CCJ - update, now set aside and currently creating defence for elderly family member

KeithP

Please adjust your thread title to something more suitable now that the urgency has been dealt with.

sunmoon789

Le_Kirk said:

You use the template defence and add your paragraphs 2 & 3 refuting what is in the POC.  Have we seen the POC; are they detailed or sparse enough to use Chan & Akande?  Who is the legal, if DCB Legal use: -
https://forums.moneysavingexpert.com/discussion/6576011/cel-dcb-legal-pcn-cnbc-claim-defence-assistance-required-please/p1

Thank you for this - it isn’t DCB legal, I’m not sure if it’s giving too much info by saying the legal team? I’m going to finish writing it today and send it off for them - thanks so much!

sunmoon789

KeithP said:

Please adjust your thread title to something more suitable now that the urgency has been dealt with.

I have changed it

Coupon-mad

Tell us which solicitor firm and show us the POC.  Did the family member get costs awarded or are they not out of pocket?

sunmoon789

Coupon-mad said:

Tell us which solicitor firm and show us the POC.  Did the family member get costs awarded or are they not out of pocket?

Gladstones- the POC is the witness statement they provided after the ccj was challenged. It’s 5 pages, should I insert the whole thing but with details omitted? The family member did not have to pay to have the ccj reviewed/set aside also. 

Johnersh

A witness statement is not the particulars of claim (unless the court orders that). The particulars are usually on the claim form and usually poor.

It's common for a PPC to use a template witness statement, but let's see it - you can omit personal details and any exhibits for now 

sunmoon789

INTRODUCTION

1. I am a Legal Assistant, in the employment of Gladstones Solicitors Limited (hereinafter referred

to as 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 Judgment in default obtained on the … in relation to this claim.

14. The Defendant prays in aid of the application:

i. ii. That they received no correspondence regarding the parking charge;

That they were unaware of the Claim Form.

5. The Claimant wishes to oppose the application and has provided instructions to my Firm to

provide a witness statement in the following terms.

BACKGROUND OF THE CLAIM

6. Due to the Parking Charge Notice (hereinafter referred to as ‘PCN’) to which this claim relates

remaining unpaid, the Claimant referred the matter to my Firm for the purposes of recovery on the

….

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 on the …. at

Address; this being the address supplied by the DVLA as

being the address of the Defendant named herein at the time of the contravention, Exhibit

reference.

8. When no response was received to that correspondence my Firm therefore submitted a claim to

the County Court on the …. The address provided for service of the

Claim Form was address, this being the usual or last known

residence of the Defendant for the purposes of CPR 6.9.

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

10. As no response to the claim was filed with the Court, the Claimant was therefore at liberty to

apply for judgment in default on the …., the same being accepted by the court on the ….

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 Judgment 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.

212. In respect of the first limb of the above criteria, in view of the aforementioned paragraphs, the date

the Claim was issued and as …. months passed before the Defendant made the application; 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. Notwithstanding the previous, in considering the second limb of the above criteria the Claimant

invites the Honourable to court to consider the following.

THE DEFENDANT’S LIABILITY

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.

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 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 (hereinafter referred to as the ‘Act’) to pursue an unpaid parking charge against the

Registered Keeper of a vehicle, where specific criteria are met.

17. 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.

18. The Claimant provides, manages and enforces private parking at the land located at … (hereinafter referred to as the

‘Site’).

319. Now shown at Exhibit reference is a copy of the agreement between the landowner and the

Claimant (hereinafter referred to as the ‘Agreement’), 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 (hereinafter referred to as the ‘Terms and Conditions’) are

displayed on large highly prominent signs erected by the Claimant at various points throughout

out the Site. Exhibit reference. The signs as to their size, content, font, location and number

conforms to the Claimant’s Accredited Trade Associations Code of Practice.

21. The Terms and Conditions of the Site, inter alia, express the following conditions for any motorist

using the Site;

“PARKING CONDITIONS APPLY

AT ALL TIMES

A CHARGE OF £100 per day, payable within 28 days, will be due from the driver of any

vehicle parked at these premises where either:

• a valid permit is not clearly on display in the windscreen, or

• the vehicle is not pre-authorised to park, or

• the vehicle is parked in a disabled bay without clearly displaying a valid blue badge,

or

• the vehicle is not parked wholly within a single marked bay, or

• any obstruction or inconvenience is caused by the manner of parking or the vehicle

otherwise impended another vehicle, or

• the vehicle is an unauthorised commercial vehicle, caravan, boat, motorhome or

trailer.”

