Classic CCJ from CEL - Defence post set aside

tuna460

Draft Witness Statement

Civil Enforcement Limited

V

Mr XXXX

 

Case number  

XXXXX

WITNESS STATEMENT  

I, XXXX, of Address B, will say as follows:  

 

1.     I am the Defendant in this matter and I make this witness statement in support of my application to set aside the County Court Judgment (CCJ) entered against me on XX/XX/XXXX, in default due to a defective service of Claim.  

2.     I was not aware of the claim made against me until I received a letter from the Claimant’s legal team on XX/XX/XXXX advising that the Claimant had obtained a default CCJ against me, relating to an alleged parking event in June 2022 (SEE EXHIBIT XX-01)

3.     The Claimant served the claim to an old address at which I no longer reside which is a clear breach of both the CPRs and the industry Code of Practice. These facts and issues are explained further, below. 

4.     The Claimant had a duty to take reasonable steps to check for the correct address, in accordance with the British Parking Association (BPA) Code of Practice (CoP) 24.1c and CPR 6.9.  

5.     As the claim form was improperly served to an old address, the Claimant is in breach of the BPA CoP and for the sake of the mere 28 pence 'soft trace' that the BPA CoP requires, the claim could and should have been properly served.

6.     As such, CPR 13.2 applies (mandatory CCJ set aside) and the Claimant should be ordered to pay all the Defendant's costs.

7.     I have not received any claim form or detailed particulars of the claim regarding this matter until I became aware as per paragraph 2 above. 

8.     Whilst I am unsure which date the claim was issued, it has been more than four months since the CCJ was issued, during which time I have not been aware of the claim or the CCJ. As per CPR 7.5, the claim should now be dismissed.

9.     I believe that I have a strong defence to the claim, and should it not be dismissed despite the wealth of case law below that supports the claim being dismissed at the set aside hearing, I should (at the very least) have the opportunity to defend it properly.  My application relies upon the 'mandatory set aside' rule in CPR 13.2 (in the alternative, 13.3).

10. I have set out the grounds for my application in the attached draft order.  

THE CLAIMANT FAILED TO SERVE THE CLAIM  

11.     I understand that the Claimant obtained a Default Judgment against me as the Defendant on XX/XX/XXXX. I am aware that the Claimant is Civil Enforcement Limited and that the assumed claim is in respect of an unpaid Parking Charge Notice.  

12.     CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."  As I have not had any correspondence in relation to this matter, other than the brief case details emailed to me on XX/XX/XXXX from the courts, I am unsure of the specific dates that the claim was made. Nonetheless, it is clear that the Claimant, having obtained a previous address from the DVLA and having received no response, did not perform the requisite "reasonable diligence" required to find my correct address to serve the claim form in. Had reasonable diligence been taken, my personal details are found in multiple public sources, such as the electoral register, HMRC. The claimant did not have any contact with the defendant, and thus should have considered they had obtained incorrect details. It appears that the claimant continued to issue correspondence to the incorrect address intentionally, in line with the concerns raised by the government regarding this abhorrent industry (Relevant case law cited below in paragraphs 18 - 30).  

13.     The claim form was not served at my current address, thus I was not aware of the Default Judgment until I received the letter mentioned in paragraph 2 on XX/XX/XXXX. This is a breach of CPR 13.2 (a) as the claim form was never served to my current address. Due to this, the judgement was wrongly entered as I was unable to submit an acknowledgement of service in the absence of notification of the case (CPR 13.3).

14.     The address on the claim is Address A I moved from this address to my current address at Address B in July 2022. In support of this, I can provide documentation showing my updated address, including tenancy agreement and utility bills. (SEE EXHIBIT XX-02)  

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

THE BRITISH PARKING ASSOCIATION CODE OF PRACTICE WAS NOT FOLLOWED 

16.     The Claimant is a member of the British Parking Association (the ‘BPA’) and is bound by the BPA’s Code of Practice which gives voice to CPR 6.9(3) in the following terms:

17.     24.1c 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.

