered keeper, to identify the driver or at least set out a positive case in order to avoid responsibility himself. In my judgment that was not the position before ... [the POFA] ... was in force; 

5.2.  my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and 

5.3.  it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..."

6.  Mr Edward's appeal succeeded and the Claim was dismissed.  In the extant case, this Claimant has launched 'roboclaim' cut & paste proceedings saying vaguely that the Defendant was 'keeper and/or driver' and waited to see if the registered keeper has the nous to research the POFA and to meaningfully defend, or if they could gain a default CCJ (as happens in 90% of small claims).  It is a lucrative gamble with the odds of wrongful success heavily weighted in parking operators' favour, but this is plainly an abuse of the court process.  This baseless claim demonstrates precisely the behaviour that HHJ Gargan identified in 35.1. This claim has no basis in law and neither the court nor the Defendant should be troubled with a hearing.

 

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 __________

DRAFT ORDER
CLAIM No: xxxxxxxx
BETWEEN:
MET Parking Ltd (Claimant)
-- and --
MR xxxxxx (Defendant)

UPON reading the defendant’s application dated XX February 2023

IT IS ORDERED THAT:

1. The default judgment dated 16 November 2023 be set aside. 

2. The claim struck out due to the claim not meeting the requirements of “keeper liability” on the grounds that the site of “contravention”, Gatwick Airport, is not “relevant land” under the Protection of Freedoms Act.

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

Coupon-mad

Would sending the below along with the argument in my first post to DCBL/MET trigger them to consider a consent order?

No.          

Debszzzz2

If MET have not invoked keeper liability through PoFA in the NtK then there is no point harping on about PoFA compliance or not in the NtK as you already know that the location was not on relevant land. What has non-PoFA compliance got to do with the reason for a set aside?