CCJ Set Aside Cabot

[coxdavid1990]

Hi all, so been really worried over the last few days whilst trying to put together a successful set aside attempt. I have written what I deem to be appropriate. Please can one of you experts provide your feedback as I need to get it off in the next couple of days? Thanks in advance.

DRAFT ORDER

IN THE COUNTY COURT AT: **Assuming this will just be my local court?**

CIVIL ENFORCEMENT LIMITED (Claimant)

And

(Defendant)

CLAIM No:**********

IT IS ORDERED that:

1. The default judgment dated XX/XX/2018 be set aside.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the claim form on the Defendant by 4pm on **what date would I put in here?** paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on **same date as above point 3?**

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 plus the Defendant's costs for attending the hearing.

6. All enforcement be put on hold pending the outcome of the application.

WITNESS STATEMENT

7. I am XXXX and I am the defendant in this matter. This is my supporting statement to my application dated 11 February 2019 requesting to:

a. Set aside the default judgment dated XX November 2017 as it was defectively served using an old address.

b. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

c. Order for the original claim to be dismissed.

DEFAULT JUDGMENT

8. The claim relates to an alleged parking event on XXXX. The last contact with the Claimant was on 24 November 2016 (see exhibit 1 – email to claimants appeals email address) to which no response was received. On X May 2017, I changed address to XXXX and enrolled on the Electoral Register and have utility bills in my name to prove this (attached). On X November 2017, some 12 months after the Claimant last had contact with me a default judgment was issued, presumably for a court claim form issued 19 days previously, that was issued to my old address.

As it was so long without any contact, the Claimant knew or should have known that the address they had on file was not a good address for service and should have used a tracing service to find an updated address. This would have succeeded, as I was ‘there to be found’.

I therefore request an automatic set aside under CPR13.2, as the claim was not served to the correct address.

Alternatively I request the court sets aside the judgement on the grounds that the defence has a reasonable prospect of success under CPR13.3 and I should be allowed a chance to defend the claim (see filed defence).

9. I have never received any response from the Claimant to my email correspondence dated both 1 November 2016 and 24 November 2016. I was therefore never able to challenge the original charge nor the judgment.

10. I believe the claimant has behaved unreasonably by not ensuring they used my correct contact details. According to publicly available information, my circumstances are far from being unique – my details being on the Electoral Role for example. The Claimants persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system across the country.

11. I suggest the Claimant did not make reasonable enquiries as to my address at the time before pursuing the court order, especially considering they had good reason to believe they did not hold my current contact details. Furthermore, considering they received no response from me to their correspondence this should have been a clear indication of the obsolescence of the address – XXXX.

12. Considering the above I was unable to defend this claim. Therefore, I believe that the default judgment against me was irregular and I respectfully request it is set aside.

ORDER DISMISSING THE CLAIM

13. I further believe that the original Parking Charge Notice (PCN) has no merit and should thus be dismissed. 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 driver.

14. The Claimant has obtained details of the vehicle for which the defendant was the registered keeper and used those details to raise a Parking Charge Notice (PCN). I dispute this charge 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 have come into force.

15. I further submit that the parking charge notice is without merit due to substantial issues in law. This is for the following reasons:

16 a. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the particular car park in question and will have no proprietary interest in this. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landowner and only they would have been able to sue for damages or trespass. I, as a patron of the doctor’s surgery, was using this car park for the correct purpose.

16 b. 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 driver of the vehicle of which I was the registered keeper. I further submit that any loss to the landowner (which would be the only party able to claim such losses) would be minimal.

16 c. The Charge is an Unenforceable Penalty: I further submit that the Parking Charge Notice (PCN) is nothing but an unenforceable penalty as it is not based on any loss suffered due to the alleged infraction.

16 d. 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 driver. Therefore, there is no consideration from the driver to Civil Enforcement Ltd.

17. 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.


Statement of Truth:
I believe that the facts stated in this Witness Statement are true.

[R0b]

Hello
I'm going to tag ostell for the specifics on the PCN arguments but here's my general view overall.

1. I'm not so keen on the idea of reserving costs and then having CEL pay the set aside application fee in certain events. Costs really should be assessed if the application is successful and you should get those costs back. Set aside applications are not subject to the small claims rule and so the normal costs rules apply. The general rule is that a successful party should be awarded their costs unless there is some other good reason why. Those reasons to deviate from the general position is issue based. For example, if you are making a number of claims (let's say 4) and you are only successful on 1 of those claims, then a court may depart from the general rule and only give you 25% of your costs because you weren't successful on the other 3. County Court judges are a bit notorious for not awarding costs and failing to give any justification of why they have departed from the general rule and you may want to read my post #6 on this thread which refers to quote from a Court of Appeal case about departing from the general rule.