DVLA ADDRESS DATA MAY NOT BE RELIABLE  

18.     DVLA data is provided for a single (very limited) reason, so a parking operator can invite the registered keeper to name the driver or pay the invoice or inform the registered keeper they will be liable if not, and notify of appeal rights.  

19.     The system, called 'KADOE' (Keeper On Date of Event), is a brief 'snapshot in time' address to enable a parking firm to send a Notice to the registered keeper. Operators are only allowed to ask the DVLA once, hence the code of practice requires reasonable steps are taken to check address details are current before litigation. Even if a motorist later updates a VC5 logbook with a new address (or if the DVLA fails to process a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.  

20.     There is no safe presumption that a DVLA vehicle address is a valid address where a Defendant can be served. The KADOE address is not provided as a 'court claim service address' and should not be relied upon, as it is only an address where the vehicle was kept at a historical point in time (which may not be where the keeper lives; it is where the car was 'kept').  

21.     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 £303 from the claimant should this request be successful.  

22.     There is a wealth of case law making reference to the failures of parking companies to correctly ascertain the addresses of defendants. Of note:  

23.     In Collier v Williams [2006] 1 WLR 1945 (CA) LJ Dyson said  

24.     "What state of mind in the server is connoted by the words "last known"? … As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word "known". In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, i.e. knowledge which he could have acquired exercising reasonable diligence. We arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments."  

25.     The same sentiment was echoed by:  

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

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

28. In Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012) it would appear that obtaining the information from a source that an individual is required by law to keep updated is adequate knowledge. However, I would submit that it is incumbent to have recent knowledge and not outdated knowledge as HHJ Hacon put it in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)   

29. As it was put in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016) by LJ McCombe  

30. “If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all."  

THE CLAIM HAS EXPIRED UNSERVED

I HEREBY CHALLENGE THE JURISDICTION OF THE COURT TO HEAR IT NOW (EFFECTIVELY THAT WOULD MEAN DISPENSING WITH SERVICE). THERE ARE NO EXCEPTIONAL CIRCUMSTANCES TO SUPPORT THE VERY LIMITED COURT DISCRETION TO RETROSPECTIVELY VALIDATE DEFECTIVE SERVICE BY RESURRECTING AN EXPIRED AND UNSERVED (AND HOPELESS) CLAIM.

31.     Service of the claim form on an old address constitutes defective service and the claim has expired unserved. The Claimant currently has no claim because it was not properly served within 4 months and is time barred.

32.     Continuing an expired unserved claim more than 4 months after it was raised (but never properly served) is impossible under any rule of law or practice (CPR 7.5).  

33.     The Claimant is wholly responsible for failing to serve the claim correctly within the 4 months (as required by CPR 7.5) and as a result this claim has expired unserved. 

34.     The Claimant should not be given extra opportunities to waste the Court’s time after failing to follow pre-action protocols for debt claims, breaching the BPA code of practice and the CPRs about taking 'reasonable steps' (CPR 6.9) to check a Defendant's address.  

35.     If the Claimant believes they still have a claim then filing afresh is the only way forward. The Claimant may send a ‘Letter Before Claim’ to the right address, this time following the pre-action protocol for debt claims. The court is reminded that this Defendant has received nothing to build any defence on. No claim form and no detailed particulars of the claim have ever been received at the Defendant’s current address.  

36.     This claim should be struck out as more than 4 months have passed (CPR 7.5 refers) from issue of proceedings XX/XX/XXXX and service of the claim was defective (i.e. it was never served).  

37.     A Court's discretionary power to validate a defectively served claim is very limited, and only applies where there is ‘good reason’ for the court to exercise the power so conferred.  There is no ‘good reason’ to retrospectively validate the claimants’ service under Rule 6.15.  Further, whilst Rule 6.16 does create a power for a court to dispense with service of the claim form, this only applies in 'exceptional circumstances' and this does not apply in my case.

