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Set Aside CCJ - Advice on Defence Statement please
Saggi1975
Posts: 24 Forumite
Hello :-) I've posted on the forum about this before but in summary, I found out 2 weeks ago when checking my credit file that I have a CCJ from CEL. I've spoken to the court, and the CCJ was in Aug 2016. It was linked to an old address I left in August 2014. Details on the court report says 15/4/15, a ref number, the debt and damages are now £356.85. I can't find any details of what the alleged incident is or where it took place. I've never received anything from CEL before.
I'm going to ask for the judgement to be set-aside on the basis I didn't know about it and therefore didn't have a chance to defend any claim made against me (and I should be able to do that). Reading other threads I think this is ok as the justification for setting aside - would someone be able to confirm that please?
I know I need to add an outline defence to the set-aside application so the judge can see I have a good chance of defending it which is hard to do as I have no details of the alleged incident. I intend to put in my defence statement that CEL do not follow POFA Schedule 4 and therefore have no right to hold me liable for any claim purely on the basis I am the registered keeper of a vehicle and unless CEL can prove I was the driver, they have no right to hold me liable or pursue me for a parking claim.
Other examples I've seen cover a few other areas, such as CEL not meeting the required timescales for issuing parking notices, and whether a contract exists in the first place, but conflicting advice on whether these add much.
My draft statement is as follows: -
I am xxxxxxxxxx and I am the Defendant in this matter.
This my supporting Statement in support of my application dated 13/01/2017 to:
· Set aside the Default Judgement dated August 2016 as it was not properly served at my current address;
· Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
· Order for the original claim to be dismissed.
1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in August 2016. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until 23 December 2016 when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (xxxxx). However, I moved to a new address in August 2014. In support of this I can provide confirmation from xxxxx County Council showing my updated details for the purposes of paying Council tax.
1.2. I have also never received any previous documentation from the Claimant in this matter and I thus was never able to challenge the Claimant’s claim.
1.3. On the 03/01/2017 I contacted Northampton County Court to find out details of the Default Judgement. The court papers contain no details of the alleged incident and I do not know what the Default Judgement relates to.
1.4. On 03/01/2017 I attempted to contact the Claimant using information given to me by Northampton County Court. I was not able to get through to a member of the Claimant’s staff to discuss, nor have I received a response to my numerous answer phone messages left on the Claimant’s legal department answer-phone. This means as the Defendant, I still do not have any details of the incident the Claimant alleges has taken place, other than the summary of charges now owed, which is shown on the Court papers.
1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.
1.6. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.
1.7. Considering the above I was unable to defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.
2. Order dismissing the Claim
2.1. 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.
2.2. If the Claimant has obtained details of the vehicle for which the Defendant is 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.
2.3. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, any Notice to Keeper served by the Claimant must comply with 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.
2.4. A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.
2.5. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
2.5.1. Lack of Standing by Claimant: The Claimant is unlikely to be 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 sue for any damages or trespass.
2.5.2. 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.
2.5.3. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.
2.5.4. 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 Civil Enforcement Ltd.
2.6. 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.
2.7. In order to make informed decisions and statements in my defence as keeper of the a 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.
I WOULD BE VERY GRATEFUL IF ANYONE ON THE FORUM COULD LET ME KNOW IF THIS LOOKS OK AND IS STRONG ENOUGH TO GET A SET ASIDE AND SHOW A HOPE OF DEFENDING THIS IF IT COMES TO IT!
Many, many thanks in advance
I'm going to ask for the judgement to be set-aside on the basis I didn't know about it and therefore didn't have a chance to defend any claim made against me (and I should be able to do that). Reading other threads I think this is ok as the justification for setting aside - would someone be able to confirm that please?
I know I need to add an outline defence to the set-aside application so the judge can see I have a good chance of defending it which is hard to do as I have no details of the alleged incident. I intend to put in my defence statement that CEL do not follow POFA Schedule 4 and therefore have no right to hold me liable for any claim purely on the basis I am the registered keeper of a vehicle and unless CEL can prove I was the driver, they have no right to hold me liable or pursue me for a parking claim.
Other examples I've seen cover a few other areas, such as CEL not meeting the required timescales for issuing parking notices, and whether a contract exists in the first place, but conflicting advice on whether these add much.
My draft statement is as follows: -
I am xxxxxxxxxx and I am the Defendant in this matter.
This my supporting Statement in support of my application dated 13/01/2017 to:
· Set aside the Default Judgement dated August 2016 as it was not properly served at my current address;
· Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
· Order for the original claim to be dismissed.
1. Default Judgement
1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in August 2016. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until 23 December 2016 when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (xxxxx). However, I moved to a new address in August 2014. In support of this I can provide confirmation from xxxxx County Council showing my updated details for the purposes of paying Council tax.
1.2. I have also never received any previous documentation from the Claimant in this matter and I thus was never able to challenge the Claimant’s claim.
