Advice needed with regards to apply to get a CCJ set aside

[catdog1]

Hi, I’ve just recently found out that I’ve got a CCJ after a credit check was completed.
Unbeknown to be I was issued with a parking fine just before I moved out of my last property in March 2017. All correspondences in relation to the fine was sent to my old address (however, when I went to my old address to collect the letters where were only 3. Two from the solicitor and one from a debt company) There was nothing regarding the CCJ though.

I had changed my address with DVLA however, there was a slight delay with this.
I have attempted to contact the solicitors however, they are not returning my call.

I would like to apply for a set aside application on the grounds that;
1.I was not given the opportunity to pay for the ticket as I received no documentation from the parking company/solicitors or when living at the address and thereafter.
2. I would like the opportunity to defend the claim. As I had a parking permit, I’m not sure why the fine was issued.
From looking at previous posts on here, which have been a massive help i've drafted a witness statement- if anyone can look over this for me and offer advise that would be much appreciated. Any other help or advice would be great

[R0b]

Re: Advice needed with regards to apply to get a CCJ set aside

Hi Catdog,

In order to get the judgment set aside you need to be acting promptly and making an application, but it would also be helpful to know who the parking company is and who were the solicitors involved.

Whilst a set aside application does not require a draft defence to be included, it is usually best practice because it will help the judge overseeing your application understand whether or not you have a reasonable prospect of successfully defending the claim.

Please can you upload or post your witness statement that you intend on using as part of the application. Also, you say that this was an area which required a permit, is this a residential space? If so, what does your lease or tenancy contract say about parking? Or are you the freeholder? Was your permit on display at all times?

Your starting point I think would be to write (email if you can as fastest way) to the parking company and request that they consent to the set aside application that you intend on making including the costs of the application too, which would be £100. This would be on that:

- You no longer lived at that property and you had updated your DVLA details (and electoral roll?). That it was possible that no response from you at all could be reasonable to think that that you were no residing there. They ought to have taken reasonable steps to ascertain your current address, which, if they had done so, they would have known you were no longer resident at the said address. Accordingly, they therefore failed to comply with CPR 6.9

- That the parking charge should not have been issued in the first place as you have a parking permit [which was on display]. In any event, they had no legal standing to bring a claim against you since the signs are considered to be prohibitive where such a breach would amount to trespass for which only the landowner or person having exclusive possession can pursue a claim. The signs do not create any kind of contractual relations and the courts have regularly stated this on numerous occasions.

The last few sentences above are optional as you've not given any evidence of the signs or what they say so it is just speculation based on what I've seen and read on here previously. You should give the parking company a short deadline, I would say that 4pm Wednesday 6 September if sent by email and you get it off today, marked as urgent. If being sent by letter then you may want to give slightly longer i.e. end of the week. If they fail to consent then you will press ahead with the application and pursue costs of the application being £255, plus any further costs the as the court sees fits.

In the meantime you will need to be cracking on with the preparation of your application - you shouldn't wait until the deadline to then begin work as you need to be making the application promptly. Therefore if they fail to respond or refuse to consent, you need to be in a position to make the application the following day.

I've tagged [MENTION=5354]mystery1[/MENTION] [MENTION=5553]charitynjw[/MENTION] for any other comments as they know more of parking than me.

[catdog1]

Re: Advice needed with regards to apply to get a CCJ set aside

Hi Rob,

Thanks for getting back to me.

The parking company is called- Parking and Property Management. The solicitors are- Gladstones solicitors. Do you know much about them?

I am going to draft an email now, just to clarify, is it to the parking company and not the solicitors? What do you think their motivations will be for consenting to a set aside?

I have also drafted my witness statement- if you could have a look and share your thoughts that would be much appreciated.

Many thanks,

[charitynjw]

Re: Advice needed with regards to apply to get a CCJ set aside

As @R0b suggests, firstly try to obtain consent to set aside.
It is a hot potato atm, firms obtaining default CCJs by sending details to old addresses.
Even if DVLA records are not up to date they should use due diligence to make sure court claims are sent to the correct (up-to-date) address (eg electoral roll, etc).

PPM are members of IPC (International Parking Community).
IPC members often (if not always) use Gladstones.
I wonder why?
https://parking-prankster.blogspot.c...96377688365013

Do you still have your tenancy agreement?
Looks like you may be able to use 'quiet enjoyment of the demised premises', a clause in the tenancy agreement which will 'trump' their parking management agreement with the landowner.