38.     Tests were established by Lord Sumption’s analysis in Barton v Wright Hassall LLP [2018] 1 WLR 1119 and I have answered those questions in respect of my own case below:

39.     Did the claimant take reasonable steps to effect service in accordance with the rules?

40. In my case, no.  An old DVLA address obtained months or years earlier is not a reliable address for service. Indeed the DVLA do not sell 'keeper data' with any warranty that it can be used or relied upon for service of court papers to a motorist; it is merely a snapshot in time of where a vehicle was once registered.

41. Addresses change frequently and the parking industry and DVLA know this; hence the International British Parking Association’s Code of Practice requires steps to be taken to ascertain any new address prior to litigation. Parking operators are not allowed to rely upon DVLA data for litigation purposes and must undertake a Credit Reference Agency 'soft trace' before issuing a claim.

42. Were the defendants aware of the contents of the claim form at the time when the time for service expired?

43. In my case, no. I have only just received the particulars from the CNBC (requested in May 2024 – SEE EXHIBIT XX-03) and I knew nothing about any outstanding parking charge.

44. What, if any, prejudice would the defendants suffer by the retrospective validation of a non-compliant service of the claim form, bearing in mind what the defendants knew about its contents?

45. The above answer is repeated. It would cause huge detriment for me to have to spend time and money to defend a meritless parking charge.

46.  The decision in Good Law Project v (1) Secretary of State for Health and Social Care and (2) Pharmaceuticals Direct Limited [2021] EWHC 1782 (TCC) emphasised the importance of serving a claim form correctly on time. In that case sending the claim form to the wrong email address (the claim form was sent to the solicitors, not the designated email address) did not constitute valid service.

47.  In Pitalia & Anor v NHS England [2023] EWCA Civ 657 the Court of Appeal held that a claimant could not resist its claim being struck out as a result of its failure to serve the claim form within the four month period in CPR 7.5. This was the case even though the strike out application had not been made correctly.

48.  In IDEAL SHOPPING DIRECT LTD & ORS V MASTERCARD INCORPORATED & ORS [2022] EWCA CIV 14. the Court of Appeal upheld a High Court decision that the claimant had not validly served proceedings and there were no good reasons or exceptional circumstances for the court to indulge the erring Claimant by granting a retrospective order validating the attempted service.

49.  Held: CPR 3.10 (General power to rectify following error of procedure) did not enable the court to rectify ineffective service of the claim form and remedy the claimants’ error. That rule should not be used to get around service requirements and the claimants also did not satisfy the requirements under CPR 6.15 or 6.16. Following the approach in Piepenbrock v Associated Newspapers Ltd [2020] EWHC 1708 (QB) ([69]), having considered all the circumstances under rule 6.15, and finding no ‘good reason’, in Ideal Shopping Direct there were similarly no grounds to find the ‘exceptional circumstances’ required under rule 6.16. 

tuna460

FURTHER RELEVANT CASE LAW ON EXPIRED UNSERVED CLAIMS

50.     There are several authorities, including the judgment in Boxwood [2021] EWHC 947 (TCC), which are reminders of the strictness of the requirements of CPR 7.6 and how difficult it is to use other parts of the Civil Procedure Rules to rectify a failure to serve the claim form within the requisite period: “A claimant is not entitled to rely on the wide, general powers under CPR 3.10 or CPR 3.9 to circumvent the specific conditions set out in CPR 7.6 (3) for extending the period for service of a claim form.”  

51.     In the judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch), the claimant was one day late in properly serving the Particulars of Claim to the Defendant and the claimant’s application for relief from sanctions was refused. In section 65 of the transcript of the trial, Deputy Master Marsh stated, “The defendants were entitled to know within the four month period specified in the CPR whether a claim had been made against them and to be able to understand that claim. [...] Unless an extension of time is granted, the claim will cease to have any validity and will be struck out."  

52.     In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB), the High Court refused the Claimant’s application for a retrospective extension of time to serve a Claim Form after the Claimant failed to demonstrate they took all reasonable steps to serve the Claim form in the period of its validity.  

53.     “Ultimately, the problem was that the Claimant had made no attempt to serve in accordance with the rules. [...] Although I sympathise with the Claimant that the consequences for him of the error of not validly serving the Claim Form will be serious, there is nothing that really separates his case from many others who have made similar mistakes when attempting to serve a Claim Form. [...] I am afraid, in this case, the responsibility for the failure validly to serve the Claim Form rests solely with the Claimant’s side [...]  

