CCJ Set Aside

Court order has now arrived. It says:

Upon hearing the Defendant in person and hearing the Solicitor for the Claimant

IT IS ORDERED THAT:
1. Judgment set aside.
2. Costs in the case.

My understanding is that this means that whoever wins the actual case at court is also awarded costs arising from the set aside. Their set aside hearing costs were included as being just shy of £500. I've been reading what I can on this today, and understand that it would be unusual to be asked to pay for the Claimant's legal costs (which is all bar the advocate's attendance of £90), and that if the judge did award costs, it would be a punitive measure due to my apparent unreasonableness (if I lost).

No, it didn't, which I was expecting to see, given what I had seen on here. However, in this morning's post came a notification of allocation to the small claim. In there, it said that the claim was defended, and enclosed a DQ to be completed by 25th March.

I haven't actually sent my defence in at this point, as there hasn't been the opportunity to do so (not needed for the SA hearing, and not requested during or after the hearing). I also haven't received any POC at any point, and BW have just under a week to come back to me with my SAR. I'm planning to send my DQ and defence together, with a covering letter to confirm my defence enclosed, and that this is my first opportunity to present it. Obviously that goes to the court and to BW.

Please could I ask for comments on the defence.

As a reminder, facts are:

• RK received a (non-compliant) NTK in Dec, following the heinous offence of the driver parking in a permit only in March 2015 (no permit)
• I sent email to PPS to say out of time for NTK.
• Couple of begging letters from PPS and DRP
• Default judgment made in autumn last year, now set aside.

My defence:

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXX, of which the Defendant was the registered keeper from XXX until XXX, and the Claim appears to relate to an alleged debt where the driver parked at LOCATION on the material date.

3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). The assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with the Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. This part, I don't actually know yet, not having seen the POC. However, I've worked on the assumption currently that they haven't, and I can remove if they have

4. Due to the sparseness of the Particulars of Claim, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by consent. Again, not having seen the POC yet, I am going to assume that they haven't done this, but will remove if they have

5. The Protection of Freedoms Act 2012, Schedule 4, Section 8 allows for a creditor to hold a registered keeper liable for a parking charge where driver liability has not been established. The Claimant has failed to meet the requirements set out under the Act as the Claimant’s Notice to Keeper failed to comply with the statutory wording and/or deadlines set by the POFA. Any non-compliance voids any right to ‘keeper liability’.

6. The Defendant denies being the driver of the vehicle. It is not known who was driving the vehicle on the material date, and the Claimant has provided no evidence in this regard.

7. Further and in the alternative, it is denied that the Claimant’s signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The terms on the Claimant’s signage are displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant’s signage is capable of creating a legally binding contract.

8. The terms of the sparse signage make no offer available; there is no licence to park. It was permit holders only

9. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. In support of this, in the Supreme Court decision in Parking Eye Ltd v Beavis [2015] UKSC 67, confirmed that Parking Eye could not have pursued a sum in damages or for trespass. May need to remove this too, depending on what's in the POC

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue by means of litigation. They have actually provided me with the contract, but it is from 4/5 years prior to the material incident. I have seen something on here recently about a judge not allowing a claimant to rely on that. I need to dig that out.

11. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum may be recovered from the keeper is the charge stated on the Notice to Keeper. Assuming that the Claimant wishes to rely on their alleged letter dated APRIL DATE as the Notice to Keeper, in this case, the sum would amount to £100. The claim includes an additional £90, for which no calculation or explanation is give, and which appears to be an attempt at double recovery. Indeed, Debt Recovery Plus Limited works on a “no win, no fee” basis and there is no further information to evidence the claim for £60. The remaining £30 has not been explained.

12. In summary, it is the Defendant’s 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.

Morning all!

I thought I would just update for anyone tracking my adventures with PPS and BW Legal.

So the CCJ was set aside, and I had an order come through for a relisted hearing in June. I was stupid and didn't notice the date that the WS had to be in by, but luckily made the deadline (the usual - work has been mad, had a bereavement). I emailed the documents to BW Legal (they have emailed me documents before, so will confirm I have merely afforded the same courtesy). I did cc myself in to the email, so I know it went. I hand delivered my documents to the court. It wasn't a very big bundle, should it be?

I received their WS just prior to sending mine, and today I have received their bundle, which includes all of the set aside hearing stuff, as well as the claim. That seems odd to me, but I can only guess that it is to trip me up with my own statements between the events (which they will struggle with, given they are truthful and therefore no need to lie).

Interestingly, the principal balance has now decreased to a POFA compliant level, which I shall be pointing out appears to have changed throughout. In fact, the whole alleged debt can't seem to be pinned down to an exact figure.

They have said they won't attend but will send an advocate in their place.

Meanwhile, there are about 7 days left on the other LBC for a parking charge notice the year before the current claim. I'll be attempting res judicata (I think that's the right one, for lumping the claims in together), for that one. Pretty much the same circumstance but I didn't get any paperwork for that one at all, and hadn't been referred to a DRP/Zenith effort either.

What I will say to anyone going through the same process is that I have never had so much post. A genuinely huge amount of correspondence from BW Legal. My feeling is that it is all tactics to intimidate you into paying up before court. A lot of calling my a liar in their WS, a lot of ignorance on my part, a lot of "defence has no prospect of success", according to them.

Anyway, that is my current situation - back to limbo for about a month until they pay the hearing fee, and then I'll get my costs schedule together. Fingers crossed that they don't pay the fee!