Time Sensitive - Alleged Overstay, ECP, 2 PCNs, Defence Drafted, Request for Feedback

Coupon-mad

Why the overstay? Was there a disabled person in the vehicle?

This is wrong.  It's not 'by consent' unless the other side agree:

 BY CONSENT ORDER 

Ronald157

Thanks for getting back to me @Coupon-mad.

There was no disabled passenger in the vehicle.

Overstay had occured due to extended use of the fitness facilities in the retail park.

I have since read recent WSs and have drafted mine up as follows: 

https://docs.google.com/document/d/1ETEPcHkgGuAPWMtE1_dFwztAc7mnbWwG/edit?usp=sharing&ouid=101618244118784029289&rtpof=true&sd=true

Please take the time to read through it if you could be so kind.

I went to the same car park this evening to establish perspective on the effect that low visibility has on observing any written terms and conditions. Looking at those photos (exhibits 3-6), I suppose it goes without saying that I'd not noticed any of this signage until the first PCN came through the post in January. The crux of my defence would rely on the fact that no contract had been established between the defendant and ECP and that is a very genuine conviction.

My defence also relies on the fact that the POC are inadequate as the stated 'breaches' refer to parking 'without a valid permit or authority' in a car park where neither a valid permit could be purchased, nor any authority could be granted, perhaps rendering those alleged breaches redundant and irrelevant to the breaches laid out in the schedule/table of parking charges.

Ronald157

As for the draft order, I've corected it to the following:

UPON the application of the Defendant to set aside a default judgment dated XX/11/2024, received on XX/11/2024 at an updated address.

 

IT IS ORDERED THAT:

 

1. The judgment dated 12/11/2024 be set aside.

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

 

Dated this 2nd day of December 2024

 

Signed ………………….………………….		Signed ………………….………………….
For and on behalf of the Claimant		The Defendant

 

If you have any suggestions, please do send them my way, it would be much appreciated. I have an acute fear that I'm doing something remarkably unwise  

Coupon-mad

That's not the usual draft Order seen on other CC set aside threads and it doesn't point the way ahead.

Read a few recent CCJ set aside threads by searching the forum.  There was one last month by Brightonrock123 and loads before that.

Ronald157

@Coupon-mad Thanks for getting back to me - I've added a few bits in now from the Brightonrock123 order and excluded the premises of the order unrelated to my application:

UPON considering the application of the Defendant to set aside the Judgment entered on XXX;

 

AND UPON reading the evidence in support of the application;

 

AND UPON the court finding that the Particulars of Claim fail to comply with CPR 16.4(1)(a) by lacking a concise statement of facts and therefore do not constitute a valid cause of action;

 

IT IS ORDERED THAT:

 

1. The default judgment dated XXX ( CLAIM No: XXX) be set aside. 

 

2. The claim is struck out on the grounds that the Particulars of Claim fail to comply with CPR 16.4(1)(a) and do not provide a concise statement of facts necessary to establish a cause of action.

 

Dated this 3rd day of December 2024

 

Signed ………………….………………….		Signed ………………….………………….
For and on behalf of the Claimant		The Defendant

Ronald157

As for the N244 application, I have answered question 3

"What order are you asking the court to make and why?" as:

The default judgment dated XXX be set aside. The claim is struck out on the grounds that the Particulars of Claim fail to comply with CPR 16.4(1)(a) and do not provide a concise statement of facts necessary to establish a cause of action.

Should I add something here about my non-attendance? Or can I leave it like this?

After reading Brightonrock's WS it's clear to me that I need to provide a justification for my poor conduct in  informing neither the court nor the claimant of my new address. Unlike other cases, I don't have CPR 13.2 or 13.3 to fall back and instead I need to provide good reason for the set aside. 

However, so long as the application for the set aside is supported by evidence (which it is), the defendant has acted promptly (I believe I have - address details changed with the court as soon as I'd spoken with them, order received 26/11, N244 intended to be sent over before 05/12), the defendant has a good reason for not having attended the trial (i.e., I did not receive any notice of hearing dates, not out of malice), and I have a reasonable prospect of success at the trial (I believe I do with regards to CPR 16.4(1)(a)). 

Does this all sound right or is there something I'm missing? 

Coupon-mad

Yes it sounds right.

Are the POC so woeful that they should be struck out though?

Also prove that you DID tell the Court Service your address and honestly believed they were the admin centre for the claim.  Attach evidence of the house move too.

Ronald157

Are they? So paragraphs 4 and 5 of the POC state that "the Defendant parked at the site 2 times without a valid permit or authority", which is not the breach they are alleging in their table of contraventions which state that "your vehicle was parked longer than the maximum period allowed", and so the surely this would be obfuscating the breach claimed and not presenting a concise statement of facts? Also, no entry or exit times, no duration specified.

The parking charge is also singular rather than plural implying one parking charge rather than two.

I can definitely prove that I sent a change of address over to the CNBC by email and genuinely believed that that was the only step necessary to inform the court proceedings of where to send important documents to like hearing dates.

I have a V5C and bank statements going to my new address at the time, but not a tenancy agreement, although I am waiting on that.

Ronald157

Currently updating my WS to include all of these details and I'll post this with my DO as soon as I can. Thanks for the help so far.

If the POC seem to look OK, please tell me! There are photographs of it further up the thread. However, I'm not relying on that argument as the bedrock of my defence, but it would be supportive.

Coupon-mad

So paragraphs 4 and 5 of the POC state that "the Defendant parked at the site 2 times without a valid permit or authority", which is not the breach they are alleging in their table of contraventions which state that "your vehicle was parked longer than the maximum period allowed"

and so the surely this would be obfuscating the breach claimed and not presenting a concise statement of facts? Also, no entry or exit times, no duration specified. 

The parking charge is also singular rather than plural implying one parking charge rather than two. 

I agree with you. Woefully pleaded claim and a change of reason /alleged breach in their Table.