CCJ SET ASIDE - NO INFORMATION ON THE PCN IN QUESTION

bendybackpanda

Amazing thank you ! 

What do I have to email to Gladstones / PCM 

bendybackpanda

I haven’t ever received any communication from them regarding the court hearing is that normal? 

However we did receive a letter this morning from Gladstones which is very bizarre as it was sent to our new address which they now have, but if you were unsure if you had the correct address as the letter says why would you post the letter and not email. They have our email address and if it was the wrong address what use would this be???

Coupon-mad

Coupon-mad said:

And you should file & serve with your skelly and transcripts, your costs assessment because you've presumably spent £275 on the application plus printing costs and loss of leave for attending this hearing.

I already advised above what to send with your skelly. Did you find the Carr and Akande transcripts?

Your draft skelly refers to the wrong CoP if the C is PCM. They aren't in the BPA AOS!  Please don't ask which one they are in (there are only two).

And re Gladstones latest letter, just play their game. If they want you to confirm your new address then confirm it and say 'you would have found this out, had you bothered to do a 28 pence CRA soft trace as required in the CoP written by your ex Director Will Hurley'.

Nothing goes to PCM obviously. When a party uses a solicitor you don't write to the party themselves.

bendybackpanda

I have just received their witness statement for the case .....

bendybackpanda

1. I am a Paralegal in the employment of Gladstones Solicitors Limited (my ‘Firm’) based at their offices, at the address stated above.

2. My Firm are instructed by the aforementioned Claimant, in relation to this claim. I have conduct of this action, subject to the supervision of my Principle. The matters to which I refer are within my own knowledge, or based on information provided to me by my client within the course of my instruction, save where expressly stated to the contrary, and are true to the best of my knowledge, information and belief. I am duly authorised by the Claimant to make this statement on its behalf.

3. The Defendant has made an application to set aside the judgement in default obtained on the 12th September 2023 in relation to this claim.

4. The Defendant prays in aid of the application:

i. That they were not living at the address where the Claim Form was served, at the time that proceedings were issued.

5. The Claimant wishes to oppose the application and has provided instructions to my Firm to provide a witness statement in the following terms.

6. Due to the Parking Charge Notice (PCN) to which this claim relates remaining unpaid, the Claimant referred the matter to my Firm for the purposes of recovery on the 9th June 2023.

7. The case management system operated by my Firm confirms that acting in accordance with the clients instructions a ‘Letter Before Claim.’ was sent to the Defendant at xxx (the “service address”); this being the address supplied by the hire company transferring liability for the PCN as being the address of the Defendant named herein at the time of the contravention.

8. When no response was received to that correspondence my Firm carried out a trace via Experian, in order to establish whether an alternative address could be ascertained, in order to satisfy the requirements for service of a Claim Form as prescribed by 6.9 CPR.  The results confirmed that there was recent account activity at the address and therefore there were no grounds to believe that the Defendant was no longer resident at the address.

9. My Firm therefore submitted a claim to the County Court Business Centre on the 9th August 2023. The address provided for service of the Claim Form was the service address, this being the usual or last known residence of the Defendant for the purposes of CPR 6.9.

10. The Claimant therefore submits that the Claim Form can be deemed to be properly served.

11. In the event that notwithstanding the above the court still wishes to consider whether or not to exercise its discretion with a view to setting the judgement aside, the Claimant puts the Defendant to full proof that they have acted promptly and without delay in making this application and that they have a reasonable prospect of successfully defending the Claim if the matter is returned to Claim stage.

12. In respect of the first limb of the above criteria, Judgment was entered on the 12th September 2023 and the Defendant’s application was not submitted until 11th March 2023, some 7 months later.  The Claimant relies upon Hart Investments v Fidler [2006] HH Judge Coulson held “a 59 day delay in making application was very much the outer limit of what could possibly be accepted” and Khan v Edgbaston Holdings [2007] where “30 days was deemed too long”.  On this basis, the Claimant respectfully submits the Defendant has not acted promptly in making the application and for this reason, the application ought to be struck out.

13. Should the application not be struck out, in considering the second limb of the above criteria the Claimant invites the Honourable to court to consider the following.

14. Within this statement, I make reference to various documents. The Claimant avers that these documents support its claim. These documents are now produced by me to the court as exhibits and are specifically referred to within the statement by reference to their exhibit numbers. Any reference to an exhibit number within this witness statement is a reference to the corresponding exhibit unless otherwise expressed to the contrary.

bendybackpanda

15. The Claimant is and was at all material times involved in the management and enforcement of parking on private land. The Claimant achieves this by way of a variety of schemes including, but not limited to, warden controlled sites and Automatic Number Plate Recognition technology.

16. The Claimant does so in accordance with the authority granted to them under the terms of a Landholder agreement. In accordance with the terms of the Landholder agreement the Claimant is authorised by the landowner via their managing agents to manage and enforce parking on the land in question. The Claimant does so in return for a right to raise charges from the users of vehicles who infringe the ‘regulations’ (a relevant obligation) which relates to the entitlement to use the site. As a result, the Claimant does issue PCNs in relation to vehicles parked in breach of the terms and conditions, on sites that they manage and do have the right, under Schedule 4 of the Protection of Freedoms Act 2012 to pursue an unpaid parking charge against the Registered Keeper of a vehicle, where specific criteria are met.

