Claimant agrees to Set Aside CCJ- Should I agree to their terms?

[Harrybear]

Hi Legal Beagles,

I have recently written to the solicitors of a parking enforcement pre-N244 applicant asking for their consent to set aside a CCJ ruled against me for a PCN that was:

1) Was issued in error as I had full approval to occupy the space by my employer.

2) All correspondence was sent to a previous address (Despite me being on the electoral, updating V5C four months prior to judgement & being available on land registry)

The solicitors have kindly written to me explaining they're happy to consent to set aside if I pay the original fine of £250.

So my question is should I:

A) Accept this, save time and move on knowing my credit file is saved- pay the £250 & the (?£100 application to the court)
B) Try and haggle
C) Continue with the N244 and re-cooperate costs.

Thanks in Advance.





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[MIKE770]

ostell

[ostell]

Please stop flagging me, I do not know the set aside process

[jaguarsuk]

No I would apply for set aside without consent as the solicitor are trying to con you into paying their client.

They served the wrong address and therefore you have the right to set aside, apply using form N244 for set aside pursuant to CPR 13.3 and ask for costs of the application to be paid by the claimant to the defendant.

The cost will be £255, but the claimant will have to pay that to you if you are successful in set aside.

The fact you can evidence the parking charge notice was issued in error I would also ask for summary judgement pursuant to CPR 24.2(a)(i) on the grounds 'that claimant has no real prospect of succeeding on the claim or issue.'

Include a witness statement detailing the reasons it should be set aside and that the PCN was issued in error with evidence of that, plus the correspondence from the solicitor regarding the set aside as evidence for costs.

If successful on both parts you'll clear your credit file up, the claim will be gone and they will owe you the £255 you paid to make it all happen.

I say 'if' because nothing is a guarantee, but you should at the very least get the set aside.

[Harrybear]

jaguarsuk Thank you very much for your reply. I tried haggling with them slightly but to no avail, so will continue with the application without consent.

I've been reading up on the process but just to be clear; after paying the court the fee- do I need to submit a N244, Draft Order, Draft Defence and Witness Statement? Is that everything or am I missing anything else?

Sorry I am new to all this so any advice would be much appreciated. Thanks

[jaguarsuk]

You will need to submit those in triplicate with the fee or at the time of paying it at the court counter. You don't necessarily have to submit a draft order, as a litigant in person it wouldn't be expected of you and because you are asking for set aside and summary judgement I would let the court clerk do the order after the hearing.

On the N244 tick that you want a hearing because there is going to be one whether you ask for one or not. Don't estimate a time for it, let the judge decide how long they want to allocate.

If you want to post drafts minus personal or identifying information for review do feel free and I'll take a look.

[Harrybear]

jaguarsuk Thank you very much for this. I am working my way through the documentation now but If you could kindly review it once completed, that would be fantastic.

One question- Would a screenshot of the change in address on the electoral roll (that is noted on my credit file) serve as appropriate evidence to the court? It is dated to the month and clearly shows a change pre- PCN. This appears to be the only place I can find evidence. I cannot find any original documentation from Gov.uk etc.

[Harrybear]

jaguarsuk Here is my Witness Statement- Please can you kindly critique:

I, xxxxxxx of ADDRESS being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of the N244 application for an order that the judgment in this case, (Claim No.XXXXXXX Judgment dated xx September 2021) be set aside.

2: I believe the conditions of the judgement to have been in violation of Civil Procedure Rules 13.3: (1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

1. To my surprise and great concern, I recently discovered the existence of the Default County Court Judgement (XXXXXX) dated xx/09/2021 after checking my credit file on the xx/12/2021. I emailed the County Court Business Centre and received correspondence about the particulars of the case on the xx/12/2021. The offence of the penalty charge notice was dated xx/03/2021.

