UK CPM vs c1223: Defence filed but CCJ received

[c1223]

Received a claim? Yes
Issue Date: 11th Jun 18
Have you Acknowledged the Claim?: Yes
Total Amount Claimed: £279.10
Claimant’s Name: UK Car Park Management
Solicitors Firm: Gladstones Solicitors
Original Creditor:
Original Debt (eg. Credit card/Loan/Overdraft) : Parking charge
Particulars of Claim: The driver of vehicle registration *** incurred the parking charge(s) on *** for breaching the terms of parking on the land at ****. The Defendant was driving the Vehicle and/or is the Keeper of the Vehicle. AND THE CLAIMANT CLAIMS £160 for Parking Charges / Damages and indemnity costs if applicable, together with interest of £17.87 pursuant to s69 of the County Courts Act 1984 at 8% pa, continuing to Judgement at £0.04 per day.
Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?): No

- I received the claim in the post. On 18th June, via the online MCOL service I submitted an acknowledgement of service.

- Defence emailed to ccbcaq@hmcts.gsi.gov.uk on 12th July (before 4pm).

- Automatic response received 12th July confirming receipt of that email

17th July I receive a Judgement for Claimant (in default), because apparently I "have not replied to the claim form". So it seems the CCBC lost my defence (which apparently happens). I would have chased after sending it, but I received an automated response confirming receipt of my email so I didn't think it was necessary.

I phoned up the CCBC and they said that they have made a mistake. I was asked to resend my defence and a copy of the receipt of the original email. I did so, and received a reply stating the "case has been referred to a District Judge or court appointed Legal Advisor for directions on how to proceed. It can take 8 - 12 weeks to receive a response at which point you will be notified accordingly."

So I'm now in a bit of a situation where the 8 - 12 weeks is obviously more than a month after the CCJ was issued. I tried calling the CCBC to get them to fast track the referral, but they don't seem to be able to do anything.

What should I do next? Should I submit an N244 form so the judgement is set-aside and go from there? How likely is it I will get my £255 or £100 back for doing so, because quite frankly if I won't get the £255 back, then it is just easier to pay the judgement.

For the record, the judgement is for a parking ticket that was issued when I wasn't parked. I believe that if a judge saw my case, there is absolutely no way I could lose.

Any help much appreciated.

[Amethyst]

The Judge will have to make an order that the judgment is set aside and the claim allowed to proceed, even though it is the courts cock up, they can't just rectify the issue - although they should have put a bar on the claim so the claimant can't proceed with any enforcement action.

They are very slow I'm afraid.

Was your defence a full defence ? ( if your defence was too basic / not compliant with CPRs you could still have an issue if the judge deems it without prospect of success )

But so long as your defence was okay, you filed it in time, then you should have the judgment just set aside and the claim to proceed. If the Judge did decide the judgment should stand ( which I can't see happening but it is a possibility) then you should be able to argue your case that it should be dated at the date the judge makes that decision rather than the original date ( and thus be able to pay it within the 28 days ) I don't think at this stage you do need to file an application to set-aside.... the rules in the CPR say that it should be setaside because it is the courts cock up.

Have you kept the claimant informed of what's happened at all?

[c1223]

Thanks for the reply AMETHYST.

So just to clarify, you don't believe that I need to submit an N244 form for a set-aside? Now the court have acknowledged receipt of my defence, should they automatically set-aside the judgement?

I haven't spoken to the claimant. Is it worth doing so? I guess I could ask if they would go for a set aside by consent.

Basically, I don't want the risk of having a CCJ on my credit report (even thought it would be satisfied) for the next 6 years.

What happens if I pay the judgement (within the 28 days)? Is it case closed? Presumably doing so would stop the motion of a judge from seeing my defence?

My defence was definitely a full defence (or so I believe). I've included it below for reference.

IN THE COUNTY COURT
CLAIM NUMBER: *******
BETWEEN
UK CAR PARK MANAGEMENT LIMITED (Claimant) -and-
****** (Defendant)

DEFENCE STATEMENT


Background

1. It is admitted that at the time of the alleged infringement the Defendant, ****, was the registered keeper of the vehicle, registration mark ****, which is subject of these proceedings. The vehicle was insured with three named drivers permitted to use it.

2. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by the statute in the Protection of Freedoms Act 2012 (“POFA”).

3. The Defendant denies any amount is owed to the Claimant in relation to the incident described in the Particulars of Claim.

4. It is denied that on **** the Defendant’s vehicle was parked at ****. The vehicle was stopped in order to remove another vehicle from the parking space in which it would then park.

4.1. The Defendant refers to Jopson v Homeguard [2016] B9GF0A9E where Charles Harris QC was clear on the concept of parking, as opposed to stopping. In this case, the driver was required to cope with a “vicissitude of short duration”.

