Setting aside CCJ/consent order

[Lotti_16]

Hello,

I am just wondering if someone can give me some advice please?

I recently found out that VCS have issued a default CCj judgment of £275 on my account in regards to an apparent parking fine in feb 2017. This only went to court August 2020.

A couple of days after checking my credit score and realising this was on my file I rang the county court for details. It appears VCS had sent all correspondence to an address that I have not lived at for over 3years. I updated DVLA and Electoral roll so they clearly didn’t try and establish my new address.

I have contacted VCS asking them if they will consent to set aside the order.. however due to needing to remortgage and being time sensitive I submitted a N244 form and paid £255 asking to set aside as I was not served the papers correctly and I was not able to pay or defend.

My application has been accepted and I am awaiting a court date. However I have now received an email from VCS saying if I pay a reduced fee of £175 they will draft a consent order to present along with my set aside application.

Am I better off just taking it to court now as I have paid the £255 to get set aside or pay them and hope it comes off my file ASAP. I’m also sceptical of paying and then it looking like Iv agreed I’m in the wrong and the judge only making ccj as settled rather than removing off my file.

Any advice would be greatly appreciated

thank you

[MIKE770]

ostell

[R0b]

The general position is if you pay the alleged judgment amount then you will be deemed to have admitted liability and there is no guarantee that a judge will grant a set aside because setting aside default judgments does not end things, rather it reverts back to the defence stage and proceedings continue. How can you continue legal proceedings for something you've already paid?

The other point is that you have asked them to consent and if they decided not to get back to you in time then that's their fault (If I remember their email auto reply used to say that they would get back to you within 28 days regardless of the issue which is ridiculous but hey ho). You've incurred £255 and if VCS did not adequately check your last known address and had no reason to believe you were living at that address then I think you should definitely push ahead with the hearing. Again, why would you agree to paying £175 and lose out on the £255 you paid for the application? It makes absolutely no sense and if the default judgment is set aside you should ask for the cost of your fees back at least and any other costs incurred in preparing the application e.g. witness statement drafting, evidence gathering etc.

If it were me in your shoes, I would go back to VCS and point all of this out, explain your intentions to go to a hearing unless they consent to setting aside the default judgment and agree to pay the £255 application fee you've incurred due to their failure to respond. I would accept nothing less but that is entirely your choice.

[Lotti_16]

Thank you R0B for your swift response. Yes they state they aim to reply within 28 WORKING days! Hence why I submitted the N244 form as I was not willing to wait that long, and with the possibility of them not even replying. I believe they have now only replied as they know I have started proceedings.

i was thinking the same in relation to not paying them as I am already out of pocket for something I was not even aware existed! I was never aware of any proceedings and if I had been I would have dealt with it and would never have incurred charges, a CCJ and now court costs.

Can I just ask at the hearing about my application fee? Is it even likely the judge will get VCS to pay that fee?

So if VCS have agreed to draft a consent order once I pay (which I am not willing to do) However for my information
1. Shouldn’t I be doing the draft order and
2. Would I not pay them once the set aside order has been made anyway?

I will draft an email to send back to VCS outlining all
of this and asking them to cover the £255 application fee. If they do agree to set aside will I still need to go to a hearing?

thank you

[ostell]

If your application has been accepted then as the claim was sent to the incorrect address then this should, I believe, result in an automatic set aside. You will then have to submit a defence argument etc. as if the case is starting from scratch.

SAR request to VCS to get all the paper work they hold about you and your vehicle. They have 30 days to respond.

Let it go back to court, you will be claiming your set aside fee anyway. Even if you lose you may be able to reduce the £275 and get the judge to allow the £255 to be removed from the judgement. If you pay before 30 days then there will not be a judgement against you.

If you hunt around here and the pepipoo forum you will find many reasons to fight VCS. Some have been able to have cases thrown out because of parking companies abuse of process in claiming items they are not entitled to. This case is interesting reading

[Lotti_16]

Thank you OSTELL I will take a look. I am not even sure where the £257 has come from, if a parking charge. Apparently the ticket is from an Aldi car park in Sheffield when I was at university.

I knew nothing about this ticket, and my ex partner was also insured on my car. Therefore I am not sure if it could have been him who entered into a contract with them when using the vehicle.

however if I had known about it or any court action I could have dealt with it before it got this far. In regards to my defence I have already included a statement in the N244 form is this not enough?

thank you

[DE DOGS]

It appears VCS had sent all correspondence to an address that I have not lived at for over 3years. I updated DVLA and Electoral roll so they clearly didn’t try and establish my new address. It seems a common practice that way they gain judgment with no opposition.

[ostell]

They are not allowed to access the DVLA twice, but there are other ways to find people and it was unreasonable of them to assume that no response meant you still lived there.

So after all this time you cannot state for certain who was driving the car. If VCS have failed to comply with the requirements (probably not) of POFA then they cannot hold the keeper liable.

They are allowed to claim £25 for the court fee and £50 for legal costs. POFA allows them to claim the original amount from the keeper but they add on extras. The case I referenced earlier, Wilkinson, references that.

[R0b]

With the exception to claims allocated to the small claims track (which this is not), the court has discretion to make an order for costs (CPR 44.2 says this). However, CPR 44.2(2)(a) confirms that the general position is that the successful party should be entitled to their costs. There are nth case decisions about how this should be interpreted but one relevant case you can use to back this up is Straker v Tudor Rose (a Firm) and that's a Court of Appeal decision so has binding authority on lower courts (link to case here).

