Classic CCJ from Civil Enforcement Ltd

tuna460

Hi,

Letter arrived last week from DCBL informing me of a CCJ against me and that I owe around £300, obviously this was the first I had heard about it and was led to this forum. 

Phoning CNBC this week, I found out the offence was in a fast food car park 30/06/22 (Particulars of claim below).

I remember that I was a customer, but I was also killing some time so ended up staying inside the restaurant for 1hr 40mins. I guess since I was a customer I just never thought about checking the parking restrictions.

Like many others all the correspondence was sent to my old address which coincidentally I moved out of that very day 30/06/22. (Officially moved in to new address 01/07/22)

Date of issue: 20/11/23
Date of judgement: 14/12/23

I believe I can get this set aside following the very similar cases on this forum. My questions are:

1. Is my case strong enough?

2. How relevant is the original offence? As I don't actually have proof I was a customer and even if I did it seems I simply overstayed. If my set aside is successful, do I still need to pay whatever the original ticket would have been or is it dismissed?


Assuming my set aside case is strong enough, I have drafted an email to send to CEL below. A check would be appreciated. I'm not sure if it is correct to say point 3 as i'm not sure if I could have defended the claim with evidence.

I'm aware promptness is key, however I have had my final exams for my Master's degree this week. So have only been able to research this forum and phone CNBC so far. Exams are finished now so I can crack on with this.

I believe I should send to CEL ASAP, should I cc DCBL?

Thank you very much.



Particulars of claim:

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: XXXX

TIME OUT: XXXX

PCN: REFXXXXX

VEHICLE REG MARK: XXXXX

CAR PARK:- XXXXX

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

URGENT

Dear Sirs,

CIVIL ENFORCEMENT LIMITED (THE ‘CLAIMANT’)  V [                        ] CLAIM REFERENCE [             ]

I recently received the attached letter dated [                      ] 2024 from Direct Collections Bailiffs Limited (‘DCBL’). This came as a tremendous shock as it is the first and only communication I have received from the Claimant or any organisation representing the Claimant in relation to this claim.   

I made immediate enquiries of the CNBC from which I was able to establish that:

1.       the claim relates to an alleged parking event in June 2022;

2.       the claim form was sent to an old address at which I no longer reside; and

3.       if I had been given the opportunity to do so, I would have successfully defended the claim.

I did not receive any pre-claim correspondence, not even a letter of claim as required by the PAP. Nor did I receive the claim form or any particulars of claim and was thus deprived of the ability to defend the claim. The Claimant is well aware that people move home from time to time. They also know that I did not respond to any communications sent to me at my old address.

This situation is explicitly dealt with in the Civil Procedure Rules which provide at CPR 6.9(3):

 (3) Where a claimant has reason to believe that the address of the defendant … is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

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:

 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.

 If the Claimant had taken the actions required by the Civil Procedure Rules and the Code of Practice, my current address would have been found easily, which is obviously what DCBL did before sending their letter dated [                ].  If those actions had been performed at the correct time rather than after judgment, I would not have been deprived of the ability to defend the claim.

By reason of the Claimant’s breach of the Civil Procedure Rules, which amounts to an abuse of the process of the Court, the claim form was never properly served and the judgment must be set aside at the Claimant’s expense and the claim dismissed because it is now too late for the particulars of claim to be re-served.

In view of the foregoing, I invite the Claimant to join with me in an application to set aside the judgment and dismiss the claim, with the Claimant paying the court fee and no order as to costs.

Please respond to the above offer as soon as possible so that, if the offer is acceptable to the Claimant, we can work together to right the wrong that the Claimant has done to me.

To give you a reasonable time to take instructions and for us to agree a suite of documents for the Court, I am willing to defer making a unilateral application to set aside the judgment until 4 pm on 10 June 2024. If a joint application has not been made by that time, I intend to apply to the Court unilaterally for an order setting the judgment aside, striking out the particulars of claim, dismissing the claim and awarding costs against the Claimant on a full indemnity basis.

Pease respond by immediate return.

Yours faithfully,

Gr1pr

1) claims that went to the old address and didn't TRACE the new or current address are usually allowed, so normally its strong enough for the set aside to be granted at the set aside hearing, which usually puts the original claim back in play 

2) there was no "offence" , just an alleged breach of the parking contract formed by the signage on site and agreed by the driver by performance , a contravention of a civil contract 

The relevant BPA CoP at the time gives a MINIMUM grace period in section 13 , probably the BPA CoP version 8 in this case , section 13 

I have no legal training so will not advise you on the set aside order etc, just usual points I may observe as a lay person 

Umkomaas

Mandatory set asides - CPR 13.2, if not,
Credible defence - CPR 13.3

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

LDast

That suggested letter is good. However, be prepared to file your own N244 as you are dealing with a particularly vexatious and intellectually malnourished bunch of ex-clamper scammers.

Even if they do respond and ask you to agree to their draft consent order, it is likely to put you at a disadvantage as to costs. Show us the response before agreeing to anything.

