CEL CCJ - Set Aside Order and Witness Statement : Ready for submission?

[What I prepared for the set aside hearing and provided to the Judge]

IN THE COUNTY COURT AT: XXXXXXX

CLAIM No: XXXXX

BETWEEN:


CIVIL ENFORCEMENT LIMITED (Claimant)


-- and --


XXXXXX

______________________________________________


DEFENCE

______________________________________________


I, the Defendant, am the registered keeper of the registered vehicle XXXX

I deny that I am liable to the Claimant for the entirety of the claim for each of the following reasons:

SET-ASIDE DEFAULT JUDGEMENT

1. I have at no time tried to avoid paying for any known debt and was at all times there to be found by a simple trace. I was not aware of the County Court Judgment (hereon referred to as the default judgment) until XXXX when I received notification via the Money Saving Expert Credit Club of a change in my credit rating score. I had not received any documentation from the Claimant in this matter at that time. I therefore acted promptly to both ascertain the details of the default judgment and submit a Set Aside Application as the following sequence of events confirms:

a. XXXXX
i. Email received from Money Saving Expert Credit Club confirming change in credit score. Credit report checked at 09:11 which was first time default judgment details were known
ii. Immediate call to Northampton County Court at 09:14 to request details of default judgment which were emailed to defendant at 09:38
iii. Clarity as to reasons for proceedings being bought requested at 13:10 with set aside application fees paid at 13:57

b. XXXX
i. Call made to Northampton County Court at 12:56 to request particulars of claim
ii. Payment of £10 made to request copy of order and judgment which was subsequently supplied at 14:10

c. XXXX
i. Subject Access Request submitted to the Claimant (Civil Enforcement Limited)
ii. N244 Application to Set Aside Judgment filed to Northampton County Court

2. The Court are therefore asked to give regard to my prompt action on learning of the default judgment which adheres to Civil Procedure Rule (CPR) 13.3 (2):

‘(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

3. The fact that I only learned of the default judgment on XXXX shows that the Claimant had not adhered to CPR 6.9 (3) in taking reasonable steps to ascertain my current address when they had reason to believe that the address they were sending documentation to me was one I no longer resided at. As the Claimant received no response from me to their correspondence, the Claimant had reasonable cause to question whether they were using an accurate address. At the time of the default judgment my V5C, driving licence, HMRC details and Council Tax records were registered at my new address, which mean I was there to be found by a simple trace. Yet, despite having X months to establish an address between the alleged incident (XXXX) and the default judgment (XXXX), no such steps were taken by the Claimant. This has led to a defective service and an irregular judgment. The court are respectfully asked to consider how this failure to validly serve the original proceedings is a ‘good reason’ why the default judgment should be set aside in line with CPR 13.3.

4. I am a law-abiding citizen who has acted in good faith and not ever tried to avoid paying known debts. When it came to light I had overlooked updating my address on the V5C in XXX while applying for a French emissions certificate, I immediately updated this. This demonstrates that I have not ever tried to evade any payments, fines, tax and have been diligent to correct any mistakes.

5. I therefore respectfully invite the court to set-aside the default judgement on the basis that there was no reasonable presumption that I as the defendant resided at the address in question, as none of the Claimant’s correspondence about this claim was responded to. This means that the proceedings that led to the default judgment were not served and as a result, service was defective.

6. Further, I ask the court to order the Claimant to refund the costs OR, in the alternative, to reserve the costs as I am concerned the Claimant will discontinue once the default judgment is set aside, leaving myself with a loss of court fees of £255. In such an event of discontinuation, I request that costs will be ordered to be refunded if the Court is alerted of the matter.