54.     In light of my conclusions above, having refused the applications made under CPR 7.6, 6.15 and 6.16, there is not a residual self-standing power available under CPR 3.9 to relieve the claimant of the “sanction” that, as a result of his failure to validly serve the Claim Form during its period of validity, it has now lapsed. The term “sanction” is inapt because it would, in theory, be possible for the Claimant to issue and validly serve a fresh Claim Form. The obstacle standing in the way of a claim is not any sanction imposed by the Court but the fact that the limitation period for defamation and malicious falsehood has expired. [...]  

55.     Finally, the Claimant seeks an order under CPR 3.10 remedying his error in not validly serving the Claim Form. The Defendants submit that CPR 3.10 cannot rescue the Claimant. This general provision does not enable the Court to do what CPR 7.6(3) forbids: Vinos -v- Marks & Spencer plc [2001] 3 All ER 784; [2001] CP Rep 12 [20]. [...]  

56.     The Claim Form was not served during its period of validity. In consequence, the Court has no jurisdiction over the Claimant’s claim. It follows that I should also formally dismiss the Claimant’s application for summary judgment.”  

57.     In Vinos v Marks & Spencer plc [2001] 3 All ER 784, the Court of Appeal considered whether any extension of time should be granted under CPR 7.6 in circumstances where the defendant had been notified of the issue of a claim form but the claim form had not been served within four months as required by CPR 7.5 and the application was made after expiry of that period. The court refused to grant relief on the basis that it did not have the power to do so.  

58.      CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgement of service only if at the date on which judgment is entered (a) the defendant has not filed an acknowledgement of service or a defence to the claim (or any part of the claim); and (b) the relevant time for doing so has expired. In this case, the claim form was not validly served in [month/year] due to failure to check for a current address (CPR 6.9 (3)), therefore the time limit for acknowledging service has not begun. As the time limit has not begun it cannot have expired. As the time limit has not expired the condition in CPR 12.3(1)(b) has not been satisfied. This results in a mandatory set aside (CPR 13.2). It follows that if a claim is set aside for failure to be served, then the claim cannot be resurrected and served again after 4 months has passed from the date of filing pursuant to CPR 7.5(1). This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016):  

59.  “Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgement of service only if (a) the defendant has not filed an acknowledgement of service or a defence and (b) the relevant time for doing so has expired (my italics). I accept Mr McLaren's argument that when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgement of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).  

60.  I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgement of service when "any of the conditions in rule 12.3(1) …was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.  

61.  This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgement. He is simply not in default at all.”  

CLAIMS SHOULD BE STRUCK OUT  

62.     In the alternative: the claim should be struck out regardless of the above other abusive conduct, because the POC fail to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5.

63.     I have only just, in May 2024, seen the generic POC, which is reproduced below:

CLAIM FOR MONEY RELATING TO A PARKING CHARGE FOR BREACH OF CONTRACT TERMS/CONDITIONS(TCS) FOR PARKING IN PRIVATE CAR PARK (CP) MANAGED BY CLAIMANT. DRIVERS MAY ONLY PARK PURSUANT TO TCS OF USE DISPLAYED IN CP AND AGREED UPONENTRY/PARKING. ANPR CAMERAS OR MANUAL PATROLSMONITOR VEHICLES ENTERING/EXITING THE CP AND TC BREACHES. CHARGES OF GBP170.00 CLAIMED. VIOLATION DATE: 30/06/2022 PAYMENT DUE DATE: 29/07/2022 TIME IN: XX:XX TIME OUT: XX:XX PCN: REFXXXXX VEHICLE REG MARK: XXXX CAR PARK:- XXXX TOTAL DUE- GBP170.00 (PAY:WWW.CE-SERVICE.CO.UK OR 01158225020) THE CLAIMANT CLAIMS THE SUM OF GBP188.82 FOR THE UNPAID PARKING CHARGE INC GBP18.82 INTEREST UNDER S.69 OF THE CCA 1984 RATE: 8.00% PA FROM DUE DATE TO- 17/11/23 SAME RATE TO JUDGMENT OR SOONER PAYMENT AT DAILY RATE OF- GBP0.04 TOTAL DEBT AND INTEREST DUE- GBP188.82

64.     In view of those woeful POC I am confident in relying upon a recent persuasive Appeal judgment as authority to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims). Dismissing this meritless claim is the correct course, with the Overriding Objective in mind.

