CCJ SET ASIDE - NO INFORMATION ON THE PCN IN QUESTION

bendybackpanda

Hi 

I am in the process of putting together my draft order and WS to have my CCJ set aside. 

I have been researching this forum extensively however I need help on two points. 

Firstly. I lease my car from Lex AutoLease via Jaguar. I am not the registered keeper. 

What do I write on my witness statement where most people would write :

"3)    I was the registered keeper of the vehicle at the time of the alleged offence."

Also that is assuming it was a PCN for my personal use vehicle. I regularly hire cars and vans for work purposes, however the information from the court on the CCJ and from Gladstones doesn't detail which reg vehicle this PCN was for. 

What should I do. I have already emailed to ask for this information from PCM Management and Gladstones.?

Fruitcake

For 3) you say you were the hirer/lessee at the material time and therefore deemed to be the (day-to-day) keeper as defined by the Protection of Freedoms Act 2012, Schedule 4, Paragraphs NNN.

Beware asking for too much information. If you didn't know the purpose for which the vehicle was hired, you canot know the driver's identity.
If you do find out it may have been hired for personal use, then it may be harder to truthfully say this, although you may be able to truthfully say you were not the driver. In the case where you are unsure, you can include reference to the VCS v Edward case where the judge stated it is inappropriate to assume the keeper was the driver.
This will only be of use if the NTH was not PoFA compliant, assuming you ever got a NTH.

bendybackpanda

thank you ! 
If the PCN was for our personal car then we would be the driver which is a long term lease. Its just we have no idea if it was for that car or it could have been a hired van for one or two days. If that was the case then you couldn't assume we were definitely the driver. Does that make sense ?

Debszzzz2

bendybackpanda said:

thank you ! 
If the PCN was for our personal car then we would be the driver which is a long term lease. It's just we have no idea if it was for that car or it could have been a hired van for one or two days. If that was the case then you couldn't assume we were definitely the driver. Does that make sense ?

You overthink this and you'll dob yourself in it. Is it not possible for someone with third party insurance to drive your "personal" car with your permission? The lease company have absolutely no idea who the driver is. In civil law, the keeper/hirer cannot be presumed to also be the driver.

Coupon-mad

bendybackpanda said:

Hi 

I am in the process of putting together my draft order and WS to have my CCJ set aside. 

I have been researching this forum extensively however I need help on two points. 

Firstly. I lease my car from Lex AutoLease via Jaguar. I am not the registered keeper. 

What do I write on my witness statement where most people would write :

"3)    I was the registered keeper of the vehicle at the time of the alleged offence."

Also that is assuming it was a PCN for my personal use vehicle. I regularly hire cars and vans for work purposes, however the information from the court on the CCJ and from Gladstones doesn't detail which reg vehicle this PCN was for. 

What should I do. I have already emailed to ask for this information from PCM Management and Gladstones.?

Just ask the CNBC for a copy of the POC.

Act PROMPTLY.  Phone call to the CNBC tomorrow and DON'T ask for the 'claim form'.

bendybackpanda

Thanks - we asked for th POC but it came through without a vehicle REG or PCN

bendybackpanda

My draft WS : Would you mind looking it over? 

WITNESS STATEMENT

COUNTY COURT

Claim No. K3GF7D0N

BETWEEN:

PARKING CONTROL MANAGEMENT (UK) LIMITED (Claimant)

– and –

XXX (Defendant)

_________________________________

WITNESS STATEMENT OF XXX (Defendant)

_________________________________

WITNESS STATEMENT:

1)    I am XXX. I am a Set Designer by profession and I am the DEFENDANT against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2)    This is my supporting statement to my application dated 6th March 2024 requesting:

a)    Mandatory set aside for the Default Judgement dated 12th September 2023 as it was defectively served using an old address, pursuant to CPR 13.2.

b)    An order for the original claim to be dismissed as it was not served within 4 months of the issue, pursuant to CPR 7.5 and the Claimant having failed to apply for an extension, pursuant to CPR 7.6.

c)     An order for the claimant to pay the defendant £275 as reimbursement for the set aside fee plus the cost to attend the hearing and relevant litigation in person costs.