The consent order should include the following points:

1.       The Judgment by default entered against the Defendant on 14th December 2023 is hereby set aside.

2.       Costs of the application be paid by the Claimant.

Coupon-mad

should I cc DCBL?

No. Ignore them completely.

That POC tells us this was an in-house claim by CEL, so email CEL only.

And don't hang about waiting too long. Expect to have to do a £303 CCJ set aside N244 application. But expect the court to order that CEL pay you that fee back.

Start preparing your WS and draft Order. Copy the recent good one by @Zbubuman  

tuna460

Great thanks all.

So CEL did reply,

Dear Sir/Madam,

 

Following the violation, on 04/07/2022, the DVLA provided us with your name and address as the registered keeper of the vehicle. The address provided by the DVLA was that of XXXXX. As you are no doubt aware, pursuant to s18 of the Road Vehicles (Registration and Licensing) Regulations 2002, it is the motorist’s duty to ensure that the DVLA is immediately informed of any change of address.

 

We will consent to setting aside judgment (to remove it from your record) and to discontinue the claim against you, if you agree to pay the original £60.00 parking charge plus the administration costs and fees we have incurred in trying to recover payment of the PCN, limited to £35.00, making a total of £95.00. Each party will bear its own costs of this application. 

I imagine this means I would have to pay £108 fee and this would not be paid back to me? 

So I think this is a bad offer. Is there any way I can counter to have them bear the costs, or is my best course of action to set aside without consent?

Have I judged this correctly?

Thanks

Coupon-mad

It's £119 fee now.  £303 without consent.

It went up 5 weeks ago.

So, IMHO, what they propose is they'll produce a badly-written (in our experience) consent order and once you've paid them £95 they don't care whether a Judge accepts that consent order or not.

There's no guarantee a Judge would. You could find yourself up the creek without a paddle and £95 down, stuck with a CCJ.

I'd do a £303 set aside 'without consent' this week,  including asking for that fee and your hearing attendance costs to be paid back by CEL and the whole claim to be struck out.

See the CCJ thread by @Zbubuman as that one has extra case law not seen in other examples.

LDast

It is a bad offer because they are asking you to pay £130 for their mistake.

Because you don't agree to their offer, you will have to file the N244 and pay the £303 fee for a hearing. Your order will need to ask the court for that £303 to be paid by the Claimant in the event that your set aside is successful. As you are requesting a mandatory set aside under CPR 13.2, there is no reason that it should be unsuccessful.

However, there is a slight risk that the judge could decide that the cost of that application be reserved if the claim is not thrown out for other reasons that we will come to. What that means that whilst the CCJ should be set aside because it was issued to the wrong address (argued in your WS), the judge may decide that the Claimant can re-serve the claim and it will have to be defended at another hearing. This risk there is that if the claim is then lost, you could be liable for the £303 and the sum of the claim itself.

tuna460

Ok so I will proceed with the N244 - do I need to formally reject CEL's offer?

 the judge may decide that the Claimant can re-serve the claim 

Regarding the slight risk of this, is there any outcome I can reach that would result in the original PCN being served properly and me having a choice to either pay it or appeal? As opposed to me having to defend a claim and risk losing that? It seems unfair that I should have to defend a claim and go to court rather than defend a PCN.

As had they sent the original PCN to my correct address, that's the position I would have been in. Can I acknowledge within the set aside process that I would be happy with this or is that unadvisable?

I only ask as I don't think I really have any evidence to support my case should I have to defend a reinstated claim, given it has been 2 years since the alleged offence.

Coupon-mad

Is there any outcome I can reach that would result in the original PCN being served properly and me having a choice to either pay it or appeal?

No

 Can I acknowledge within the set aside process that I would be happy with this or is that unadvisable?

No.  Do NOT say you'd pay the PCN. Your stance is always that you:

1. Expect the court to follow the persuasive appeal case of CEL v Chan & strike the claim out as per all the cases in the 'judgments' link (in the NEWBIES thread 2nd post exhibits a-f list. It is 'c' on that list. Take a look now).

If not:

2.  In the alternative, you wish to defend the case (usually mainly on unclear/wordy small-print on CEL signs).  The fact it was 2 years ago is irrelevant. You don't need evidence to defend it, but you will have exhibits (again, see the a-f list of typical exhibits we use).

All CEL defence cases are certainly potentially winnable.  And there's no risk because if you lost (rare) you'd pay. No CCJ.

Most likely scenario if you exhibit CEL v Chan is that the entire claim is struck out when your CCJ is set aside (at the same hearing) when you will also ask for your £303 back from CEL, because they clearly breached the BPA CoP and the CPRs by failing to bother to spend 28 pence on a bulk soft trace with a Credit ref agency.  

That conduct MUST surely cross the threshold of 'unreasonable behaviour' pursuant to CPR 27.14(2)(g), meaning you get all your costs.

tuna460

Great thank you, will update when I have drafted the documents