ORDER DISMISSING THE CLAIM

7. I also believe I should be allowed and have a real prospect of successfully defending the claim for the following reasons which are set out in further detail in this section:

i. the original Particulars of Claim submitted by the Claimant were not compliant with CPR Practice Direction 16, paragraph 7.5;
ii. the Parking Charge Notice issued by the Claimant does not comply with the Protection of Freedoms Act 2012 Schedule 4 paragraph 4 to enable the Claimant to seek their right to pursue Keeper Liability;
iii. the claim has been inflated by the Claimant to seek triple recovery in contrary to the Protection of Freedoms Act 2012 Schedule 4, Section 4(5)
iv. the permit system used by the Claimant places applicants at an unfair advantage

Accordingly, once it has considered the following arguments, the Court is invited to consider striking out the entire claim of its own initiative, using its case management powers pursuant to CPR 3.4.

8. The facts are that the vehicle, registration XXXX, is one which I am the registered keeper. The claim appears to relate to an alleged debt arising from a driver parked at XXXX on the material date of XXX. At time of the alleged debt, the vehicle was insured for use by two named permitted drivers, of which I am one.

9. The Particulars of Claim state the claim is for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of the Terms and Conditions (T&Cs). It is stated that drivers are allowed to park in accordance with T+Cs of use. The Particulars of Claim are not explicit in stating on what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. I have assumed that the Claimant is seeking to rely on a claim based upon on agreement by conduct. However, if this is the case, the particulars do not meet the requirements of CPR Practice Direction 16, paragraph 7.5 as they do not set out what the terms and conditions of use were nor how they were alleged to be breached and by whom.

10. I deny being the driver of the vehicle on the alleged date and the Claimant has provided no evidence to set out who it contends to have been the driver. I can however provide evidence of a booking for the XXX on the date cited in the Particulars of Claim with the name of a permitted driver for the insurance held on the vehicle at the time. This confirms that the vehicle will have been on the land in question for use by an authorised patron of the onsite business.

11. I am aware that the Protection of Freedoms Act 2012, Schedule 4, paragraph 4 provides a creditor with the right to recover any unpaid parking charges from the keeper of the vehicle (‘keeper liability’) but that right only applies if the conditions specified in paragraphs 5, 6, 11 and 12 are met, with paragraph 6 (b) stating that the creditor must have given a notice to keeper in accordance with paragraph 9. Paragraph 9 allows for a creditor to hold a registered keeper liable for a parking charge where the creditor does not know both the name of the driver and a current address for service for the driver. However, the Protection of Freedoms Act 2012 is clear that to rely on this paragraph the creditor must set out in its notice the information set out at paragraphs (2) (a)-(i) of the Act. Any non-compliance with these requirements voids any right for the creditor to pursue ‘keeper liability’.

12. Although not received at the alleged time of issuing, I have now obtained a copy of the Parking Charge Notice issued by the Claimant on XXX (PCN No: XXXXX) through a Subject Access Request. I understand that this Parking Charge Notice is the document the Claimant seeks to rely upon as a Notice to Keeper due to it being the first correspondence issued by the Claimant in this matter. The Parking Charge Notice fails to comply with Paragraph 9 (2) of Schedule 4 of the Protection of Freedoms Act 2012 to enable the Claimant to pursue myself through the Keeper Liability provisions as it does not include the information that must have been set out, namely:
• that the driver is required to pay the parking charges (requirement of paragraph b but not in Parking Charge Notice)
• the specific circumstances in which the requirement for payment arose and the means by which this was bought to driver’s attention (requirement of paragraph c but the Parking Charge Notice only uses brief terminology of ‘authorised vehicles’ to describe requirement and that ‘signage’ bought this to driver’s attention)
• that it does not know the name of the driver or their address but invites the registered keeper to pay the charge or notify the creditor of the driver name (requirement of paragraph e but no reference on Parking Charge Notice)

The Claimant may seek to rebut this assertion by stating that this wording features on the Payment Slip. However, it has been established in case law for equivalent notices issued by Local Authorities that the Payment Slip is not part of the Parking Charge Notice. This was confirmed by the Judge in the High Court Case ‘Moses v Barnet ([2006] EWHC 2357 (Admin) CO/3355/2006)’ which quoted the following extract from Parking Adjudicator’s findings in ‘Al's Bar and Restaurant Ltd v London Borough of Wandsworth‘ (28th October 2002 Case No 2020106430):

‘As to the payment slip, it is in my view not part of the PCN at all; it is a separate document that is, for convenience, attached to the PCN. ‘

And goes on to state at paragraph 38
38. I find the reasoning in the passages quoted from McArthur and Al's Bar to be compelling. The statutory requirements are simple and clear. Compliance is not difficult….
It is reasonable to apply this same test to the Parking Charge Notice issued in this matter by the Claimant which is arguably void due to its non-compliance with the relevant legislation.