17. Notwithstanding the above, the Claimant relies upon the decision in One Parking Solution Ltd v Wilshaw [2021] whereby it was found that it is not necessary for the Claimant to prove the Landowner’s authority to constitute a valid cause of action to recover the PCN; what is required is proof that there is a binding contract between the Claimant and the Defendant, meaning the Signs at the Site.  Further, that the contract between the Claimant and the Landowner does not affect the validity of any contract between the Claimant and the Defendant.

18. The Claimant is and was at all material times a member of an accredited Trade Association and was awarded Approved Operator Status, through its full compliance with their Code of Practice.

19. The Claimant provides, manages and enforces private parking at the land located at XXX (the ‘Site’).  Now shown at Exhibit reference GS1 is a copy of the agreement between the landowner and the Claimant which sets out, inter alia, the Claimant’s standing and rights to manage and enforce the regulations in situ at the Site.

20. The “regulations” referred to above (the ‘Terms and Conditions’) are displayed on large highly prominent signs erected by the Claimant at various points throughout out the Site. Exhibit reference GS2 The signs as to their size, content, font, location and number conforms to the Claimant’s Accredited Trade Associations Code of Practice.  The Terms and Conditions of the Site, inter alia, express the following conditions for any motorist using the Site:

 UNNUMBERED BAYS – VEHICLES MUST REGISTER FOR A VALID PARKING SESSION

21. Users of the Site are informed that the site is Private Property and that Terms and Conditions apply. If a user of the site is unsure about the Terms and Conditions for using the site, they should contact the Claimant (a contact phone number is prominently displayed on the signage) or they should refrain from parking.

22. The signs are clearly displayed throughout the Site as evidenced by the attached site plan, which also clearly shows the location and layout of the site in question. Exhibit reference GS3 The driver would have had the opportunity to read and understand them when entering and then parking at the Site. An objective observer would consider this action to have been done in acceptance of the Terms and Conditions. It is the signage that forms the basis of the contract between the driver and the Claimant (the ‘Contract’).

23. The signage also states that any breach of the terms and conditions of using the site will result in the issuing of a Parking Charge in the sum of £100.00, plus additional costs if the same remains unpaid.  The signage situated across the Site forms a unilateral offer to anyone wishing to park their vehicle at the location. As the offer is a unilateral one, there is no need for the motorist to communicate their acceptance, their performance of parking (as opposed to leaving) whether in accordance with the Terms and Conditions or not, is the act of acceptance.  The driver, by entering and proceeding to park the vehicle at the Site, wilfully agreed to abide by the Terms and Conditions, including those terms applicable to any breach.
THE BREACH

24. On the 20th August 2022, vehicle registration number xxx was observed to be parked in breach of the terms and conditions applicable at the Site. The photographic evidence shoes the vehicle to be parked and unattended at the site. Exhibit reference GS4 The Claimant’s records show that no data was entered on the day that matched the Defendant’s VRN representing registration of a valid parking session.  Exhibit reference GS5

25. A PCN was affixed to the vehicle windscreen at the time of the contravention. Exhibit reference GS6 This notice detailed the contravention and gave the recipient the following options:

i. To pay the £100.00 parking charge within 28 days (discounted to £60.00 if paid within 14 days).

ii. If the recipient wished to contest the charge to lodge an appeal with the Parking Operator within 21 days of receipt of the notice. If the internal appeal was unsuccessful the recipient was informed that they still had the right to lodge an appeal with the independent adjudicators.

26. As no payment was received and no appeal was lodged the Claimant obtained the details of the Vehicle’s registered keeper from the DVLA, under the terms of the KADOE. A postal PCN was issued to the Registered Keeper, a hire company, on the 22nd September 2022.  Exhibit reference GS7  The Registered Keeper transferred liability to the Defendant herein on the 3rd October 2022, confirming the Defendant’s address as the Service Address. Exhibit reference GS8

27. The Claimant issued a postal PCN to the Defendant on the 5th October 2022 as they were the person named by the Registered Keeper as being the hirer at the time of the contravention. Exhibit reference GS9.

28. That PCN gave the Registered Keeper three options:

i. To pay the PCN within 28 days.

ii. If they were not the driver to provide the Claimant with the driver’s full name and a serviceable address, in order that liability could be transferred; and

iii. To appeal the PCN initially via the Claimants internal appeals process and then if dissatisfied by the outcome to appeal the PCN to the IAS.