[R0b]

Re: Advice needed with regards to apply to get a CCJ set aside

Yes the letter should be sent to the parking company as they were the Claimant. If you want to post up a draft before you send then we can comment on it but you need to have all relevant facts available to you.

Without seeing your tenancy agreement its difficult to say whether your Witness Statement is robust and as I said you ought to prepare a draft defence which should be included in your application.

[catdog1]

Re: Advice needed with regards to apply to get a CCJ set aside

Hi both,

Thanks again for your feedback.

I have attached the draft email to the parking company. Do you think this is sufficient?

I have also attached the tenancy however, I cannot see where it states anything re the car parking space. I have a photo of my parking permit and I was going to ask my landlord to verify that the permit was mine during the duration of my tenancy. Do you feel that this is the right approach?

Many Thanks

[R0b]

Re: Advice needed with regards to apply to get a CCJ set aside

Your tenancy agreement doesn't specifically mention parking however it does say under clause 3 (Property):

The Property is the Property specified above, together with any outside space orgarden ...

The above highlighted could imply that any outside space also includes a car parking space as agreed, particularly if the letting was advertised as having a parking space. There is nothing in the tenancy that says you must comply with any parking conditions, so your argument is therefore that it is an unrestricted right to park free from conditions.

As for your draft email, I think it could be beefed up somewhat. I don't have time to suggest all the changes but I would consider the following:

1. in the subject line you should put something like "Urgent - Consent to set aside CCJ for PCN"

2. Set the scene as to why you are writing in a few lines e.g. "Following a review of my credit file, it has come to my attention that [parking co.] has obtained a County Court Judgment in or around [month] recorded against me for an alleged parking charge under the vehicle registration [number]. I have little information of this but it would appear that the charge relates to my residency at [address]."

3. Set out why you are looking to set aside the application e.g. "It would appear that [parking co.] issued a claim against my address despite having moved out of those premises since [date] and having updated my DVLA records as well as my electoral roll information. If [parking co.] had carried out reasonable cheks to ascertain my current whereabouts, it would have known that I no longer live there. Accordingly, I consider that service of the claim form was defective and is reasonable grounds to set aside the CCJ."

4. You could also mention if you wanted to that you consider that they have breach the Data Protection Act 1998 by retaining out of date information and failing to ensure that it is up to date.

5. Also, if you can upload a photo of the signs if you are able, you could also mention that the signs at the said premises are prohibitive in nature and not contractual. Therefore any breach would amount to a trespass for which only the landowner or person who has exclusive possession of the land is entitled to sue, and in which case the parking co. are neither so they have no legal standing.

6. You may wish to invite them to consent to the set aside and also agree to withdraw the claim plus pay for the cost of the application in return for you not bringing a claim for breach of data protection. This must be done by X time on X date and if you do not hear from them by then, assume that they refuse to consent and will sumbit an application without further notice. In that case you will also seek recovery of your costs incidental to the application, namely the £255.
[MENTION=5553]charitynjw[/MENTION]

[catdog1]

Re: Advice needed with regards to apply to get a CCJ set aside

That's really helpful many thanks. I will re draft the email for tomorrow.

Ive attached a copy of the sign I got today, after viewing this does it change anything re your point number 5?

I really appreciate all the support,

Many Thanks

[R0b]

Re: Advice needed with regards to apply to get a CCJ set aside

I don't think it changes what I said, I would note the following:

1. the sign clearly says "PRIVATE LAND" in bold so you know that it is not a public place.

2. It says that a permit is to be displayed at all times meaning that only those authorised can park.

3. Taking 1 and 2 together, the would read as one which is prohibited which only those authorised to park can do so. Anyone else would amount to trespassing. The contractual charges are arguably dressed up as charges for trespassing on the land. Obviously someone can read it differently, but given that it is placed at a residential site, its purpose is to deter non-authorised persons from trespassing.

That is of course one view, but there will always be another.

[charitynjw]

Re: Advice needed with regards to apply to get a CCJ set aside

There is ample case law, both precedent & persuasive, to prove that the rights given in a tenancy agreement will prevail over the parking regime.
http://nebula.wsimg.com/2b78bca39246...&alloworigin=1
http://nebula.wsimg.com/f6d657adf7df...&alloworigin=1
[MENTION=71570]R0b[/MENTION]
Can one request not only consent to set aside, but that they discontinue the claim as it is clearly without merit?