13. The Claimant’s non-compliance with Protection of Freedoms Act 2012 is continued with the sum that it has sought through this claim. The Protection of Freedoms Act 2012 Schedule 4, Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. The Parking Charge Notice dated XXX that I have taken to be the Notice to Keeper stated the charge was £100. The Particulars of Claim have however escalated this charge to £293 which appears a brazen attempt at near triple recovery.

14. The Claimant has not provided details of the signage that was in operation at the time of the alleged contravention. I have however visited the hotel and note that the current signage states that visitors to the hotel must register for a permit at reception. Noting the time of the vehicle’s arrival on the date in question and the potential for fatigue leading to an inputting error by the driver when entering the vehicle registration number on any permit application for my vehicle, I asked the Claimant to supply the permit logs submitted to it via the hotel on the day of the alleged contravention as part of my Subject Access Request. The Claimant has failed to respond to this part of my request, which I have escalated to the appropriate adjudicator of the Information Commissioner. This action has however further placed the defendant in an unfair situation to be correctly able to defend the case. It should be noted that the Claimant has also refused to share this information with the hotel.

15. To understand the process of obtaining a permit, I applied for one during my visit to the hotel. The permit registration is undertaken via an iPad at the reception desk with signs also present in the lobby. The iPad asks for applicants to supply their vehicle registration number. The only confirmation provided to applicants that a permit has been successfully issued is offered on the iPad screen. Permit holders are not provided with a hard or electronic copy of any permit even though this would be technically very easy to facilitate by the Claimant if it requested applicant’s email addresses at the time of application. As a result, a permit holder has no information they can refer to in order to understand what agreement they have entered into with the Claimant nor are they given the opportunity to verify that the Claimant holds their correct information to ensure that the permit is correctly assigned to their vehicle. I suggest this is a business practice that places applicants at an unfair advantage. I put it that a reasonable person would expect to be provided with a copy of any permit they hold to enable them to be considered bound by its terms.

16. In summary, it is my position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4 and order the Claimant to pay may costs assessed as £255.

Should the court not feel able to strike out the claim at this hearing, I would respectfully ask that the default judgment be Set Aside to allow myself as Defendant a further opportunity to defend it due to my having a realistic prospect of successfully defending it.

I believe the facts contained in this Defence are true.

[What I sent as my defence to meet paragraph 2 of the order]

IN THE COUNTY COURT AT: XXX


CLAIM No: XXXX

BETWEEN:


CIVIL ENFORCEMENT LIMITED (Claimant)


-- and --


XXXX (Defendant)

______________________________________________


DEFENCE

______________________________________________


1. I, the Defendant, am the registered keeper of the registered vehicle XXX. I deny that I am liable to the Claimant for the entirety of the claim for each of the following reasons:

i. the Claim Form submitted by the Claimant and the Particulars of Claim within it are not compliant with Civil Procedure Rules (CPR) Practice Direction 22, paragraph 3.4 and Practice Direction 16, paragraph 7.5;
ii. the Parking Charge Notice issued by the Claimant does not comply with the Protection of Freedoms Act 2012 Schedule 4, paragraph 4 to enable the Claimant to seek their right to pursue the charges from me as the Registered Keeper;
iii. the claim has been inflated by the Claimant in contrary to the Protection of Freedoms Act 2012 Schedule 4, paragraph 4(5);
iv. the permit system used by the Claimant places applicants at a disadvantage causing unfair terms that lead to imbalance in the parties rights and obligations to the detriment of the consumer in contrary to Paragraph 62 of the Consumer Rights Act 2015.

