Hit with 8 tickets dating back to 2014

Hi guys,

I am beyond !!!!ed off an exasperated with everything. Court papers issued on 27th November. Says issue date taken as 5 days after. So when the paperwork was forwarded from the old address I logged into MCOL and acknowledged service. I do not have a confirmation email but I had seen it logged. Then accidentally I deleted the code to access online. Today i submitted defence via email (less than 28 days from issue date). I got an email bounced back that said :

"our reply is being returned to you as it was received outside the time permitted and Judgment has been entered against you. If you think that a Judgment has been entered against you incorrectly and you would like to remove it you can apply to set the Judgment aside using the N244 ‘Application Notice’. Please read this letter and the enclosed notes thoroughly before sending the application to the court as incorrectly completed applications will be returned to you."

Now I am not sure what has happened here but to say I am livid is an understatement. My wife is due to give birth tomorrow and the thought of completing more forms etc is just horrific. Is there some chance this is just a mistake and they have missed the acknowledgement of service?

Hi Quentin,

So i have an email stating that I registered with the with the government gateway on 13/12/17 but no confirmation of acknowledgement of service. Is that normal?
I have done a search and a default CCJ was granted against me on the 20/12 (1417)- which I can only assume means that the acknowledgement of service was too late? I have no idea

I don't want these !!!!!!s to get a single penny. If I appeal immediately will it stop the CCJ going on my record? We are due to remortgage imminently

I have done a set aside before its just the stress of it all again

Hi Guys

I have drafted my motions for the N244 set aside. My wife is a bit devastated that this all seems to be cocked up again.
IN THE COUNTY COURT BUSINESS CENTRE
Claim No.: xxxx

Between

xxx
(Claimant)

-and-


xxxxx
(Defendant)

___________________________________________________________________________

Set Aside Motion
___________________________________________________________________________


I am xxxxx and I am the Defendant in this matter.

I petition the court for the following motions:
Set aside the Default Judgement dated December 2017 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 as well as other costs;
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 on xxx for the value of £1417. However, this claim form has not been served at my current address XXXXXX.

1.2. The defendant understands that this Claim was served at an old address (xxxx). However, I moved to a new address in March 2016 (xxxxx). In support of this the defendant can provide confirmation from Manchester County Council showing his updated details for the purposes of paying Council tax

1.3. No mail re-direct to this property was in place at the time of any paperwork received from the claimant’s solicitors or from the court. The defendant can provide proof from Royal Mail that a redirect was in-situ until the 5th of June 2017. This can be corroborated by the witness statement of Dr XXXXXX.

1.4. The landlord of the former property had been informed from the current tenant that some mail for the old tenants had been gathering in his house. This was delivered to the defendant’s home on 13/12/17. This can be confirmed by the witness statement of Mr XXXXXXXXX.

1.5. On returning from work on the evening of 13/12/17 the defendant opened all the mail to find that he had received court papers which he had been previously unaware of. No correspondence had been received to from the claimant or their solicitor. He immediately logged into the MCOL website and completed an acknowledgement of service request online. An email from the Gateway registration confirms the account was created. No further email was received from MCOL.

1.6. When the defendant attempted to log back into MCOL a few days later he had inadvertently deleted the record and contacted the court for clarification. The advised that the documentation could be submitted via email. The email was sent on the 22/12/17 and this is supplied. The defendant was completely unaware that a judgement had already been granted as he was under the clear impression that his acknowledgement of service request had been received and he had 28 days from the date of service to file a defence.

1.7. After taking advice on his defence he attempted to submit his statement via email to the court within the 28 days of the date of service on the paperwork (30/12/2017). At which point he was informed a default decision had been granted.

1.8. Following receipt of this information from the court the client performed a trustonline.org.uk search to confirm that a CCJ had been granted for the sum of £1417.

1.9. On the next working (29/12/17) day the defendant contacted the court to identify a record of the acknowledgement of service online. Following discussions with the clerk…..yet to come…

1.10. The clerk’s office was able to advise that the judgement was awarded to SCS Law on behalf of UKPC and advised how to complete an N244. The paperwork was completed in a timely manner within a period of to allow the defendant to complete their argument for set aside and dismissal.

1.11. The defendant believes the Claimant has behaved unreasonably in pursuing a claim against the defendant without ensuring they held the Defendant’s correct contact details. The defendant has had previous correspondence with SCS Law and it is not unreasonable to assume they have the correct address on file.

1.12. On the basis provided above the defendant would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

1.13. In December 2016 the Right Honourable Sir Oliver Heald QC MP announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. He said “This consultation will make sure the right balance is struck in allowing companies to pursue debts, but while guaranteeing the appropriate level of protection to those who unwittingly owe money.” One of the specific points of the consultation was to assess the role of parking companies and examine how drivers are informed of fines.

1.14. Considering all the above the defendant was unable to defend this claim. He believes that the Default Judgement against him was issued incorrectly and thus should be set aside and indeed dismissed.


2. Order dismissing the Claim:
2.1 I (The defendant) assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

i. The Claimant has no standing to bring a case
ii. The Claimant has no capacity to form a contract with the motorist
iii. The signage across the sites did not offer a genuine contract with the motorist
iiii. Even if a contract could be formed; it would be void as in breach of the Unfair Terms in Consumer Contract Regulations
v. The Claimant has no Cause of Action
vi. Even if a debt existed, it would be due to the land-owner, not the Claimant
vii. The Claimant has misrepresented its day-to-day business costs as a loss
viii. The defendant had a valid parking permit for Lakeside Rise, Blackley, as he was a tenant at the property at the time of the tickets being issued. The defendant also had a parking permit for Burnley General hospital as he worked as a ST3 Trauma and Orthopaedic registrar there from August 2013- August 2014.