22. 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 or they should refrain from parking.

23. 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, and 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 (hereinafter referred to as the ‘Contract’).

24. 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.

25. 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.

26. 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.

27. On the…0 (hereinafter referred to as the ‘Contravention Date’, vehicle registration

number …. (hereinafter referred to as the ‘Vehicle’) was observed to be parked in breach

of the Terms and Conditions applicable at the Site in that the driver failed to park wholly within a

marked bay. Exhibit reference. The vehicle parked across two bays blocking access to the

nearby bay for other vehicles. The driver parked the Vehicle in clear contravention of the

applicable terms and conditions and thus incurred a charge.

28. A PCN was not affixed to the Vehicle’s windscreen at the time of the contravention. As a result of

the above the Claimant obtained the details of the Vehicle’s registered keeper from the DVLA,

under the terms of the KADOE. The Defendant was named as the Registered Keeper. The address

supplied by the DVLA as being the Registered Keepers address is an address by which notices

concerning the Vehicle can be sent and is deemed to be current, given that it is the Registers

Keepers responsibility to update the DVLA of any changes. The Claimant issued a postal PCN to

the Defendant on the …. as they were the Registered Keeper of the vehicle at the time

of the contravention. Exhibit reference. Certificate of postage is also enclosed.

29. The PCN gave the Registered Keeper three options:

i. To pay the PCN;

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

5iii. 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.

30. The Claimant followed this up by sending a reminder notice to the Defendant on the …., Exhibit reference.

31. No response was received to that correspondence. To date the PCN remains unpaid.

32. The Claimant therefore claims the unpaid parking charge from the Defendant as the registered

keeper of the vehicle pursuant to the Protection of Freedoms Act 2012.

THE DEFENDANT’S APPLICATION

33. 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. As the identity of the driver was not known to the Claimant, they were

entitled to obtain the Registered Keepers’ details from the DVLA and pursue the Registered

Keeper instead.

34. The Defendant submits they have received no correspondence in respect of the indexed matter.

The Claimant draws the Honourable Court’s attention to the fact that the Defendant’s address on

the application matches the address where the parking charge notices were sent together with

subsequent correspondence informing her of the debt, including the Claim Form.

35. The Claimant notes that the Defendant was informed of the existence of the judgement by

Gladstones Solicitors via letter. The letter dated the …. was sent to the Defendant’s

current address. Exhibit reference. As a result, the same could have been discharged within

the calendar month, yet no contact has been made with the Claimant.

36. The Claimant is also aware that the courts also send out copies of judgements. In this case the

court would have sent a copy of the judgement to the same address given by the Defendant as

being her current address, on the N244 application to set the judgement aside.

637. The Claimant notes the correspondence in respect of the indexed PCN was sent to the Defendant

in the period between /…. and ….. The Claimant therefore can think of no reason as

to why the Defendant would not have received at least one letter regarding this case.

38. 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.

39. It is not the Claimants intention to actively participate in the Defendant’s application to set the

Judgment 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.

40. Without prejudice to the previous, in the event that the court is minded to grant the Defendants

application then upon the Judgment 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.

41. Should the court elect to proceed as described above, the Claimant respectfully requests the

following Order be made;

a. b. The judgment entered on the ….. be and is hereby set aside;

The Witness Statement of …… stand as the Particulars of Claim and service of the

Claim be dispensed with;

c. The Defendant must file and serve a Defence to the Claim within 28 days of service of this

Order in default of which, the Claimant be at liberty to re-enter Judgment;

d. 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

e. There be no Order as to Costs.

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.

1505grandad

"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."

A very quick skim read but did they really use this? 

Also several incorrect spellings using "judgement" instead of judgment

Or are these because of your use when typing the contents of their WS?

If that is the case in order that the forum has a correct view can you copy/post the actual WS and delete your typed posts of the document.

sunmoon789

Yes I copied and pasted it and removed any dates and addresses 

Umkomaas

1505grandad said:

"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."

I haven't read any further but did they really use this? 

I've seen that before in Gladstones Witness Statements. It can rank alongside 'of/have', 'your/you're', 'there/their' abominations that irritate!