2. The facts are that the vehicle, registration XXX, is one which I am the registered keeper. The claim appears to relate to an alleged debt arising from a driver parked at XXXX on the material date of XXX. At time of the alleged debt, the vehicle was insured for use by two named permitted drivers, of which I am one.

3. The Claim Form issued by the Claimant on XXX has its statement of truth signed by ‘Civil Enforcement Limited’. CPR Practice Direction 22, paragraph 3.4 states that if a document is to be verified on behalf of a company, the statement of truth must be signed by a person holding a senior position in the company and that person must state the office or position held. The Claimant has failed to follow this practice direction meaning that its Claim Form was not correctly filed.

4. The deficiencies in the Claim Form are furthered by the Claimant’s entry in the Particulars of Claim section. The Particulars of Claim state the claim is for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of the Terms and Conditions (T+Cs). It is stated that drivers are allowed to park in accordance with T+Cs of use. The Particulars of Claim are not explicit in stating on what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. I have assumed that the Claimant is seeking to rely on a claim based upon on agreement by conduct. However, if this is the case, the particulars of claim do not meet the requirements of CPR Practice Direction 16, paragraph 7.5 as they do not set out what the terms and conditions of use were nor how they were alleged to be breached and by whom.

5. I deny being the driver of the vehicle on the alleged date of violation and the Claimant has provided no evidence to set out who it contends to have been the driver. I can however provide evidence of a booking for the XXXX on the alleged date of violation in the Particulars of Claim, with the name of a permitted driver for the insurance held on the vehicle at the time. This confirms that the vehicle will have been on the land in question for use by an authorised patron of the on-site business.

6. I am aware that the Protection of Freedoms Act 2012, Schedule 4, paragraph 4 provides a creditor with the right to recover any unpaid parking charges from the keeper of the vehicle (‘keeper liability’) but that right to keeper liability only applies if the conditions specified in paragraphs 5, 6, 11 and 12 are met, with paragraph 6 (b) stating that the creditor must have given a Notice to Keeper in accordance with paragraph 9. Paragraph 9 allows for a creditor to hold a registered keeper liable for a parking charge where the creditor does not know both the name of the driver and a current address for service for the driver. However, the Protection of Freedoms Act 2012 is clear that to rely on this paragraph the creditor must set out in its Notice to Keeper the information set out at paragraphs (2) (a)-(i) of the Act. Any non-compliance with these requirements voids any right for the creditor to pursue ‘keeper liability’.

7. Although not received at the alleged time of issuing, I have now obtained a copy of the Parking Charge Notice issued by the Claimant on XXX (PCN No: XXXX) through a Subject Access Request. I understand that this Parking Charge Notice is the document the Claimant seeks to rely upon as a Notice to Keeper due to it being the first correspondence issued by the Claimant in this matter. The Parking Charge Notice fails to comply with paragraph 9 (2) of Schedule 4 of the Protection of Freedoms Act 2012 to enable the Claimant to pursue myself through the keeper liability provisions as it does not include the information that must have been set out, namely:
• that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full [requirement of paragraph 9 (2)(b) but not in Parking Charge Notice]
• describe the parking charges due from the driver as at the end of that period; the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable [requirement of paragraph 9 (2)(c) but the Parking Charge Notice only uses brief terminology of ‘authorised vehicles’ to describe requirement and that ‘signage’ bought this to driver’s attention]
• state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper (i) to pay the unpaid parking charges; or (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver [requirement of paragraph 9 (2)(e) but no reference on Parking Charge Notice]

8. The Claimant may seek to rebut the above assertions by stating that the wording required to pursue keeper liability features on the ‘Payment Slip’. However, it has been established in case law for equivalent notices issued by Local Authorities that the Payment Slip is not part of the Parking Charge Notice (PCN). This was confirmed by the Judge in the High Court Case ‘Moses v Barnet ([2006] EWHC 2357 (Admin) CO/3355/2006)’ which quoted the following extract from Parking Adjudicator’s findings in ‘Al's Bar and Restaurant Ltd v London Borough of Wandsworth‘ (28th October 2002 Case No 2020106430):

‘As to the payment slip, it is in my view not part of the PCN at all; it is a separate document that is, for convenience, attached to the PCN. ‘

And goes on to state at paragraph 38
38. I find the reasoning in the passages quoted from McArthur and Al's Bar to be compelling. The statutory requirements are simple and clear. Compliance is not difficult….
It is reasonable to apply this same test to the Parking Charge Notice issued in this matter by the Claimant which is arguably void due to its non-compliance with the relevant legislation.

