Judgement for Claimant (in default) - BW Legal - Residential parking

pbizzle12

Hi all

Firstly I wanted to say thank you to all of the contributors - especially those on the Newbies and template defence threads - your input has been invaluable in helping me navigate the process and defending claims thus far.

I started a new thread for this question because I couldn't find another thread with my particular circumstances despite a number of searches, however, possible I may have missed it.

Circumstances:
I followed all the steps in the process set out in this forum - submitted AoS, filed defence using the template defence and completed DQ all on time and with no issues. In July 2024 I received a "General Form of Judgment or Order" letter from the County Court to which my case had been transferred. This letter stated:

"BEFORE [judge and court details]
UPON the Court noting that there is a lack of particularity within the particulars of the claim. There is no information on dates, times and details of individual breaches".

IT IS ORDERED THAT:-
1/ Unless by [Date], the Claimant files and serves a fully particularised particulars of the claim the claim shall be struck out.
2/ The Defendant shall, if so advised, file an updated defence not later than 14 days after service of due claim form.
3/ [Details of options to set aside, vary or stay]."

Claimant submitted a new claim in August 2024 in accordance with the above timeline. After that, I received no communications from the Court to advise if the claim was sufficiently particularised such that filing an updated defence was required or if the case would proceed to hearing. I did not file or submit anything after this date on this basis.

Then last week, October 2024, I received a Judgement for Claimant (in default) ordering me to pay the claimant debt + interest of £605(!!) with the reason being "you have not replied to the claim form".

Questions:
- Have I just F*d up here and misinterpreted the July 2024 letter regarding filing an updated defence? My interpretation was that I should wait to be advised by the Court that the claim was accepted and this would then start the 14 day window to file an updated defence in response.

- The Judgment for Claimant does include an option to apply for the judgment to be set aside. Any advice would be appreciated on whether this is worthwile given the circumstances?

Background to PCNs:
3x PCNs issued in 2019 whilst my vehicle was parked in the private residents' car park for the residential block of flats where I lived as a tenant between 2017-2022. The tenancy agreement included an allocated parking space in the car park for the entirety of the duration of the lease, and the car park was secured and accessible only by key fobs issued only to residents. Between 2018-2021, the allocated parking spaces were inaccessible due to works on the flat building, which is when the Claimant (Parking and Property Management Ltd 'PPM' hereafter) became involved. Residents were issued with parking permits and instructed to park in other locations still within the same car park in lieu of the allocated spaces - noting that the requirement to display this permit or to comply with the instructions given by PPM was never included in any tenancy agreement. Previously, in 2018 I was issued with 2x PCNs for "failure to display" which I appealed and got cancelled with the help of the property management company - on the basis that I was a resident and had not in fact failed to display. 3 more PCNs issued 2019 for the same reason however property management company not forthcoming with help this time. I followed the appeals process on the PPM website (rejected) and informed both landlord and property management company of these charges (acknowledged but ultimately ignored). The case was then passed to BW Legal who have since harassed me with numerous letters and threats of prosecution (some of which were sent to the wrong address). 

I should also point out that the photos submitted as evidence by PPM all quite clearly show the permit in the windscreen of my vehicle despite being taken between 11pm and 3am in the morning.

Given the background, I am fairly confident that I would be successful in a hearing, but hopefully have not messed up the process by misreading a requirement...

Any help would be much appreciated - and apologies for the huge post!

LDast

You absolutely must apply for it to be set aside. If this is the exact wording in the original order:

IT IS ORDERED THAT:-
1/ Unless by [Date], the Claimant files and serves a fully particularised particulars of the claim the claim shall be struck out.
2/ The Defendant shall, if so advised, file an updated defence not later than 14 days after service of due claim form.

Were you "so advised"?

Do you have a copy of the claimants "fully particularised particulars of the claim"? It would help if we could see that.

If this is for a large sum, exceeding £600, you must act with haste.