There are two key paragraphs you can refer to support the general position and have highlighted some parts:

11. How then would the rules suggest one should approach a case such as this? The court must first decide whether it is case where it should make an order as to costs, and have at the forefront of its mind that the general rule is that the unsuccessful party will pay the costs of the successful party. In deciding what order to make it must take into account all the circumstances including (a) the parties' conduct, (b) whether a party has succeeded on part even if not the whole, and (c) any payment into court.

12. Having regard to the general rule, the first task must be to decide who is the successful party. The court should then apply the general rule unless there are circumstances which lead to a different result. The circumstances which may lead to a different result include (a) a failure to follow a pre-action protocol; (b) whether a party has unreasonably pursued or contested an allegation or an issue; (c) the manner in which someone has pursued an allegation or an issue; and (d) whether a successful party has exaggerated his claim in whole or in part.

If VCS are going to consent, then ideally you should draft the order but there is no harm in agreeing with VCS that they should prepare the draft order and ask them to provide you a word version so you can comment/edit if you don't agree with certain bits but anything that says you agree to pay them should not be accepted or if there is a 'no order as to costs' as this means both sides bear their own costs.

Although Ostell is more familiar with parking ticket situations than I am, personally I would not place too much emphasis on that court order and decision. It's a County Court decision which doesn't have any binding authority on other County Courts and is definitely open to appeal since a decision to strike out the claim as a whole as an abuse of process because parking companies have exaggerated their costs is what we call in the legal realm as draconian. There's plenty of legal authorities that confirm this and should only be used sparingly in cases where sums claimed are so serious that it warrants a strike out of the total claim. The view of the courts is that striking out part of the claim is the preference whilst the rest of claim which is not opposed can continue. The time for arguing a reduction of the sums would be at the hearing itself as part of your oral arguments.

It might be helpful to upload your defence and witness statement (personal info redacted) and we can see what you've put to the court. Normally putting forward a defence would be in draft format to show the judge that there are reasonable grounds to defend the claim and therefore an opportunity to set aside the judgment on discretionary grounds rather than mandatory which sounds like what you are trying to achieve here. If you haven't done so already I would recommend you read my guide on set aside applications to familiarise yourself as to what you should expect and the terminology or criteria to be met in order to set aside (link here)

If you need any feedback on your response to VCS then I suggest you post a draft up here and we can comment.

[Lotti_16]

Hi R0B thank you. I will upload a copy of the court application i submitted. I did utilise some advice on here from previous people asking questions . I would be grateful for any advice on my defence or what i need to get across at my hearing.

Thank you

[Lotti_16]

They are not allowed to access the DVLA twice, but there are other ways to find people and it was unreasonable of them to assume that no response meant you still lived there.

So after all this time you cannot state for certain who was driving the car. If VCS have failed to comply with the requirements (probably not) of POFA then they cannot hold the keeper liable.

They are allowed to claim £25 for the court fee and £50 for legal costs. POFA allows them to claim the original amount from the keeper but they add on extras. The case I referenced earlier, Wilkinson, references that.

Thank you OSTELL. Can i ask what you mean by if VCS have failed to comply with the requirements of POFA?

thanks

[R0b]

That witness statement looks familiar.. could be one I drafted can't remember. Anyway, a witness statement is not your defence, it is just evidence in support of the set aside application, not the underlying claim. If the judgment is set aside then you will be required to file a defence.

I think the first point is to provide a response to VCS and set out your position before you go off gallivanting and preparing for the hearing, especially if you haven't been given a date yet. See whether they respond and consent to setting aside the judgment or not.

[Lotti_16]

Thank you R0B. Yes possibly is something you drafted.

So once the judgment is set aside do VCS then have to RE send me the fine and it start again? Will I have to attend a different hearing? Due to this being time sensitive I’m tempted just to pay the original fine to draw things to a close ASAP. However if it will all be heard at one hearing then this is fine.

Also what do you think I should include to VCS as they have said they would draft a consent order if I pay £175. Is this the same as them agreeing to set aside?

thanks

[MIKE770]

The definition of what constitutes a "credit agreement" for the purposes of the CCA is a broad one and it extends to cover (without limitation) loan agreements, overdrafts, hire purchase agreements, conditional sale agreements, pawn agreements, credit card agreements and other agreements where goods or services are supplied, but payment for which is deferred or credit provided.

[R0b]

When a judgment is set aside, it reverts to the defence stage of proceedings so you will need to file a defence. What you have to realise is that the court process is slow and sometimes unpredictable so from start to finish, dealing with a claim would normally take around 6-8 months in a County Court setting. Applications to set aside a default judgment are known as an interim hearing, they are not a trial hearing which is where the court determines the outcome of the claim.

If you want to pay for the ticket then that is entirely your choice but even if you get a consent order, you will need to wait for the court to update it's registered and in turn for credit reference agencies to update their records, so that could still take a month or two. I'm afraid nothing is a quick fix so you will need to weigh up your options.

To protect your position, you would need VCS to agree to what is known as a Tomlin Order. It is a form of a consent order but usually contains terms of settlement such as agreeing to pay the other a sum of money or do XYZ - this is because a court cannot compel a party to pay another under these circumstances.

I would be inclined to offer to settle on a Tomlin Order and agree to pay the difference between your costs incurred i.e. the £255 and what they originally claimed. Of course, they don't have to accept and insist on not paying you zilch whilst still cheekily asking for £175.