9. The Claimant’s non-compliance with the Protection of Freedoms Act 2012 is continued with the sum that it has sought through this claim. The Protection of Freedoms Act 2012 Schedule 4, paragraph 4 (5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. The Parking Charge Notice dated XXX that I have taken the Claimant is using as the Notice to Keeper stated the charge was £100. The Particulars of Claim have however escalated this charge to £193.17. In addition to its inflation of the penalty, the Claimant has also added £50 legal representative’s costs. I contend that the Claimant has not incurred these legal costs as I understand from personal research they have a salaried in-house Legal Team that issues numerous duplicate claim forms per year.

10. There are further deficiencies in the Claimant’s operation of its permit system that forms the basis of the Terms and Conditions the Claimant alleges to have been breached in this matter. As set out in paragraph 5 of this defence, I have evidence of a hotel booking on the day the Claimant alleges their Terms and Conditions were breached which demonstrates that the vehicle will have been on the land in question for use by an authorised patron of the on-site business. The Claimant has not provided details of the signage that was in operation at the time of the alleged contravention which its Parking Charge Notice stated ‘clearly displayed the Terms and Conditions’. To understand what that signage may have stated at the time of the alleged breach of its Terms and Conditions, I visited the hotel on XXXX. The signage present on that date states that ‘hotel guests/visitors must register for a permit at reception’ and that ‘if you breach any of these terms you will be charged £100’.

11. Noting that the Parking Charge Notice states the vehicle arrived at XXX on XXXX which suggests the potential for fatigue leading to an inputting error by the driver when entering the vehicle registration number on any permit application for my vehicle, I asked the Claimant to supply the log of permit applications submitted to it via the hotel on the date of the alleged violation as part of my Subject Access Request. The Claimant has failed to respond to this part of my request in breach of my right of access under the Data Protection Act 2018, which I have escalated to the appropriate adjudicator of the Information Commissioner. This action has however placed the defendant in an unfair situation to be able to defend the claim. It should be noted that the Claimant has also refused to share this information with the hotel.

12. To understand the process of obtaining a permit, I applied for one during my visit to the hotel on XXX. The permit registration is undertaken via an iPad at the reception desk with signs also present in the lobby. The iPad asks for applicants to supply their vehicle registration number. The only confirmation provided to applicants that a permit has been successfully issued to the applicant after entering their registration number is presented on the iPad screen. Permit holders are not provided with a hard or electronic copy of any permit even though this would be technically very easy to facilitate by the Claimant if it requested applicant’s email addresses at the time of application. As a result, a permit holder has no information they can refer to in order to understand what agreement they have entered into with the Claimant nor are they given the opportunity to verify that the Claimant holds their correct information to ensure that the permit is correctly assigned to their vehicle.

13. I put it that a reasonable person would expect to be provided with a copy of any permit they hold to enable them to be considered bound by its terms, with a failure to do so placing applicants at an unfair disadvantage. The failure of the Claimant to provide applicants and permit holders as consumers of its services with a copy of their application suggests that the Claimant is not acting in good faith while administering its permit system, leading to unfair terms that lead to imbalance in the parties rights and obligations to the detriment of the consumer in contrary to paragraph 62 of the Consumer Rights Act 2015. It should be noted that this section of the Consumer Rights Act 2015 confirms that an unfair term is not binding on the consumer. It is also noted that paragraph 68 of the Consumer Rights Act 2015 place a requirement for transparency on traders.

14. In summary, it is my position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4 and order the Claimant to pay my costs assessed as £255.

I believe the facts contained in this Defence are true to the best of my knowledge and belief.