4.2. Parking on street, there is no contravention if a vehicle’s driver is merely:

- “Opening or closing a gate or barrier to allow the vehicle to enter or leave premises, and it is not reasonably practical to stop elsewhere”

- “Using the vehicle in connection with the removal of any obstruction”

Therefore it would be disingenuous for a private parking firm to argue that they have more rights than a local authority engaged in parking management, or indeed that swapping one vehicle out of a bay to make way for the other breaches any parking terms in the few minutes that the activity took.

No Contract

5. The breach of terms referred to in the Particulars of Claim presumably refers to the supposed contract formed by the signage at ******.

6. The sign states “No parking on roadways at anytime”. The very act of entering into this alleged contract (parking) constitutes a breach of its terms, therefore making it impossible to perform.

7. The Claimant’s signage attempts to make a forbidding offer, which isn’t an offer at all. The basic requirement for a contract which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance, is not fulfilled, therefore no contract exists.

8. The Defendant refers to the cases of Horizon Parking v Mr J. Guildford [2016] C5GF17X2 and PCM (UK) v Bull [2016] B4GF26K6 which considered whether similar signage was forbidding in nature. In both cases, it was concluded that as the signage does not offer an invitation to park on certain terms there is no contractual offer and therefore charges could not be made on a contractual basis for vehicles that were not authorised to park.

9. Furthermore, no contract was formed due to the failure to provide adequate grace periods, the purpose of which is to provide sufficient time for an individual to read the terms of a contract and decide if they agree to them, as per The IPC Code of Practice B15.1:

“Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.”

Predatory Behaviour

10. The Defendant believes the Claimant has also breached the IPC Code of Practice B14.1 relating to “predatory tactics” by not allowing any grace period.

Failure to comply with Protection of Freedoms Act 2012

11. The Claimant has the right to recover any unpaid parking charges from the keeper of the vehicle subject to compliance with Schedule 4 of the Protection of Freedoms Act 2012. The Claimant has failed to meet the conditions of this Act.

12. The vehicle in question, at the time of the alleged infringement was under hire.

13. The Defendant admits that the vehicle-hire firm named the Defendant as the hirer.

14. The Claimant’s right to recover unpaid parking charges from the hirer of the vehicle is only applicable should the notice to the hirer be compliant with Schedule 4 of the Protection of Freedoms Act 2012. The notice must include certain documents as per the requirements of paragraph 14(2)(a) of Schedule 4 of the Protection of Freedoms Act 2012:

“the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;”

The documents mentioned in paragraph 13(2) are:

“(a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(b) a copy of the hire agreement; and
(c) a copy of a statement of liability signed by the hirer under that hire agreement.”

Absent such documents served with the notice to hirer, the Claimant has failed to comply with the Protection of Freedom Act, therefore the keeper is not liable for any charges.


I confirm that the above facts and statements are true to the best of my knowledge and recollection.

****

[Amethyst]

Defence looks fine ( full, I mean, I don't know about content as it's parking and I know naff all about parking )

Your current situation is that the

"case has been referred to a District Judge or court appointed Legal Advisor for directions on how to proceed. It can take 8 - 12 weeks to receive a response at which point you will be notified accordingly."

- any application to set aside will take more than the 28 days, so whatever happens this will be recorded on the file temporarily at least.

You could check with the court that they have put a bar in place so that the defendant can't file for any enforcement and at the same time ask them if filing a formal set aside application is worthwhile before the Judge has looked at the case.... but otherwise if the Judge reads the file and decides not to set aside the judgment due to the courts cock up you could apply at that point - he may well issue an order to do so in any case. I can't see a reason for the judgment not to be set aside - the court admit it was their fault and you have re-filed your defence, and it complies with the CPRs fine, so it should just come back with an order the judgment be set aside and the case proceeds as normal.

And yes, it would be nice if these things had black and white answers... sadly not xx

[c1223]

Thanks for the information. I thought as much. The way I see it is that I'm hoping to get a mortgage in the next 6 years, so paying £270 to ensure a clean credit report is probably "good value".

It's annoying, because obviously I could hope for a set-aside, or pay for it, but I'll then be £255 out of pocket. If I win (which I would have expected to) I would obviously be able to reclaim those costs, however, for the small risk in losing, I'd be £255 plus £270 out of pocket, and then I'd probably have a CCJ (albeit "satisfied") on my credit report.

So the court makes a mistake, and suddenly it turns into quite a risky (and potentially costly) situation. Extremely annoying given the likelihood of winning the case. I'd be interested if I could take this any further with the court in terms of their handling of the case? I imagine trying to get them to "pay" for the mistake will be like trying to get blood from a stone.

[Amethyst]

Yip, you should make a complaint though.

If the claim is only £270 then I think, in the grand scheme of things, set principles to one side, get it paid ... so you don't have any risk of this ruining your credit file. Entirely unfair, but, big picture wins Wish there could be more certainty.