65.     Bulk litigators 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 authority:

66.      In Civil Enforcement Limited v Chan (Ref. E7GM9W44) heard on 15th August 2023 and which was also about a N244 'parking CCJ' set aside application (wrong refused at the first hearing), HHJ Murch, sitting at Luton County Court, 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'.

67.      The same is true in this case and in view of the Chan judgment and dozens of similar decisions both at hearings and at allocation stage (SEE EXHIBIT XX-04 - Chan and other Judgments) the Court should strike out the claim, using its powers pursuant to CPR 3.4.

68.      This claim should also be struck out for failing to strictly adhere to s69 of the County Courts Act 1984, in that CEL have applied the wrong interest rate of 8.0% 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 inflated interest both appears to be for the profit of CEL and nothing to do with the Claimant's alleged PCN.  I hope the court formally warns or sanctions CEL as the court sees fit.  I see this as 'vexatious litigation' and there has been a totally unreasonable course of litigation conduct from start to finish.  I contend that I must succeed in getting all my costs awarded, including the court fees (£303 for the application) and for travel to and attendance at the application hearing(s).

SET ASIDE APPLICATION WAS MADE PROMPTLY

69.       I discovered a CCJ had been obtained against me after receiving a letter from the Claimant’s legal team at the end of May. On the XXth May 2024 I contacted the Civil National Business Centre to obtain relevant information relating to this default judgement. On the XX June 2024 I wrote to Civil Enforcement Limited offering to jointly apply to set aside the judgment. Despite allowing them a reasonable amount of time to reply, no reasonable response was received so on the XXth June 2024, I have submitted my case in order to set-aside this judgement and fairly present my case (See Exhibit XX-05)  

70.      Considering all of the above, I was unable to defend myself against this claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside, the claim struck out, and I ask the Court to kindly consider the reimbursement of the fee of £303 from the claimant should this request be successful.  

Statement of truth:  

71. 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:  Mr XXXXX

tuna460

Draft Order:

CLAIM No: XXXX
BETWEEN:
CIVIL ENFORCEMENT LIMITED (Claimant)
-- and --
XXXXX (Defendant)
______________________________________________
DRAFT ORDER
______________________________________________
IT IS ORDERED THAT:

 

UPON considering the application of the Defendant to set aside the Judgment by default entered on XX/XX/XXXX;

AND UPON reading the evidence in support of the application;

AND UPON the court taking note that the Claimant was not entitled to default judgment, having failed to serve on Defendant's usual residential address;

AND UPON more than 4 months having passed (CPR 7.5 refers) from issue of proceedings [date]

IT IS ORDERED:

1.      The Judgment by default entered against the Defendant on [date] is hereby set aside.

2.      The claim be struck out as more than 4 months has passed from issue of proceedings [date].

3.      Costs of the application be paid by the Claimant to the Defendant in the sum of £303.

tuna460

Above is my draft WS and draft order.

With the following exhibits:

01 – Letter from DCBL informing about CCJ

02 – Tenancy agreement and utility bills

03 – POC emailed from CNBC

04 – Chan and other Judgments

05 – Email to CEL offering to set aside with consent

Some questions I still have:

1. Para 36 - Is issue of proceedings the date of issue?

2. Para 45 - Other examples explain why the claim against them is meritless (proof of payment/permit etc) Is there anything I can write, or leave as is, or remove this line?