1. I, the defendant, moved house on the xx/12/2020. Shortly after this I updated the Electoral Roll in Feb 2022 (Exhibit, A). On the xx/05/21 (4 Months prior to judgement) my V5C form was updated with the DVLA (Exhibit, B). I appreciate there was a delay in this however the update took several months due to the DVLA having a backlog post-lockdown. Furthermore, on the 14/12/2020 the Open HM Land Register was also updated to include my details and property (Exhibit, C). Despite this, I had received no correspondence whatsoever to my current residence.

1. On the xx/12/2021 I wrote to SOLICITORS asking them for their consent to set aside setting out the reasons listed in paragraph 3 above. They responded that this would only be granted if I were to settle the outstanding debt of £2xx to their client xxxxxx xxxxxx xxxxxx Limited. To mediate, without prejudice I offered to pay half the amount, but the claimant refused this request.

1. With regards to the validity of the PCN, I had full permission to occupy the space by the Owner, xxxxx xxxxx xxxxx See permit (Exhibit, D)

1. I therefore respectfully request that the Court sets aside the judgment in this claim and allows 14 days for me to submit my defence.

I, xxxxxx, the Defendant, believe the facts stated within this Witness Statement to be true.

Signed: ________________________________

Dated: ________________________________

[jaguarsuk]

Apologies I have been dealing with a couple of legal situations of my own and haven't been logging in. Did you submit this?

[Harrybear]

jaguarsuk No worries. I did submit this, along with a draft defence and all the appropriate evidence. Just awaiting a date now- could you kindly advise any common pitfalls I should be aware of?

[jaguarsuk]

I think if your exhibits show the changes of address and support deficient service you should be fine.

Work on your Draft Defence now and post a copy here for critique.

As evidence to defend the claim you are going to have to show the land owner had given you permission (letter from them or email which doesn't have to be dated before the issue date of their PCN) and that your agreement meant you did not have to enter into contract with the claimant. This will form part of the evidence attached to a later witness statement.

Your defence should simply be:

1. D entered into private contract with land owner on X.
2. D had the legal right to park arising from that contract within the terms of it.
3. D could not have entered into contract with C because of the terms of his contract with the land owner.
4. Consequently there was no acceptance by D of the contract offered by C.
5. C had no right to issue a PCN nor any right to enforce it due to lack of contract.
6. D denies liability for the amount claimed or at all.

Once filed I would make them a Part 36 offer to discontinue the claim when serving them with their copy of it as they have no real prospect of succeeding in it.

If the land owner should have informed them or issued you some sort of pass to park, that's between them and the land owner.

[Harrybear]

jaguarsuk Thank you. I have already submitted my draft defense but luckily it did contain your aforementioned advice. The date for the hearing is next month. The solicitors of the parking company have submitted a Draft Order- Consent to Set Aside to the courts (with me Cc'd in) with the following conditions. 1) The CCJ is set aside. 2) The matter is referred to the small claims track. 3) No order for costs. Presumably they are offering this as they are aware they're likely to lose and don't want to pay court fees if my costs are awarded? Or am I missing something?

[jaguarsuk]

jaguarsuk Thank you. I have already submitted my draft defense but luckily it did contain your aforementioned advice. The date for the hearing is next month. The solicitors of the parking company have submitted a Draft Order- Consent to Set Aside to the courts (with me Cc'd in) with the following conditions. 1) The CCJ is set aside. 2) The matter is referred to the small claims track. 3) No order for costs. Presumably they are offering this as they are aware they're likely to lose and don't want to pay court fees if my costs are awarded? Or am I missing something?

Nope, you got it.

And if you have already submitted that draft defence upon successful set aside I wouldn't be surprised if they issue a Notice of Discontinuance.

Despite their application you still want to ask for your costs of the application at the hearing for set aside. You asked them to consent, they didn't reply promptly and CPR compels you to act promptly will be your reason when asking the judge. Had they done due diligence at the time of issuing the claim and acted promptly when requested you would not have incurred the costs.