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  • FIRST POST
    • JimboTuba
    • By JimboTuba 13th Oct 18, 6:06 PM
    • 2Posts
    • 0Thanks
    JimboTuba
    Set CCJ Aside - Advice on Defence and witness statement
    • #1
    • 13th Oct 18, 6:06 PM
    Set CCJ Aside - Advice on Defence and witness statement 13th Oct 18 at 6:06 PM
    Hi Everyone!

    So, I was served a CCJ in November 2017 by Civil Enforcement Limited (CEL). I've only just found out as I've applied for credit, been turned down, signed up for Experian and saw that there was a CCJ. Contacted the court to be told its good old Civil Enforcement Limited.

    To cut a long story short, between May-June 2016 I contacted them, ZZPS and Wright Hassell asking for evidence as I had only received a 2nd letter from CEL and had no idea where the fine was from and didn't have any evidence from them. Wright Hassell emailed me on 29 June 2016 saying that it was 'on hold' and they had referred the matter to their client (CEL or ZZPS). I heard nothing else from any of the parties. I moved in March 2017 and obviously did not get the court papers.

    Please can someone advise on my defence, which I have adapted from another feed that worked:

    I am XXX and I am the Defendant in this matter.
    This my supporting Statement in support of my application dated (Date when submitted) to:
    Set aside the Default Judgement dated November 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;
    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 November 2017. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement until 12 October 2018 when I was doing a check on my credit file after being refused credit. I understand that this Claim was served at ADDRESS. However, I moved to a new address in March 2017 where I registered on the Electoral Roll. In support of this, I can provide confirmation in the form of a Tenancy Agreement.

    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 12/10/2018 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 12/10/2018 I attempted to contact the Claimant using the 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. 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 standig to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able to 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.

    2.5.5. The Defendant’s whiteness statement, attached, details the numerous and extensive measures used by the defendant to contact from the claimant; the claimant’s bailiffs, ZZPS; and, their solicitor’s, Wright Hassell. I submit that the in lack of communication from these parties to the Claimant, they have attempted to knowingly trick the defendant into receiving an order from the court to pay the ‘Parking Charge Notice’ which the claimant has still not received evidence of an alleged breach of contract.

    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.

    Witness Statement

    I did not receive an initial notification of the fine in line with the Civil Enforcement's process.

    I made immediate contact with CE on 22/04/2016 providing my contact details to identify what the fine was for; with no reply or call (Email 1).

    In a phone call with the claimant requesting evidence, a representative of CE stated that she would forward the first letter again and reset the timescales, this did not happen.

    I emailed again on 06/05/2016 after receiving a letter stating the issue was being referred to their solicitors if the fine remained unpaid (Email 2).

    I emailed both ZZPS and CE on 31st May with no reply (Email 3).

    I emailed Wright Hassall (WH) on the 4th June after receiving a letter from them stating that I had not contacted them providing further information and copies of the emails to both CE and ZZPS (Email 4).

    I received the first response from ZZPS on 20/06/16 stating that the PCN had been passed to their solicitors WH (Email 5).

    I received an email from WH on 29/06/16 stating the account had been 'put on hold' (Email 6).

    I made numerous phone calls to CE, ZZPS and WH over the course of this correspondence. Every email had my contact details on there and received no call from any party, the only phone correspondence was from myself.

    I moved from the property on 5th March 2017 (Document 1) and received no further communication from any party. I recently applied for finance and was refused due to bad credit. On 12/10/18 I first realised that I had been served with a CCJ when signing up for Experian Credit Expert.

    I did not receive the court papers as I had moved, however Civil Enforcement Ltd. ZZPS and Wright Hassall had my email and phone number from the numerous emails and did not use any of these contact methods to notify me or gain a response. The order was made against me in my absence and if I had known about the court date, I would have put in a defence. If my defence was not sufficient and I lost, I would have paid the fine.

    I have requested evidence on numerous occasions from Civil Enforcement, ZZPS and Wright Hassall, all of who have not provided the evidence. I am happy to pay the PCN if I did not follow the terms and conditions of parking in a location I still do not know. I believe that the claimant should cover the cost of the fees associated with this application; they had multiple ways to contact me and chose not to; and, their solicitors did not update me after our last contact.

    I am able to provide further evidence of calls between myself, Civil Enforcement and Wright Hassell if required
    Last edited by JimboTuba; 14-10-2018 at 5:08 PM. Reason: Adding additional text
Page 1
    • KeithP
    • By KeithP 13th Oct 18, 6:12 PM
    • 11,339 Posts
    • 11,870 Thanks
    KeithP
    • #2
    • 13th Oct 18, 6:12 PM
    • #2
    • 13th Oct 18, 6:12 PM
    It really isn't a good idea to publish your full name on a public forum.

    Nor is it wise to to use you name as your forum username.

    For the first, can I suggest you edit your post to remove your full name.

    This short extract from The MSE Forum Guide - Frequently Asked Questions & Rules will help with the second point:
    Q. How can I change my username?

    A.
    In most circumstances, this is not permitted.

    The only reason we will change your username is if it puts your privacy at risk. This usually means you've inadvertently registered using your name, email address or something that gives away your identity within your username.

    If you fall into this category, email forumteam@moneysavingexpert.com and request that it is changed, giving three alternative usernames in order of preference.

    Also, it might be a good idea to include a Draft Order, perhaps something like the one proposed here:
    forums.moneysavingexpert.com/showpost.php?p=74839003&postcount=15


    Back to your post...
    In para 1.4 the date is wrong.
    Last edited by KeithP; 13-10-2018 at 8:37 PM.
    .
    • JimboTuba
    • By JimboTuba 14th Oct 18, 5:20 PM
    • 2 Posts
    • 0 Thanks
    JimboTuba
    • #3
    • 14th Oct 18, 5:20 PM
    • #3
    • 14th Oct 18, 5:20 PM
    Thanks Kieth P and changes afoot.

    Should I form the stuff below into the order or is the order in addition to the defence below?

    Cheers!

    Jimbo
    • KeithP
    • By KeithP 14th Oct 18, 5:22 PM
    • 11,339 Posts
    • 11,870 Thanks
    KeithP
    • #4
    • 14th Oct 18, 5:22 PM
    • #4
    • 14th Oct 18, 5:22 PM
    Glean what you can from that thread I mentioned.
    .
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