LDast

Here are the steps you need to take:

Step 1: Complete the N244 Form

Fill out the N244 form to apply for the judgment to be set aside:

• Part 3: State that you are applying to set aside the default judgment because the court did not notify you whether the claimant’s updated particulars of claim (PoC) met the requirements of the original court order. Highlight that the July 2024 order used the phrase "IF SO ADVISED," which indicated that the obligation to file an updated defence only arose if the court provided further advice.
• Part 4: Request a stay of enforcement to suspend any enforcement actions pending the outcome of the set-aside application.
• Part 10: Explain the grounds for your application:
  • Provide a timeline of events, including the original court order, the claimant’s submission of a new PoC, and the subsequent default judgment.
  • Emphasise that the wording "IF SO ADVISED" suggested that further advice from the court was necessary to confirm if the updated PoC complied with the judge's instructions.
  • Highlight the procedural fairness issue due to the lack of notification and the potential for a real prospect of successfully defending the claim.

Step 2: Prepare a Supporting Witness Statement

Your witness statement should support your application with these details:

1. Detail the Timeline:

   • Include the sequence of events from the original July 2024 court order, the claimant's filing of the updated PoC, and the issuance of the default judgment.
   • Explain how the wording "IF SO ADVISED" indicated that notification from the court was required to confirm whether the updated PoC met the original order.

2. Grounds for Setting Aside – CPR 13.2 and 13.3:

   • Argue that CPR 13.2 applies because the judgment was "wrongly entered" due to procedural irregularity: the court never confirmed whether the conditions for filing an updated defence had been met.
   • Argue that CPR 13.3 applies as you have a real prospect of successfully defending the claim, based on evidence that you were entitled to park as a resident, and prior cancellations of similar PCNs.
   • State that there is "some other good reason" to set aside the judgment given the ambiguity in the original court order and lack of court notification.

3. Explain Your Defence Grounds:

   • Mention your tenancy agreement, evidence showing the permit was displayed, and previous cancellations of similar PCNs.

4. Request a Stay of Enforcement:

   • Include a request for a stay of enforcement to prevent any enforcement actions while the set-aside application is pending.

Step 3: Draft a Proposed Order

Attach a draft order with your application that includes:

1. The judgment dated [insert date] be set aside.
2. The court confirm whether the claimant’s updated PoC satisfies the original court order.
3. The defendant be allowed to file an updated defence within 14 days of receiving court confirmation that the PoC is sufficiently particularised.
4. A stay of enforcement be granted, suspending any debt recovery actions.
5. The costs of this application be refunded.

Step 4: Submit the N244 Application, Supporting Documents, and Fee

• Submit the N244 form, the witness statement, the draft order, and the fee (£303).
• Attach evidence supporting your defence, such as the original court order, any correspondence, and documents proving your right to park.

Step 5: Notify the Court and Claimant

• Inform the court where the judgment was issued that you have submitted an N244 application, including a request for a stay of enforcement.
• Notify the claimant (BW Legal) that you have applied for the set-aside and requested a stay of enforcement.

Step 6: Request Clarification from the Court Regarding the PoC

Request that the court clarify whether the claimant’s updated PoC satisfied the original order. If the court had accepted the particulars, argue that you were not notified, leading to the procedural irregularity.

Step 7: Prepare for the Hearing (if Scheduled)

If a hearing is scheduled:

• Attend the hearing and explain the procedural ambiguity and your interpretation of the court order.
• Highlight the application of CPR 13.2 and 13.3 in your witness statement and draft order, arguing the judgment should be set aside as part of the Overriding Objective.

Step 8: After the Judgment Is Set Aside

If the court sets aside the judgment, the original claim will be either be reinstated or struck out. You may need to file an updated defence within a new timeframe set by the court.

pbizzle12

Thanks LDast for the swift response and guidance.

The "if so advised" wording is taken exactly from the General Form of Judgment or Order received in July 2024. I received a copy of the Claimant's updated claim form in August 2024 complying with the judge's timelines from the July 2024 letter. Since then, I have not received any communication at all - either by letter or through MCOL - from the Court with further instruction or update.

On that basis I will make the application for the set aside following your instructions above, immediately.

I will also scan a copy of the "fully particularised particulars of the claim" and share. 

Coupon-mad

Are you sure that the August 'Claim Form' was the same claim number AND that the POC listed the same PCNs/dates?

Same sum of money claimed?

Did the second claim come from the CNBC (Northampton) in the same way as the first, with the attached reply forms?

Or attached to a BW Legal letter?

Show us a pic of both Claim forms. Cover your data and MCOL password.

pbizzle12

Particulars of Claim received in August has the same claim number and PCN dates, so no discrepancies there. And it was attached to BW Legal letterhead - nothing by way of CNBC or reply forms. Images of (1) PoC dated Aug-24 and (2) original claim form dated Nov-23 attached below.