2.2 The Claimant manages the car parks. The Claimant is not therefore the Land-owner at either site. Neither has it claimed to be an Agent. The Defendant has the reasonable belief that it is merely a contractor. The Claimant has not therefore explained what authority it has to bring the claim. The proper claimant is the landowner.

2.3 A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.
• 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.
• The defendant submits 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 he is the Registered Keeper. He further submits that any loss to the landholder at Burnley Hospital (which would be the only party able to claim such losses) would be at most a few pounds.

2.4. The Defendant is aware that the Claimant relies on ParkingEye v Beavis. The Defendant submits that the present case can be distinguished for three reasons:
• In Jopson v Homeguard [2016] B9GF0A9E, it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking. The Supreme Court found that £85 was not a genuine pre-estimate of loss in Beavis as there was no direct loss to the parking company. Seven of the eight alleged ‘parking charges’ in this case relate to residential parking.
• It was established that ParkingEye paid a premium of £1000 per week to operate at the site in the Beavis case. This was ruled to give them standing as Principal. In the present case they are acting as a contractor to the land-owner.
• In the Beavis case there was also a clear chain of command between the land-owner and ParkingEye established by the production of original copies of the contracts.

If the Claimant wishes to rely on Beavis, the Defendant is put to proof that such a contract exists and that UKPC are to provide an un-redacted, original contemporaneous copy of the contract between UKPC and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to UKPC.
Also the Claimant has claimed that “ParkingEye v Beavis” confirms that any amount will be recoverable provided it is proportionate to a “legitimate interest” which is not true. The Beavis case found that the sum of £85 in that case alone, with the particular signage and adequate notice in that case, was not a penalty. The Judges held that that particular case was 'entirely different' from most ordinary economic contract dispute. In this case UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

2.5. If the driver happened to see the signage (if any were present) on each occasion, signs are located at a distance in pale, unlit and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. The signs do not comply with BPA Code of Practice.

2.6. It is further noted that the signage at Lakeside has several different placards making it impossible to know which are supposed to be in use. In several areas it is evident that the rules and regulations governing the carpark have been altered (Old glue marks on the walls).

2.7. The dates of the PCNs range from early 2014 to early 2015, and in that time it is averred that the signs at both sites will have changed, been replaced or updated (to reflect changes in the BPA Code of Practice) and indeed some may have been removed or damaged. There is no signage that is supplied by UKPC that existed throughout the time-span of this claim and it is argued that this operator did not comply with the 'signage' and 'entrance signs' sections of the BPA Code of Practice as it changed between 2015 to date.

2.8. Such is the density and complexity of the text on the signs that the most onerous term – the parking charge – is buried amongst a mass of small print and does not comply with Denning MR’s “Red Hand Rule”.

2.9. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.

2.10. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was recently investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis. The Claimant is put to proof that the photographic evidence it has is accurate and true and that any and all previous correspondence has been sent to the Defendant as claimed.

2.11. Due to the length of time that has passed, the Defendant has little to no recollection of the days in question, which were unremarkable. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car some years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

2.12. Due to the Claimant’s history of lack of compliance with regulations, the Claimant must prove that it has fully complied with the strict requirements sent out in POFA 2012 Schedule 4. As the Defendant is the registered keeper of the vehicle, these regulations must be complied with in order to hold the keeper liable.

2.13. The POFA restricts liability to the sum of the parking charge itself and the BPA Code of Practice has a ceiling of £100. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £60 to each PCN and that those sums formed part of the contract in the first instance.

2.14. The Particulars of Claim submitted by the Claimant is not compliant with the Practice Directions. The Claimant has not attached the contract(s) it wishes to rely on that it alleges were in place at the time. The Claimant has not clarified whether it is seeking keeper liability and has not attached any confirmation that is has gone through the necessary steps to do so. The Claimant has not clarified if there are any amounts claimed over and above the initial charge and on what basis they are being claimed.

2.15. The POFA 2012 Schedule 4 states that before seeking keeper liability, the Claimant must demonstrate that there was a “relevant obligation” either by way of breach of contract, trespass or other tort. The Claimant is put to strict proof that the “relevant obligation” existed and that the correct procedure was followed to transfer liability to the registered keeper.

2.16. The POFA 2012 Schedule 4 states that before seeking keeper liability, the Claimant must demonstrate that there was a “relevant contract”. The Claimant is put to strict proof that a “relevant contract” existed to pay £100 and that there was (as defined in 2(3) of the statute) 'adequate notice' of that sum and legible terms.

2.17. The claimant alleges that on seven occasions no valid permit was on display. As the registered keeper the defendant can produce the permit which does not stipulate which bay number the car had to be parked in. This permit was supplied by the landlord when he moved into the property. In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

2.18. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

I believe the facts stated in this Defence Statement are true.


………………………………………………………. ………………………
(Defendant) (Date)


Supporting evidence includes:
mortgage statement
2 witness statements
confirmation of contacting MCOL with lost number
parking permit
photographs of the site - with poor unreadable signage, differing signage

Any other ideas. I really dont know what has happened with the acknowledgement of service as I definitely did it. I would swear on the bible and my wife had seen the completed document on my phone. so strange

Hi Quentin,
Sorry I forgot that bit. I have since added it.. would you put it at the very top with the two motions?