3)    I was the hirer/lessee at the material time and therefore deemed to be the (day-to-day) keeper as defined by the Protection of Freedoms Act 2012, Schedule 4, Paragraphs NNN..

4)    I understand that the Claimant obtained a Default Judgement against me as the Defendant on 12th September 2023. I am aware that the Claimant is Parking Control Management Ltd and that the assumed claim of £293.93 is in respect of an unpaid Parking Charge Notice at my OLD residence XXX

 I have requested the details from the claimant for this PCN however the request has not been responded to. 

5)         The Defendant does not recall being served with a compliant Notice to Keeper for these charges, that complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule 4.  Out with 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.(See Exhibit E01)

(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 concluded at 35.2 and 35.3. "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 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..." Mr Edward's appeal succeeded and the Claim was dismissed.(See Exhibit E02)

6)    Since the claim form was not served at the correct address, I thus was not aware of the Default Judgement until 28th February 2023, following a notification of my credit score decreasing which made me to look at the Credit Report on 29th February 2023 which had a court judgement that I wasn’t aware of. Exhibit E03.

7)    I had moved out of that address in April 2023, 5 months before the Default Judgement may have been sent. In support of this I have provide a scanned copy of my DVLA address change confirmation (see Exhibit E04), tenancy agreement of new address (see Exhibit E05), movers bill (see Exhibit E06), alongside copies of council tax (see Exhibit E07), utility bills (see Exhibit E08 & E9) and Bank Statements (see Exhibit E20 & E11).

8)    I would submit that an address obtained on or around March 2023 is not reasonable knowledge after a significant time later (5 months) when Default Judgement was obtained.

9)    I may also state that all my records were updated promptly by the time of the claim and it would have been a matter of a phone call or an email or a letter in post or a simple search with any credit bureau agencies such as Experian etc to confirm the correct address.

10)    I believe the Claimant has behaved unreasonably in pursuing a claim against me without confirming the Defendant’s correct contact details at the time of the claim. They had also failed to explore an ‘alternative place or method’ to inform/enquire the Defendant. The Claimant had the Defendant’s personal email and telephone number from previous correspondence that they could have utilised for this. The solicitors for the Claimant also had the email and telephone number for the Defendant. (see Exhibit E12 & E13)

11)  On that basis, I believe the Claimant has not adhered to rule CPR 6.9 (3) and CPR 6.9 (4) where they had failed to show due diligence by using an address that the Defendant no longer resided. The claimant did not take reasonable steps to ascertain the correct address of my residence despite having some 5 months to conduct it. This has resulted in the claim being incorrectly served to an old address and an irregular Judgement. This leads to no service; they were not entitled to Judgement and the Court must set aside the claim as per CPR 13.2.

12) The Particulars of Claim ('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 is unable, based on the POC, to understand with certainty what case is being pursued.  The POC are inadequate, in that they fail to particularise:

(a) the contractual term(s) relied upon; 
(b) the details of any alleged breach of contract;
(c) the time when the alleged conduct occurred
and
(d) how the purported added £70 'contractual costs' arose.

13)  To submit a set aside application, I have explored all available avenues (internet and County Court services) to gain further information in this matter.

14)  I also contacted Parking Control Management Ltd asking them how I should proceed to set aside the default judgement with consent, I have emailed them for request of SAR on 4th March 2023 (see Exhibit E13).

15)  I have been therefore forced to submit my set aside application without consent.

16)  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, I have put my utmost effort to obtain necessary information and have managed to submit the case application within 2 weeks of discovering the Default Judgement.

a)     Discovered a CCJ was lodged from my credit report on 29th February 2024 (see Exhibit E02 & E03).

g)    Contacted the CCBC helpline and received default judgement details on 29th February 2024 (see Exhibit E16)

h)    Contacted Gladstone Solicitors to ask about set aside with consent.(see Exhibit E17).

i)      Submitted the request to set aside (without consent) the default judgement and fairly present my case on xx/xx/20xx.