The sum claimed is £480 (3x PCNs @ £100 + Debt recovery costs @ £60) + £100 for court and legal fees. The calculation of the £605 I was ordered to pay is the original £480 plus interest of 8% per annum (£480 * 1.08^3). 

LDast

Here is a suggested WS for your N244 set aside application:

IN THE COUNTY COURT AT [INSERT COURT]

Claim No: [Insert Claim Number]
Claimant: [Insert Claimant Name]
Defendant: [Insert Your Name]
Judgment Date: [Insert Date of Default Judgment]

WITNESS STATEMENT OF [YOUR NAME]

I, [Your Name], of [Your Address], being the Defendant in this matter, make the following statement:

Introduction

1. I am the Defendant in this matter and make this Witness Statement in support of my application to set aside the default judgment entered against me on [insert date of CCJ].

2. The facts set out in this statement are true to the best of my knowledge and belief, and I rely on these facts to seek the court’s discretion to set aside the default judgment under CPR 13.2, or alternatively CPR 13.3.

Background

3. The Claimant issued proceedings against me for alleged contractual breaches without specifying any of the factual and legal allegations made against me. The PoC failed to comply with CPR 16.4(1)(a).

4. Because the Claimant’s original Particulars of Claim lacked sufficient detail, a case management order was made by the court on [insert date of order]. This order required the Claimant to file and serve fully particularised particulars of the claim by [insert date], or the claim would be struck out.

5. The court order explicitly stated that I was required to file an updated defence "if so advised." This crucial phrase meant that my obligation to file an updated defence was conditional, depending on whether I was advised to do so. No advice or instruction was ever provided, and therefore, I had no obligation to act at that time.

6. Having received a copy of the Claimant’s Further Particulars of Claim, I could clearly see that they did not fully comply with the court’s order. Specifically, the Claimant failed to meet the requirements of CPR 16.4 regarding the calculation of interest, which was flawed and mendacious. I reasonably expected the claim to be struck out due to this lack of compliance, and I received no advice to suggest otherwise.

Grounds for Setting Aside the Judgment

7. I submit that the default judgment was improperly entered and should be set aside under CPR 13.2, which mandates that a default judgment must be set aside if it was irregularly obtained. The default judgment appears to have been entered administratively by a case management judge. I have not received a copy of the order related to this action.

8. The court order clearly stated that I was required to file an updated defence "if so advised." No such advice or instruction was provided, and the Claimant was aware of this. The claimant unreasonably triggered the default judgment despite knowing there was no failure on my part to act. This renders the judgment irregular.

9. The Claimant’s Further Particulars of Claim did not fully comply with CPR 16.4, specifically regarding the calculation of interest. As such, the particulars were still deficient, and the judgment should not have been obtained. The claim should have been struck out, not pursued further.

10. In the alternative, if the court does not set aside the judgment under CPR 13.2, I respectfully request that the judgment be set aside under CPR 13.3. I have a real prospect of successfully defending the claim, and there is a good reason to set aside the judgment, given the procedural irregularities and unfairness in how it was obtained.

Procedural Error and Unfairness

11. Failure of the Court to Provide Advice or Communication: The court did not advise or communicate with me regarding the need to file an updated defence. The conditional nature of the court’s order, stating "if so advised," made it clear that I had no automatic obligation to file unless advised. As no advice was provided, I had no reason to file a defence. The default judgment appears to have been triggered administratively by the court rather than by the claimant. Therefore, I had no opportunity to respond before judgment was entered.

12. Lack of Proper Notice: I did not receive any further communication from the court after the Claimant served the Further Particulars of Claim. I was not made aware of any deadline to file an updated defence, nor was I advised that failure to do so would result in a default judgment. My expectation was that the court would strike out the claim due to the claimant’s non-compliance with CPR 16.4.

13. Procedural Error: The entry of the default judgment was premature and based on a misunderstanding or misapplication of the court order. I was only required to act if so advised. Given that the claimant’s PoC was incomplete and the court did not provide advice to file a defence, the judgment was entered in error, and the claim should have been struck out.