3. Para 68 - Was copied from an example where the interest rate applied was 10.25%. Mine is 8%, is this still incorrect and 'made up'? And is it correct to say its CEL who are applying the interest?
S.69 mentions "simple interest, at such rate as the court thinks fit or as may be prescribed", "interest under this section may be calculated at different rates in respect of different periods"

4. Para 69 - CEL did reply with their previously mentioned bad offer. Currently I have not replied to this, do I need to reject it before I file N244. As such am I fine to say I didn't receive a reasonable response by them?

Any other feedback greatly appreciated

KeithP

What is the CJC that you mention in para 68?

In paragraph 48 the case name is in capitals, but in surrounding paragraphs the case name is in lowercase italics. But I note that even italics are not used for case names in paragraphs 50 onwards. Lack of consistency.

Coupon-mad

CJC:

https://www.judiciary.uk/related-offices-and-bodies/advisory-bodies/cjc/#:~:text=The%20primary%20role%20of%20the,Rule%20Committee%20on%20civil%20matters.

Para 68 - Was copied from an example where the interest rate applied was 10.25%. Mine is 8%, is this still incorrect and 'made up'? 

No.

Do I need to reject it before I file N244. As such am I fine to say I didn't receive a reasonable response by them?

It is probably best to reject it now.

tuna460

Okay thank you, formatting changed. Paragraph 68 removed.

Is there anything I should add to Paragraph 45 now, or need I only worry about defending the claim IF it is not struck out based on CEL vs Chan.

Will reject CEL's offer before submitting N244

Coupon-mad

That all looks good. Nothing to add now.

LDast

It may be worth highlighting another abuse of process in that the calculation of interest in their claim is wrong.

8%/year flat rate interest on £100 from due date 29/07/2022 to 17/11/2023 = 476 days (1.303 years) x 0.08 x £100 = £10.42. It would appear they are trying to charge you interest on the £70 "contractual charges/damages". Even if they were allowed to do that, the interest on £170 would only come to £17.72. It may only be £1.10 over but it is still an abuse of process.

Something along the following lines might be in order to add to your WS:

Upon reviewing the claim, you have identified several discrepancies, including an unjustified debt recovery charge of £70 added by a third-party debt collector, not a party to the original contract allegedly breached. The claimant is incorrectly claiming interest on both the original sum of £100 and this additional £70 charge, resulting in an inflated claim amount.

Paragraph 4(5) of the Protection of Freedoms Act 2012 (PoFA) clearly stipulates that a creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking charges as they stood when the notice to the driver was issued. The original Parking Charge Notice (PCN) issued by the claimant was for £100. The claimant's current claim is for £170, which exceeds the amount of the unpaid parking charges as stated in the original notice. The Claimant’s attempt to claim an unlawful amount constitutes an abuse of process and should not be allowed to proceed.

Include the calculations shown above to highlight the errors.

Highlight that the overcharge, whilst seemingly minimal, affects the total amount claimed and raises concerns about the accuracy and good faith of the claimant’s case. Contend that the claimant's overcharge of interest constitutes an abuse of process. By inflating the interest amount, the claimant is misusing the court process to claim more than what is legally and factually justified. This undermines the integrity of the legal process and places an undue burden on the defendant.

State that you understand that the claim made by the claimant is supported by a statement of truth, asserting the accuracy of the information presented. Providing inaccurate information in such a statement is also an abuse of process.

The claimant's actions breach several Civil Procedure Rules (CPRs):

• CPR 1.1 - The Overriding Objective: The claimant's actions do not promote fairness or proportionality.
• CPR 3.4(2) - Striking Out a Statement of Case: The inclusion of the unjustified charge amounts to an abuse of the court's process.
• CPR 22.1 - Statements of Truth: The inflated claim is a breach of the requirement for accuracy in statements of truth.

tuna460

That's all great information thank you I will include it. Just want to confirm that the original PCN would be £100, and that they have added exactly £70 for 'damages'?

As my POC just states a flat £170 without a breakdown of where that numer came from sometimes included in other POC.

Whilst in their 'offer' to set aside with consent they asked me to pay £95 which included the original PCN which they quoted as £60, plus £35 for their 'administrative costs'.

I assume there's not really a reason why these are different, just them trying to tempt me? Just want to get these numbers correct.