17)  According to publicly available information, my circumstances are just one of many hundreds, if not thousands, of examples. The parking industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and their families, and the justice system across the country.

18)  In support of the request for a mandatory set-aside I will rely upon Marshall & Rankine v Maggs [2006] EWCA Civ 20 (25 January 2006), specifically paras 68 – 70 per Dyson LJ, which are inclusive of the following key points:

a)    68.  “... As a matter of the ordinary meaning of words, to say "I know X" entails the proposition that "X is true". We do not see how the phrase "last known residence" can be extended to an address at which the individual to be served has never resided.

b)    69. We accept that the rules should, if possible, be interpreted in a practical way which promotes certainty and minimises the risk of satellite litigation. This does not, however, warrant rewriting the rules so as to make them bear a meaning which they plainly do not have. Nor do we see how interpolating the words "or reasonably believed" in the phrase "the address known to be last residence of the individual" adds to certainty or reduces the risk of satellite litigation.

c)     70. It follows in our judgement that the judge was right to hold that service was not effected on the defendant's last known residence for the simple reason that he had never resided at 47 Hays Mews.”

19)  I rely upon the following authorities to support that claim is defective as it was not served to a “last known address”:

a)    HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

b)    HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)

20)  In support of the request that the claim be dismissed due to claim not being served within 4 months of issue and the claimant having failed to apply for an extension I rely again upon Marshall & Rankine v Maggs [2006] EWCA Civ 20 (25 January 2006), specifically paras 100-105 which are inclusive of the following key points:

a)    100. Service of the claim form is a crucial step in the proceedings. The rules are designed to ensure, so far as possible, that the claim form is brought to the attention of the defendant, and where he is represented, his legal representatives. Normally, this must be done within 4 months of the date of issue. CPR 7.6 permits an extension of time for service. If an application to extend time is made after the time for service has expired, the CPR 7.6(3) pre-conditions must be satisfied.

b)    101. […] If a claimant purports to serve on an address which he mistakenly believes is the last known residence of the defendant, it is therefore necessary to consider the reasonableness of his belief that the address is indeed the defendant's last known residence.

c)     102. […] In many cases, the claimant will know the address for certain. Where the position is less clear, a direct request of the defendant, or his legal representatives (if they do not have instructions to accept service) may yield an answer. Other enquiries may have to be made.

d)    103. But the present case shows how dangerous it can be to make assumptions. In our judgement, the first claimant did not have a reasonable basis for concluding that 47 Hays Mews was the defendant's last known residence. He did not know that it was his last known residence. He assumed that it was. He had no real basis for believing that it was the defendant's residence.

e)    104. […]  As the judge pointed out at para 77 of his judgement, there were other steps that the claimants could have taken if time had permitted: see para 89 above. Since the defendant was the director of a number of companies, another possible step would have been to carry out an on-line search of the Companies House directors' database.

f)     105. Exercising the discretion given by CPR 7.6(2) afresh, we conclude that this is not a case in which it would be right to extend time for service of the claim form. It follows that the claimant's appeal must be dismissed.

20)  I have also read the consultation on Default County Court Judgements by Ministry of Justice published 21 February 2018 and it makes an insightful read. Some excerpts are: ‘the claimant must consider whether there is an alternative place or method by which the claim may be served’. And, ‘Department for Communities and Local Government (DCLG) is reforming parking practices and has already taken steps to tackle rogue private parking operators, including banning wheel clamping and towing. DCLG is fully aware of the concerns related to County Court Judgements that follow parking charges and is considering how they can deliver standardised practice across all parking companies, eliminating unfair charges and reducing the instances of claims where the consumer may be unaware of a parking charge being applied’. ‘Where the claimant is unable to ascertain the defendant’s current postal address, the claimant may apply to the Court for service at an alternative place. This may include service via an email address if the claimant and defendant have been in communication via those means and the Court agrees this is appropriate’.