Claimant’s Failure to Fully Comply with CPR 16.4

14. The Claimant’s Further Particulars of Claim did not fully comply with CPR 16.4. One critical failure was the calculation of interest. The claimant sought interest on amounts that were not due from the date of the alleged contraventions but rather from the due dates based on when the PCNs were issued. Each PCN has a different due date, and the claimant has not provided sufficient detail to verify the accuracy of their interest calculations.

15. Interest Calculation Non-Compliance: The claimant’s failure to provide precise dates and calculations for the interest claimed makes it impossible to check whether the amounts claimed are correct. This lack of transparency and accuracy means the claimant did not fully comply with CPR 16.4(2), which requires a clear explanation of the interest period, rate, and amount. I reasonably expected the court to strike out the claim for this failure, and there was no reason to believe I needed to file an updated defence.

Appeal Misrepresentation

16. In paragraph 11 of the Claimant’s further Particulars of Claim, they falsely assert that “no appeal was received.” This is a blatant untruth. I submitted a formal appeal, which is fully evidenced by a detailed email chain between myself and the Claimant. This correspondence unequivocally demonstrates that the appeal was submitted in accordance with the Claimant's own processes and was acknowledged by them.

17. This deliberate misrepresentation is not merely an error; it is a mendacious attempt by the Claimant to mislead the court and to support a claim that should never have progressed to this stage. Their false statement in the further PoC not only calls into question their credibility but also indicates a pattern of conduct designed to unfairly disadvantage the defendant. Such conduct should not be tolerated by the court.

18. Given the Claimant’s knowing submission of false information, I respectfully submit that their actions constitute an abuse of the court process. The misrepresentation regarding the appeal, combined with the overall deficiencies in their claim—particularly their continued failure to comply with CPR 16.4—provides strong grounds for the court to not only set aside the default judgment under CPR 13.2, but also to strike out the claim in its entirety pursuant to CPR 3.4(2)(b) on the grounds that it has no real prospect of success and is being pursued with dishonest intent.

19. The deliberate nature of the Claimant’s misrepresentation further justifies this course of action, as it reveals a clear attempt to mislead both the court and the defendant. I submit that this claim has no merit, and the court should exercise its discretion to strike it out in the interests of justice.

Prospects of a Successful Defence

20. I believe I have reasonable prospects of successfully defending the claim. My defence would include, but is not limited to:

21. Challenge to the Particulars of Claim: The Claimant’s Further Particulars of Claim remain deficient in some areas, particularly regarding the calculation of interest. The Claimant has not provided sufficient information to determine how interest was calculated on each parking charge notice (PCN). Each PCN has a different due date, and the interest cannot accrue from the date of the alleged contraventions. This non-compliance with CPR 16.4 impacts the validity of the claim.

22. Failure to Prove Contract Formation: I will also challenge the Claimant’s assertion that a valid contract was formed. The Claimant relies on signage to establish the contract, and I dispute the adequacy of the signage at the time of the alleged contraventions.

23. Debt Recovery Costs: The Claimant seeks £180 in debt recovery costs, which are disproportionate and not adequately justified. I intend to challenge the reasonableness of these costs.

24. Therefore, I submit that I have a real prospect of successfully defending the claim, and it is in the interests of the Overriding Objective to allow me to present my defence.

Conclusion

25. For the reasons outlined above, I respectfully request that the court exercise its discretion under CPR 13.2 to set aside the default judgment entered against me, as the judgment was irregularly obtained.

26. In the alternative, I request that the court set aside the judgment under CPR 13.3 and provide me with an opportunity to file a fully updated defence and proceed with this matter on a fair and just basis.

27. Furthermore, the Claimant’s misrepresentation in their further Particulars of Claim, falsely asserting that no appeal was received, coupled with their continued failure to comply with CPR 16.4, demonstrates that they have acted in a dishonest and unreasonable manner throughout these proceedings. This mendacious behaviour represents a clear abuse of the court process. Accordingly, I respectfully submit that the court should strike out the Claimant’s claim pursuant to CPR 3.4(2)(b), as it has no real prospect of success and is based on deliberate misrepresentations.

28. Given the Claimant’s unreasonable conduct in knowingly triggering the default judgment despite the court’s order stating that I was only required to file a defence if so advised, and the fact that no such advice was provided, I respectfully request that the court awards my costs for this application. The Claimant's actions have resulted in unnecessary costs and time being expended on my part.