If it were me, I would just simply put in the order that the Claimant pay the costs of the application and other incidental costs e.g. preparation of application, witness statement etc. and then supply a costs schedule 3 days in advance of the hearing.

2. Where you are asking about what dates to put in paragraphs 3 and 4, you just leave that blank or state 14 days from the date of the order. Remember, it's a draft order so not guaranteed to be the final one.

3. Moving on to your witness statement, you mention that you are asking for an order to set aside the default judgment and then also to dismiss the order. That would mean your application is in fact both an application to set aside the default judgment and an application for summary judgment (2 claims and bear in mind my point about costs in para. 1 above) - is that really your intention? I ask that because a summary judgment has a very specific requirement and hurdle to reach which, given my points below, not sure you would reach that hurdle.

4. Paragraphs 8-12 on the face of it seem fine to me but you might want to make it a bit clearer by using sub-headings. You can find the example parking ticket witness statement on my list of templates under Section 8b. You'll also see an example application and draft order too for you to consider. Feel free to use whatever you want from it but you'll see it gives some introductory background and then uses sub-headings to help signpost the reader and help them understand what you are going to discuss.

5. I'm not so sure paragraphs 13-16 will fly but I could be wrong. some of those arguments about pre-estimate of loss and lack of capacity might contradict what was discussed and/or said in the Beavis v Parking Eye case (haven't read the judgment for some time so I may be wrong). If the penalty rule is engaged, then it needs to be determined as to whether there is a commercial justification for the penalty charge and I'm sure Beavis said that there was a commercial justification. you've not said what the amount is so you may wish to double check that point. Going back to the point about lack of standing, if CEL managing the car park then they would have an interest and, unless this car park clearly stated it was private land and that only those with a permit or some other requirement was needed, then that would be a trespass and you would be correct in saying there is no locus standi.

[coxdavid1990]

Thanks so much Rob, that's really helpful so in answer to your points.

I've adjusted to the following;

3. Unless the Claimant serves a copy of the claim form on the Defendant by 4pm following 14 days after the date on which the judgement is set aside.Paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm following 14 days after the date on which the judgement is set aside.

Section 7c - I have adjusted from 'Order for the original claim to be dismissed' to 'Order for the original claim to be set aside'

Following on from this, the Witness Statement and Default Judgment seem to roll into one on mine, but on the template this doens't seem to be the case?

I'm slightly confused as to whether the 'Default Judgment' and 'Order to set Aside' as it follows in my OP should be included in the witness statement?

Sorry slightly lost on this piece.

[coxdavid1990]

From what I can understand, the Default Judgment piece from my OP should form part of my witness statement? The Order to Set Aside should then be another document?

[R0b]

I've attached an example draft order for setting aside, similar to yours but worded slightly different. As you can see the draft order leaves the dates and times blank because it is just a draft order.

At paragraph 2, it is worded in such a way to say that the claimant will re-file and serve detailed particulars of claim (because some particulars of claim issued are just crap and non-compliant) and it then goes on to say where the POC should be served, which is your latest address. The purpose behind that is if you are arguing invalid service of the claim form, then it would be sensible to record the address that the claim form should be served so there is no doubt about that.

The rest of the draft order is straightforward but of course how you want to structure yours is entirely up to you. If you are going for summary judgment too, then your N244 application needs to be worded to reflect that, which is usually best to number what you are seeking. For summary judgment, it should be worded something along the lines of "an order for summary judgment under CPR 24 on the basis that the Claimant has no real prospect of success and that there is no compelling reason why the case should be disposed of at trial."

As I mentioned though, you might want to consider your position around summary judgment and whether it is worthwhile. You may be better off simply seeking a set aside of the judgment.

So to summarise, your set aside application should include the following:

1. Completed N244 application
2. A draft order
3. Witness statement (together with exhibits referred to)
4. Draft defence (if relying on a reasonable prospect of successfully defending the claim)

As an aside, have you contacted CEL to see if they will agree to consenting to the set aside application? If not, you may want to consider doing that which should give you a little extra time to refine your documents - also attached an example letter you could send them.