1.3. On the 03/01/2017 I contacted Northampton County Court to find out details of the Default Judgement. The court papers contain no details of the alleged incident and I do not know what the Default Judgement relates to.
1.4. On 03/01/2017 I attempted to contact the Claimant using information given to me by Northampton County Court. I was not able to get through to a member of the Claimant’s staff to discuss, nor have I received a response to my numerous answer phone messages left on the Claimant’s legal department answer-phone. This means as the Defendant, I still do not have any details of the incident the Claimant alleges has taken place, other than the summary of charges now owed, which is shown on the Court papers.
1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.
1.6. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.
1.7. Considering the above I was unable to defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.
2. Order dismissing the Claim
2.1. 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.
2.2. If the Claimant has obtained details of the vehicle for which the Defendant is 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.
2.3. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, any Notice to Keeper served by the Claimant must comply with 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.
2.4. A requirement of the Protection of Freedoms Act 2012 is that this any Notice to Keeper served by the Claimant must be served within 14 days of the date of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.
2.5. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
2.5.1. Lack of Standing by Claimant: The Claimant is unlikely to be 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 sue for any damages or trespass.
2.5.2. 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.
2.5.3. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.
2.5.4. 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 Civil Enforcement Ltd.
2.6. 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.
2.7. In order to make informed decisions and statements in my defence as keeper of the a 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.
I WOULD BE VERY GRATEFUL IF ANYONE ON THE FORUM COULD LET ME KNOW IF THIS LOOKS OK AND IS STRONG ENOUGH TO GET A SET ASIDE AND SHOW A HOPE OF DEFENDING THIS IF IT COMES TO IT!
Many, many thanks in advance
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Comments
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You ought to keep everything in one thread. https://forums.moneysavingexpert.com/discussion/5581374 (Ask a board guide to move this thread to your main thread)
(You cannot expect - or ask - for an order that the claim to be "dismissed" or a refund of your set aside fee in an application for a set aside of a ccj against you)0 -
Well he could ask on the set aside form that the Claimant be ordered to refund the set aside fee of £255 to the Defendant, either at this hearing due to the unreasonable failure to ensure that the letters were reaching the Defendant or at the full hearing in the event of a successful defence.(You cannot expect - or ask - for an order that the claim to be "dismissed" or a refund of your set aside fee in an application for a set aside of a ccj against you)
I would annotate that there.
Yes that is the main defence point and CEL are not allowed to suggest keeper liability, must have evidence of who was driving because the law is = POFA or nothing, as far as 'keeper liability' is concerned.I know I need to add an outline defence to the set-aside application so the judge can see I have a good chance of defending it which is hard to do as I have no details of the alleged incident. I intend to put in my defence statement that CEL do not follow POFA Schedule 4 and therefore have no right to hold me liable for any claim purely on the basis I am the registered keeper of a vehicle and unless CEL can prove I was the driver, they have no right to hold me liable or pursue me for a parking claim.
Timescales is connected to the point above, about non-POFA compliant NTKs (wording and deadline).Other examples I've seen cover a few other areas, such as CEL not meeting the required timescales for issuing parking notices, and whether a contract exists in the first place, but conflicting advice on whether these add much.
'No contract shown to be agreed with the driver' is very important to state as well because that opens up all sorts of defence arguments about the signage positioning, font size, ambiguity, number of signs, whether they were lit if it was dark, etc. All of which you can then bring into your defence 'skeleton argument' once you have been served with the other side's evidence.
Your set aside request looks strong and you are aware that you will need to show good prospects of success, at the hearing. Good. You do have them!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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One of the problems you have would be to show that they did use due diligence in obtaining an address - the default position is the last known address (CPR Part 6 - https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06).
You may be able to demonstrate that the council tax shows you lived at an address but that is not publicly available information so in itself it's not proof against the ability to locate an address.
CraigI no longer work in Council Tax Recovery but instead work as a specialist Council Tax paralegal assisting landlords and Council Tax payers with council tax disputes and valuation tribunals. My views are my own reading of the law and you should always check with the local authority in question.0 -
One of the problems you have would be to show that they did use due diligence in obtaining an address - the default position is the last known address (CPR Part 6 - https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06).
You may be able to demonstrate that the council tax shows you lived at an address but that is not publicly available information so in itself it's not proof against the ability to locate an address.
Craig
Very true - rightmove and zoopla show the property was sold in late Dec/early jan and there are electoral roll search engines. I don't use my married name now either which won;t have helped. thing is the court haven't issued a warrant yet as, guess what, they don't have my current address......
i only assume they checked DVLA records but I don't have any details of the alleged incident so who knows....!0 -
Very true - rightmove and zoopla show the property was sold in late Dec/early jan and there are electoral roll search engines. I don't use my married name now either which won;t have helped. thing is the court haven't issued a warrant yet as, guess what, they don't have my current address......
i only assume they checked DVLA records but I don't have any details of the alleged incident so who knows....!