29. Furthermore, I draw attention to the possibility of an unreasonably late Notice of Discontinuance, which is not uncommon in claims from this industry. While CPR r.38.6 typically exempts small claims from costs liability after discontinuance (r.38.6(3)), the White Book makes it clear that this exemption does not apply if the party has acted unreasonably. Specifically, r.27.14(2)(dg) allows for costs to be awarded where a party has behaved unreasonably. In this case, the Claimant has behaved unreasonably by pursuing a default judgment that was conditional and not triggered by any failure on my part. Should a Notice of Discontinuance be served late in this process, I respectfully submit that the court should make an order for my costs to be reimbursed.

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.

Signed:

Date:

LDast

And here is a suggested Draft Order to go with the WS and application:

IN THE COUNTY COURT AT [INSERT COURT]

Claim No: [Insert Claim Number]
Claimant: [Insert Claimant Name]
Defendant: [Insert Your Name]
Judgment Date: [Insert Date of Default Judgment]

DRAFT ORDER

Before [Judge's Name] at [Court Name]

UPON reading the Defendant’s application to set aside the default judgment and strike out the claim

IT IS ORDERED THAT:

1. The default judgment entered against the Defendant on [insert date of CCJ] is set aside pursuant to CPR 13.2 (or alternatively, CPR 13.3).

2. The claim is struck out in its entirety for failure to comply with CPR 16.4, specifically for the Claimant’s failure to file and serve fully particularised Particulars of Claim, including proper calculations of interest and compliance with statutory requirements.

Alternatively:

1. If the claim is not struck out, the Claimant shall file and serve, within 14 days of the date of this Order, fully compliant Particulars of Claim in accordance with CPR 16.4(2), including a detailed and precise breakdown of how statutory interest has been calculated for each parking charge notice (PCN).

2. Should the Claimant fail to comply with paragraph 3 of this Order, the claim will be struck out.

3. If the Claimant complies with paragraph 3, the Defendant shall have a further 14 days from service of the fully particularised claim to file and serve an amended Defence.

4. The Claimant shall pay the Defendant’s costs of this application in the sum of £[insert amount].

5. In the event that the Claimant serves a Notice of Discontinuance prior to this hearing, the Claimant shall remain liable for the Defendant’s costs incurred in connection with this application, pursuant to CPR 38.6(1) and r.27.14(2)(dg) on the grounds of the Claimant’s unreasonable conduct.

Dated:

pbizzle12

Amazing LDast (sorry I don't know how to tag you) - thank you so much. I am drafting the evidence box to the N244 application for and will post that here also in case of any edits.

I would also point out that para 11 of the PoC states that no appeal was received. This is categorically false and I have an entire email chain to prove it. Is it worth including that in the witness statement also? Or save it for the defence, if needed?

LDast

Of course you should include it in the WS. I would suggest something along these lines:

Appeal Misrepresentation
In paragraph 11 of the Claimant’s further Particulars of Claim, they falsely assert that “no appeal was received.” This is a blatant untruth. I submitted a formal appeal, which is fully evidenced by a detailed email chain between myself and the Claimant. This correspondence unequivocally demonstrates that the appeal was submitted in accordance with the Claimant's own processes and was acknowledged by them.

This deliberate misrepresentation is not merely an error; it is a mendacious attempt by the Claimant to mislead the court and to support a claim that should never have progressed to this stage. Their false statement in the further PoC not only calls into question their credibility but also indicates a pattern of conduct designed to unfairly disadvantage the defendant. Such conduct should not be tolerated by the court.

Given the Claimant’s knowing submission of false information, I respectfully submit that their actions constitute an abuse of the court process. The misrepresentation regarding the appeal, combined with the overall deficiencies in their claim—particularly their continued failure to comply with CPR 16.4—provides strong grounds for the court to not only set aside the default judgment under CPR 13.2, but also to strike out the claim in its entirety pursuant to CPR 3.4(2)(b) on the grounds that it has no real prospect of success and is being pursued with dishonest intent.

The deliberate nature of the Claimant’s misrepresentation further justifies this course of action, as it reveals a clear attempt to mislead both the court and the defendant. I submit that this claim has no merit, and the court should exercise its discretion to strike it out in the interests of justice.

I've amended the WS above to include this reference and updated the conclusion.

pbizzle12

Thank you again. Attached below for the N-244 form. Do you think these look ok or overkill?