[R0b]

Re: Advice needed with regards to apply to get a CCJ set aside

Can one request not only consent to set aside, but that they discontinue the claim as it is clearly without merit?

Of course, I mentioned that in point 6 of my post above. Catdog can suggest they withdraw the claim as well as set the CCJ aside, it would need to be reflected in the order.

Also came across a case UKPC v Masterson which has a similar sign to the one you've posted - can't remember where I found it but is similar to your case.

[R0b]

Re: Advice needed with regards to apply to get a CCJ set aside

This case may also assist you more as opposed to the above

https://www.dropbox.com/s/9kxpnege93...r%20X.pdf?dl=0

[catdog1]

Re: Advice needed with regards to apply to get a CCJ set aside

Hi both, thanks for your help. First of all I sent this email to the parking company and they replied referring me to the Gladstone Solicitors. I then sent the email to Gladstone's and had no response. On calling them, they said that they can no longer deal with any request as they have passed my case onto a third party (debt collector).

To whom it may concern,
REF: Urgent - Consent to set aside CCJ for PCN. Claim number:XXX
Following a review of my credit file, it has come to my attention that Parking and Property Management Ltd has obtained a County Court Judgment on 24/05/2017, recorded against me for an alleged parking charge under the vehicle registration XXXX. I have little information of this but it would appear that the charge relates to my residency at XXXX
It would appear that Parking and Property Management Ltd, issued a claim against my address despite having moved out of those premises since March 2017 thereafter, updating my DVLA records. If Parking and Property Management Ltd had carried out reasonable checks to ascertain my current whereabouts, it would have known that I no longer live there. Accordingly, I consider that service of the claim form was defective and is reasonable grounds to set aside the CCJ.
I feel that Parking and Property Management Ltd have breached the Data Protection Act 1998 by retaining out of date information and failing to ensure that it is up to date.
As per your parking sign at XXX, the premises are prohibitive in nature and not contractual. Therefore any breach would amount to a trespass for which only the landowner or person who has exclusive possession of the land is entitled to sue, and in which case I feel that Parking and Property Management Ltd are neither, so you have no legal standing.
I therefore, invite you to consent to the set aside and also agree to withdraw the claim plus pay for the cost of the application in return for me not bringing a claim for breach of data protection. I set a deadline of Tuesday 12^th September at 11am for your response. If I do not hear from you, I assume that you refuse to consent to the set aside and I will submit an application without further notice. In this case, I will also be seeking recovery of my costs incidental to the application, namely the £255.
Yours Sincerely,

I will now proceed with my application to the courts. Do I need both a witness statement and a draft defence? What are your thoughts on my draft witness statement so far?

I really appreciate your help with this. This process can become quite confusing.

[R0b]

Re: Advice needed with regards to apply to get a CCJ set aside

I would send Parking and Property Management a further email, also copying in Gladstones something along the lines of the following:

Dear Sir or Madam,

I am disappointed that I have received no real answer from Parking and Property Management Ltd ("PPM") as regards to the consent of the application. As per your suggestion, I have contacted Gladstones Solicitors (copied in) and they are refusing to deal with it on the basis that they have instructed a third party debt collector. I am rather surprised by Gladstones since it was PPM who had referred me to them however, it is PPM who have obtained judgment and so the decision rests with you as to whether you consent or not. Notwithstanding this, the deadline to respond has now passed and an application to set aside the CCJ will be made without any further notice. Furthermore, I will be seeking costs of the application, that is £255 and I will also ask the Court to consider making a costs order against PPM and/or Gladstones for unreasonable conduct in failing to provide a response to my request to the consent of setting aside the CCJ.


Yes you will need a witness statement and a defence. I haven't fully read your witness statement as yet but I will take a read this evening and provide comments but you might want to read the firs tpage of this thread, there was an example witness statement used for a successful set aside albeit you will need to adapt it to suit your needs but the principles about defective service and reasonable checks will still apply.

http://legalbeagles.info/forums/show...et-aside-a-CCJ

I also suggest you take a look at the draft order, it is good practice to provide one so the judge knows what you are seeking.

As for the defence, it will be set out in a similar way as the witness statement but if you do a search on the forum you should come across some examples which might assit on how to set it out.

[catdog1]

Re: Advice needed with regards to apply to get a CCJ set aside

Thanks for the email template and the case law. I sent the email to the Parking Management Company last Thursday but had no reply.

I've attached my witness statement and defence statement. Are you able to have a look at them and offer any advise/comments before I sent it to the courts? I will be ever so grateful.