[coxdavid1990]

Thanks Rob, you've been really helpful so far. You mention asking CEL to set it aside, but it was issued long ago? What would the benefit of doing this be please?

On another note, I have since moved address again since all of this - assuming that won't matter? Is it best that I repost what I've adjusted things to and get your view again?

It's starting to make me quite anxious as I'm getting so confused and don't want to waste the money in attempting to get it completely wrong.

[R0b]

Theres a number of reasons why you might want to write to CEL and get them to agree to setting aside the default judgment:

(1) you dont need to spend £255, the cost is only £100. Whether you agree to subsidise that or ask them to pay it is up for negotiation.

(2) by both parties consenting to setting aside the default judgment it means you dont need to go to court and argue why it should be set aside, a decision made by a judge. It therefore alleviates the element of uncertainty and if a judge refuses to grant the set aside, it could be difficult to overturoverturn.

(3) generally, both parties get to agree the terms of the setting aside with a rubber stamp by the court. Makes life a little easier if the parties can agree than leaving it up to someone else to determine.

You do need to be in mind that a default judgment application needs to be made promptly hence the letter says 7 days to respond, that gives enough time to prepare your application and make sure you've got what you need.

It might be helpful to read this link about how set asides work and some tips towards the end of it. That should give you a clearer idea of what to expect from something like this.

If you post up what you've got in word document I can give you some feedback which should hopefully point you in the right direction.

[ostell]

CEL have a habit of just withdrawing from a claim if it actually looks like it's going to get in front of a judge and therefore the £255 would be lost unless the draft order covers this point.

Looking at the witness statement in post #1 the seems to be several misunderstanding. The contract is formed by the wording on the signs. Claiming that the signs were not read is insufficient. The claim will be that the contract included agreeing to make a payment for a breach of the terms and therefore not a penalty. The offer was given in the signs and was for parking, this was accepted by action of parking the consideration was the use of the space.

What did the signs say? Could be prohibitive and therefore no contract created.

The PPC could have a contract that allows them to take action to enforce.

Genuine Pre Estimate of loss was blown out by the Beavis case in the supreme court. Beavis also allowed for penalties but only in specific circumstances.

The PCN is an invoice and not a penalty notice.

[coxdavid1990]

CEL have a habit of just withdrawing from a claim if it actually looks like it's going to get in front of a judge and therefore the £255 would be lost unless the draft order covers this point.

Looking at the witness statement in post #1 the seems to be several misunderstanding. The contract is formed by the wording on the signs. Claiming that the signs were not read is insufficient. The claim will be that the contract included agreeing to make a payment for a breach of the terms and therefore not a penalty. The offer was given in the signs and was for parking, this was accepted by action of parking the consideration was the use of the space.

What did the signs say? Could be prohibitive and therefore no contract created.

The PPC could have a contract that allows them to take action to enforce.

Genuine Pre Estimate of loss was blown out by the Beavis case in the supreme court. Beavis also allowed for penalties but only in specific circumstances.

The PCN is an invoice and not a penalty notice.

So based on this, we called CEL to see if there was some form of 'resolution' that we could come to having discovered the CCJ.

They stated that they didn't have the ability to set it aside, hence us thinking the only way was to attempt via the court?

In all honesty, I do not know what the sign says itself, however it is just around the corner from where we live so could always check it out? To be completely clear, it was a doctors surgery, my partner was attending an appointment and did not enter her registration at the reception which you are requested to do on the signage (I believe) this was a simple mistake, however would this abolish all chance of getting it set aside?

In other words, the PCN was issued fairly but as we had moved address, we were not aware of the judgement, if this makes sense?

[coxdavid1990]

Sorry to pester you guys, any further news on this? I am thinking of just going ahead and processing the normal set aside with the court. Would it be ok to upload my adjusted attempt for you to review?

[R0b]

It's probably easier to upload than having to go through it over several posts. This is why my suggestion that you put CEL on notice of your intention so that you can use that time to get everything ready.

Do you have all the paperwork belonging to the PCN or are you missing any information? You might want to consider raising a subject access request for that information, or alternatively as part of your draft order you could incorporate wording that CEL disclose those documents

[coxdavid1990]

It's probably easier to upload than having to go through it over several posts. This is why my suggestion that you put CEL on notice of your intention so that you can use that time to get everything ready.