Remember though, at the end of the day the one of overriding roles for the court is to ensure it is done fairly. A 'litigant in person' should get a reasonable level of assistance and guidance from the court to ensure the playing field is balanced.
I'd be tempted to argue that moving caused a disruption and that you admit it was likely sent to the old address but because of that you didn't get it - a better argument than just saying you didn't receive it - and as such couldn't defend it due to circumstances that were outside your control.
CraigI no longer work in Council Tax Recovery but instead work as a specialist Council Tax paralegal assisting landlords and Council Tax payers with council tax disputes and valuation tribunals. My views are my own reading of the law and you should always check with the local authority in question.0 -
you may be able to demonstrate that the council tax shows you lived at an address but that is not publicly available information
Actually, in many cases, it often is, and sometimes free. Try 192.com,You never know how far you can go until you go too far.0 -
you may be able to demonstrate that the council tax shows you lived at an address but that is not publicly available information
Actually, in many cases, it often is, and sometimes free. Try 192.com,
Council Tax information isn't publicly available (it's kept only within the council), what is available is the electoral information if someone isn't on the edited list. In most cases the data would be contemporary as people have moved in and then registered to vote.
CraigI no longer work in Council Tax Recovery but instead work as a specialist Council Tax paralegal assisting landlords and Council Tax payers with council tax disputes and valuation tribunals. My views are my own reading of the law and you should always check with the local authority in question.0 -
Hello :-)
Well I've got my set-aside hearing tomorrow - feeling very nervous now.....
CEL have already written to me saying they are disputing the set-aside, and that I didn't update DVLA records. But of course, that is only relevant (i.e. the DVLA point) if their claim is based on proof that I was the driver of the vehicle as well as being it's keeper, otherwise it was pointless using the DVLA records anyway since they only indicate the keeper?
Also going to take Craig's advice and say didn't update my details due to all the disruption going on in my life at the time...which is true of course (and why this is so upsetting).
You've all been so helpful so far - wish me luck! Any final words of wisdom or advice for tomorrow greatly appreciated!!
xx0 -
Well it can't be based on any such evidence because an ANPR camera PCN never can be - SO DO NOT SAY WHO WAS DRIVING!!if their claim is based on proof that I was the driver of the vehicle as well as being it's keeper,
It is VITAL to your later defence of this charge that you say you know nothing about this and in order to make an informed decision about your defence, you need the full particulars and evidence and contract/signs that they allege were breached by an unknown driver.
More than one person is insured to driver that car so on the balance of probabilities it wasn't you (take the insurance document as proof, if more than one named driver is shown - show the Judge). Take with you also a printout of Schedule 4 and highlight 9(2)f and state that Civil Enforcement are one of a number of parking firms who are known NOT to use Schedule 4 of the POFA wording in their notices so in law, they CANNOT hold a keeper liable, that's ''putting the cart before the horse'' as a Judge said recently.
Where a PPC chooses not to use the provisions of the statute that Parliament introduced in 2012, for parking firms to have keeper liability but ONLY with full compliance with Schedule 4 , their only other way to have a cause of action is if they have evidence of who was driving.
As they use ANPR (which is not CCTV and only captures VRNs) it is certain they will not know who was driving - and nor do you - and even of you did, the House of Commons at the reading of the POFA Bill in 2012 and the POPLA Lead Adjudicator himself in the Annual Report 2015 in an article called 'Understanding keeper liability', have both confirmed the trite law that a keeper cannot lawfully be presumed to be the driver on private land and is not somehow 'responsible' for the conduct of a driver on private land, under any other aspect of law. It's the POFA or nothing.
I would tell the Judge, this is not a penalty charge notice, it's a private one based on contract law and the Claimant needs to:
A) show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant
set out the facts on which it is asserted that the claimant has a cause of action against this defendant, and
C) identify the 'relevant obligation' of the defendant to pay parking charges and the 'relevant land' on which the parking is said to have occurred
D) state whether the claim is in relation to a 'relevant contract' or in respect of an alleged trespass or other tort (as per the POFA 2012 Schedule 4)
E) disclose full particulars and a contract, in order to evidence a claim in law
F) evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a brazen attempt at triple 'recovery' reaching £356.85 despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed).
Absent the above being produced in short order, the Defendant asks the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs for attending (travel, parking, missed wages or loss of leave AND the £255 Court fee in bringing this set aside case, despite not being shown to be liable for any parking charge at all).
You need to push for your costs & £255 back, showing the unreasonableness of a rk getting a CCJ from a company that does not use the POFA.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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CM
setaside , you pay the £255 , and convince the judge (gladstones !!!! up by sending paper a week later)
do you get your money back then , or only if you fight off a court claim that sadstones may start afterwards
if sadstones do not restart , have you had your money back , or is only if you win round two?
second question , how long before refund0
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