29. When no response was received, the Claimant followed this up by sending a liability notice to the Defendant on the 21st October 2022.  Exhibit reference GS10

30. The Defendant’s application is rejected in its entirety and the Claimant responds below.

a. The Claim Form is deemed served at the last known address pursuant to CPR 6.9.  The Claimant carried out their obligations under CPR to ascertain the Defendant’s current address. The trace results only provided one address for the Defendant and confirmed there was recent financial activity at that address for the Defendant.  No other address being available, the Clamant had no option but to serve the claim at the last known address.

b. The DVLA address change is irrelevant given the vehicle in question was a hire vehicle thus the Defendant was not the registered keeper.

c. The Defendant avers he moved from his last known address on the 5th April 2023.  The Honourable Courts attention is drawn to the fact that, the Defendant was a resident at the site in question at the time of issuance of the PCN.  The PCN was affixed to the vehicle on the day of the event and thus, the Defendant had knowledge of the PCN and charge.  The Notice to Hirer was subsequently sent to the Defendant at the correct address and prior to the date he avers he moved. It is submitted the Defendant was in receipt of the PCN and was aware the same remained unpaid. With this knowledge, it is further submitted that the Defendant was under a duty to notify the Claimant of his intention to change address.  In failing to do so, it appears the Defendant sought to avoid payment of the charge.  The Defendant’s allegation that the Claimant has behaved unreasonably is therefore denied.  Notwithstanding that the Defendant had the opportunity to appeal the PCN in the event he intended to dispute the claim.

31. In light of the above, the Defendant’s allegation as to no service within 4 months is denied; the claim form was correctly served pursuant to CPR 6.9 after the Claimant having carried out all reasonable steps to obtain a current address for the Defendant.  Any DVLA enquiry being irrelevant as the vehicle in question was a hire vehicle.

bendybackpanda

32. The Defendant has indicated in correspondence to Gladstones Solicitors that: “he has an account with Gladstones and has always paid his PCNs in a timely manner” and “he is shocked to see this PCN has not been added onto his account given his name is already registered with your company”.

33. The above two statements are denied.  Gladstones do not hold accounts for Defendants.  Whilst Defendants are able to register on Gladstones’ website in respect of an individual file, once that specific matter is concluded, the file is closed.

34. Gladstones’ records show that the Defendant sent an email to them on the 29th February 2024 wherein, the Defendant provided his current address details, the Judgment in this case having already been entered. Gladstones held three files for the Defendant being the current claim and two additional separate matters which were are pre-litigation stage.  Subsequently, the Defendant made payment in respect of the two pre-litigation files on the 17th September 2024.  Thereafter, those files were closed.

35. The Claimant prays in aid of its case, the contents of this statement together with the attached exhibits. The Claimant’s position is straightforward. They were authorised to operate a parking management scheme on the land in question. There was clear and unambiguous signage in place at the site, which formed the basis of the contract. The driver of the Vehicle parked in breach of those Terms and Conditions, thereby entering into the Contract which is now breached owing to a failure to make payment. The driver of the Vehicle failed to respond to the PCN affixed to the Vehicle within the given time scales. Therefore, as the identity of the driver was not known to the Claimant, they were entitled to obtain the Registered Keepers’ details from the DVLA who subsequently transferred liability to the Defendant herein.

36. It is submitted that the evidence filed in support of the Claimants case is extremely compelling and that there is little or no prospect of the Defendant being able to successfully defend the claim.

37. It is not the Claimants intention to actively participate in the Defendant’s application to set the judgement aside by attending the hearing or instructing an advocate as this will involve additional costs, costs which it would be unfair to expect the Claimant to meet, given that they have acted both reasonably and proportionately to date and have complied with the pre-action protocol and CPR in relation to the service of the Claim Form. It is also the Claimants position that any costs associated with making the application, as far as the Defendant is concerned, should be met by them.

38. Without prejudice to the previous, in the event that the court is minded to grant the Defendants application then upon the judgement being set aside the Claimant would invite the court to give standard directions regarding the progress of the Claim moving forward as it is the Claimants intention to continue with the claim.

39. Should the court elect to proceed as described above, the Claimant respectfully requests the following Order be made;

a. The judgment entered on 12th September 2023 be and is hereby set aside;

b. Permission for the Claimant is granted to serve an amended Claim Form on the Defendant within 28 days of service of this Order; OR

c. The Witness Statement dated 18th September 2024 stand as the Particulars of Claim and service of the Claim be dispensed with;

d. The Defendant must file and serve a Defence to the Claim within 28 days of service of the amended Claim Form;

e. Upon receipt of the above, the Claim be allocated to the Small Claims Track with standards directions, to be heard on the first available date within 56 days; and

f. There be no Order as to Costs.

Coupon-mad

As normal for Gladstones CCJ cases.

You already know what to do. Nobody's advice has changed. Use VCS v Carr.

But the below is worrying; why are you paying private PCNs you don't have to pay and could easily have defended?

32. The Defendant has indicated in correspondence to Gladstones Solicitors that: “he has an account with Gladstones and has always paid his PCNs in a timely manner” and “he is shocked to see this PCN has not been added onto his account given his name is already registered with your company”.

Subsequently, the Defendant made payment in respect of the two pre-litigation files on the 17th September 2024.

bendybackpanda

Thank you. Is it worrying because it will damage the case for this to be set aside. I was never disputing the ticket itself only that I had no idea about it ! 

Coupon-mad

No. Worrying because you paid private PCNs as if they were real fines, seemingly without question.

Do the skelly with VCS v Carr which shows your Judge the Court f Appeal's view about claims served to an old address.