21)  I believe the Claimant’s practice is a clear example that parking companies’ conduct is not anymore used as a deterrent for citizens to park insensibly, majority of which are law abiding, instead an impending and instantaneous launch of legal action against most of them, leading to default Judgement by Court in 85% of the 1.1 million cases in year 2016/2017, and majority of these were parking tickets.

22)  Considering all above I submit that the Claimant has not met the service requirements of CPR 6.9 and 7.5. respectively:

a)    Service has not been effected at a valid address and,

b)    For want of valid service, these proceedings have not been served within 4 months of issue.

23)  If there was a case that the Court might not be satisfied on above grounds, I may submit that the Court should use its discretionary powers under CPR 13.3, as there is a profound prospect of defending this claim because of several reasons (draft defence can be furnished on Court’s orders).

24)  I respectfully request the Court that the Default Judgement against me should be set aside and the claim should be dismissed in its entirety. I request the Court to kindly consider the reimbursement of the fee of £275 plus the cost to attend the hearing and relevant litigation in person costs 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.

bendybackpanda

I am not sure if I have got the information about the lease / driver correct 

Coupon-mad

bendybackpanda said:

Thanks - we asked for th POC but it came through without a vehicle REG or PCN

Show us the POC

bendybackpanda

My mistake - It does say the registration. But not the PCN number 

See below :

Please see your case details below as requested.

 

Claim No: xxx

Claimant: PARKING CONTROL MANAGEMENT (UK) LIMITED

Claimant solicitor: GLADSTONES SOLICITORS LIMITED (7372)

Telephone: 0333 0230 049

Reference: 104008.47980/PARKING CON

Judgment amount: 293.93

 

Particulars of claim: THE DRIVER OF THE VEHICLE WITH REGISTRATION xxx (THE 'VEHICLE') PARKED IN BREACH OF THE TERMS OF PARKING STIPULATED ON THE SIGNAGE (THE 'CONTRACT') AT ROYAL WHARF - E16, ON 20/08/2022 THUS INCURRING THE PARKING CHARGE (THE 'PCN'). THE PCN WAS NOT PAID WITHIN 28 DAYS OF ISSUE. THE CLAIMANT CLAIMS THE UNPAID PCN FROM THE DEFENDANT AS THE DRIVER/KEEPER OF THE VEHICLE. DESPITE DEMANDS BEING MADE, THE DEFENDANT HAS FAILED TO SETTLE THEIR OUTSTANDING LIABILITY. THE CLAIMANT CLAIMS £100 FOR THE PCN, £70.00 CONTRACTUAL COSTS PURSUANT TO THE CONTRACT AND PCN TERMS AND CONDITIONS, TOGETHER WITH STATUTORY INTEREST OF £15.45 PURSUANT TO S69 OF THE COUNTY COURTS ACT 1984 AT 10.25% PER ANNUM, CONTINUING AT £0.05 PER DAY.

 

Coupon-mad

OK so you should be using Civil Enforcement v Chan as an extra exhibit and reason to strike out the entire claim and attaching the transcript for CEL v Chan.

This one has a suitable WS to adapt, which includes Chan and has a better Draft Order wording.

You don't really want to be put to the trouble of defending a badly pleaded claim you want the Judge to strike it out, like in Chan (which was also a CCJ set aside case that was heard on appeal to a Circuit Judge):

https://forums.moneysavingexpert.com/discussion/comment/80505893#Comment_80505893

Also mention that Gladstones appear to have plucked out of thin air, an irregular interest rate (10.25%).  The claim should be struck out for failing to strictly adhere to s69 of the County Courts Act 1984. You could add:

Gladstones have applied the wrong interest rate of 10.25% which they appear to have made up.  Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs (including this one) there is clearly an abuse by parking claimants who were said by the CJC to be the main perpetrators. The added fake (unincurred and disproportionate) £70 'fee' and inflated interest both appear to be for the profit of Gladstones and nothing to do with the Claimant's alleged PCN.  I hope the Judge addresses this in the final judgment, at the very least to warn or sanction Gladstones as the court sees fit.