Do you have all the paperwork belonging to the PCN or are you missing any information? You might want to consider raising a subject access request for that information, or alternatively as part of your draft order you could incorporate wording that CEL disclose those documents

Thanks Rob, I don't have the original correspondence. All I have is 2 emails that were sent to CEL trying to resolve the issue at the time, with no responses.

Based on this, are you able to provde a breakdown of what needs to be changed in my OP? Apologies, not asking you rewrite but need to make sure I'm getting the right thing sent off.

[R0b]

Rather than fluffing around, would it not be sensible to email CEL and put them on notice of your intentions of going to set aside the CCJ. That way, if they don't turn up without informing the court or they ignore you, there is more grounds of you getting your costs back because of their unreasonable conduct.

I've actually rifled through some old letters I've done before and noticed a CEL parking ticket letter for setting aside (see attached). You might want to model your response to them based on that, as it also sets out a request for some of those documents that you probably need. I am assuming the type of documents you need haven't changed but I'm sure ostell can comment on that. Either way it's a start and gives you enough information to know what case you have to meet.

I've also attached an example Consent Order to go with the your response to CEL. I've put some comments in each of the documents to give you a nudge in the right direction but make sure to delete them when you send your final version!

If you can get that out today, CEL will have until 20th Feb. to either consent, refuse consent or ignore you. If it's either of the latter two options, you simply submit your application on 21st Feb. without further notice to them. You've then got 7 days to get your defence together but if you don't have the actual information available, then I don't see any point in submitting a draft defence because you are simply speculating. In that instance, you should simply ask the Court to make an order that they provide detailed particulars of claim - we can look at that when we cross that bridge.

So at the moment, as you don't have any paperwork, your only focus should really be on the witness statement to support your application and gathering your evidence together to go with it.

[coxdavid1990]

Rather than fluffing around, would it not be sensible to email CEL and put them on notice of your intentions of going to set aside the CCJ. That way, if they don't turn up without informing the court or they ignore you, there is more grounds of you getting your costs back because of their unreasonable conduct.

I've actually rifled through some old letters I've done before and noticed a CEL parking ticket letter for setting aside (see attached). You might want to model your response to them based on that, as it also sets out a request for some of those documents that you probably need. I am assuming the type of documents you need haven't changed but I'm sure ostell can comment on that. Either way it's a start and gives you enough information to know what case you have to meet.

I've also attached an example Consent Order to go with the your response to CEL. I've put some comments in each of the documents to give you a nudge in the right direction but make sure to delete them when you send your final version!

If you can get that out today, CEL will have until 20th Feb. to either consent, refuse consent or ignore you. If it's either of the latter two options, you simply submit your application on 21st Feb. without further notice to them. You've then got 7 days to get your defence together but if you don't have the actual information available, then I don't see any point in submitting a draft defence because you are simply speculating. In that instance, you should simply ask the Court to make an order that they provide detailed particulars of claim - we can look at that when we cross that bridge.

So at the moment, as you don't have any paperwork, your only focus should really be on the witness statement to support your application and gathering your evidence together to go with it.

Thanks Rob, again very helpful.

Excuse me if I'm wrong, but is the Consent Order essentially the request that CEL set it aside? If so, as stated in my previous response - CEL advised over the telephone that this is not something that they would do?

[R0b]

Excuse me if I'm wrong, but is the Consent Order essentially the request that CEL set it aside? If so, as stated in my previous response - CEL advised over the telephone that this is not something that they would do?

Yes it is. It doesn't matter whether someone told you over the phone that it's not something they would do, when one is faced with the potential to pay costs, modest or not, that can change the game a little and people will decide whether or not they still want to come to the table. Secondly, as I mentioned, its a boost for you to argue unreasonable conduct if they refuse consent but fail to give any sufficient reasons or, if they ignore you altogether. Even if they decide to defend it (last time I checked they don't always turn up) and lose, then they will have faced costs of attending and also costs of the application plus your preparation costs.

These parking companies try to do the bare minimum and whilst CEL might be prepared to take that risk, for you, its a case of documented evidence. If you don't want to send the letter and just go straight for submitting the application is your choice. If it came to costs and a judge asks whether you have tried to communicate with CEL to mutually agree in setting aside the CCJ, and you say nothing, a judge might not award you your costs on that basis because the judge might have considered that it was reasonable for you to make an attempt to avoid using court resources with less time and cost.

Not saying that a judge will definitely say that but I've experienced that before first hand. County Court judges are a lottery, some good, some bad, and some down right awful. Ideally, you don't want to give a judge any leeway if possible.