UK Parking Limited - LBCC

Thanks @KeithP and @Coupon-mad - the post was very helpful. I now understand the Draft Order and have added one to my N244 supporting documents also.

I contacted the CCBC and they told me I had to take the issue up with Royal Mail.

I contacted the Royal Mail, and because the Claim Form was sent using a prepaid envelope and with the 1st Class service (not tracked), there is no record of postage or delivery at all for me to be able to submit a claim.

It seems completely crazy that this can happen with such an important document! Event the CCBC operator agreed!

So, I will post my 'Draft Order', 'Witness Statement' and 'Default Judgement' below - I would really appreciate it if anyone could check it over and offer any improvements that could be made before I send it over.

Thanks a million again! :beer:

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DRAFT ORDER


IN THE COUNTY COURT AT: NORTHAMPTON

UK PARKING LIMITED (Claimant)

And

XXXXXXXXX (Defendant)


CLAIM No: XXXXXXXXX

IT IS ORDERED that:

1. The default judgment dated XX/XX/2018 be set aside.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the claim form on the Defendant by 4pm on XX/XX/18 paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on XX/XX/2018.

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 plus the Defendant's costs for attending the hearing.

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


WITNESS STATEMENT



7. I am XXXX and I am the defendant in this matter. This is my supporting statement to my application dated XX September 2018 requesting to:

a. Set aside the default judgment dated XX XXXXXXXX 2018 as it was defectively posted and was never received.

b. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

c. Order for the original claim to be dismissed.



DEFAULT JUDGEMENT


8. I understand that the Claimant obtained a Default Judgement against me as the Defendant in XXXXXXX 2018. However, this Claim Form did not arrive at my home address and thus I was not aware of the default judgement until XX XXXXXXXX 2018 when the Default Judgement letter was opened and brought to my attention.

9. I have attempted to raise a lost item claim with Royal Mail, although in order to proceed with this I need a valid receipt of postage. I have attempted to contact the County Court Business Centre to obtain this, but because the letters are sent in bulk prepaid envelopes they are unable to provide me with this. Furthermore, as the letter was sent using the 1st Class service, there is no tracking record of it at all. I feel this is a wholly irresponsible manner to send such a serious document and it left me without the opportunity to submit my defence.

10. The LBCC I was sent lacked specificity and breached both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. I replied promptly notifying the Claimant of this and requested the information they are obliged to provide.

11. To this date I have received no clarification of the practice direction from the claimant, instead receiving only a template reply from Ultimate Customer Solutions, another 3rd party that has been passed my personal data without my explicit consent.


12. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring the claim form arrives by tracked mail. The Claimant’s persistent failure to comply with the Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2 results is an unnecessary burden for individuals and the justice system across the country.

13. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Practice Direction when bringing the claim.


14. When contacted on XX XXXXXXX 2018, The Royal Mail advised me that there were no reported issues with their service at my postcode area at the time of the Claim Form’s posting, neither have there been any since. They advised me this usually means that the issue is at the sender’s end. I understand the County Court Business Centre’s reasons for sending untracked mail is to reduce costs to the taxpayer and is a decision set at the MP level. The Claimant, as a serial issuer of County Court Claims, will surely know this weakness and when they received no defence from me, could have easily used the array of alternate delivery methods they have at their disposal to notify me, but instead chose not to until it was too late for me to defend the claim.

15. I have consistently used Tracked mail services with the correct delivery receipt in my correspondence with the Claimant, the contents of which they weren’t even organised enough to respond to. It is an amateur oversight on their part to have allowed their correspondence to get ‘lost in the post’.

16. Considering the above I was unable to defend this claim. Therefore, I believe that the default judgment against me was irregular and I respectfully request it is set aside.

ORDER DISMISSING THE CLAIM

17. I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

18. If the Claimant has obtained details of the vehicle for which I am the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

19. If the Claimant can evidence that the alleged incident relates to a vehicle for which I am the Registered Keeper, any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

20. I further submit that the parking charge notice is without merit due to substantial issues in law. This is for the following reasons:

a. Lack of Standing by Claimant: The claimant is not the landowner of the car park in question and will have no proprietary interest in it. This means that the claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder and only they would have been able claim for any damages or trespass.

b. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.

d. No contract with the claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to UK Parking Limited.

21. On this basis I believe that the claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

22. In order to make informed decisions and statements in my defence as keeper of the vehicle I will require copies of all paperwork and pictures of all signs from the claimant.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.

Following on from my set aside application, it seems to have been accepted and a date has been set for a hearing in just over a week's time.

I have also received a massive ringbinder from the claimant's solicitor (also sent to court I assume), containing their evidence and requesting the set aside application be struck out, in the closing summary of their witness statement claiming:

"The Defendant has raised a generic type defence which raises several "technical" points, none of which the Defendant would have been mindful of or even considered when using the private car park. The simple facts are that the Defendant parked on private land, purchased a pay and display ticket and subsequently overstayed for at least 59 minutes. The Defendant has not attempted to address this at any point"

This has confused me, since they are pursuing me as the keeper of the vehicle because they weren't able to identify the driver.

This seems to be unfairly muddying the waters, and since I don't have much time to the hearing, what would you suggest?

Have you raised the matter with your MP?

The Deep, I haven't yet but you raise a good point. I most certainly will once the hearing is through.

However if your stance is you can't recall after all these months, that is what you say, and you show the Judge a copy of the car insurance if it named more than one driver at the time of the event, and that is enough to tip the balance of probabilities that you were NOT the driver, in your favour.

So take that insurance policy with you & Henry G's words, and a print of Schedule 4 of the POFA.

Mainly useful ONLY if the parking firm has not met the conditions of Schedule 4, of course.

And take a copy of your wage slip as proof of loss of leave/earnings, and ask at the end before leaving the room, for an Order that your costs (inc the £255, plus your travel and parking etc.) to be reserved, and that if the Claimant then discontinues the claim once set aside, that they must then pay your costs in full on the indemnity basis.

Coupon-mad thanks again for the advice, I'll check POFA once again to see what can be done here, and indeed this is my stance as there was once other named driver and around this time, my parents-in-law visited from Europe and were also driving the car.

Do I need to prepare this for the hearing, or do you think I need to send something ahead to the court in advance?