Parking Control Mgt Court Claim

[R0b]

Yes please share a redacted version and I will try to feedback before tomorrow. The application form is straightforward, I will share an example when I get 5 minutes

[ochmode]

Yes please share a redacted version and I will try to feedback before tomorrow. The application form is straightforward, I will share an example when I get 5 minutes

I have attached both. The Defence cobbled with some samples I saw elsewhere.

[R0b]

Defence is probably ok, I wouldn't personally draft it in that way but it should do. Witness statement is probably sufficient but you may want to weave in something about contacting their solicitors and refusing unless you agreed to pay the judgment amount first so you had no choice but to issue an application. Something like below might do.

I contacted the Claimant's legal representatives in an attempt to seek consent to set aside the default judgment. It was explained to me that the Claimant would not consider any consent to set aside the default judgment unless I first paid the default judgment amount. I was surprised by this position because by doing so, it would in effect amount to an admission of liability (which I do not accept) but also such an action would contravene the CPR around applications to set aside default judgments - namely that the default sum should not be paid if the judgment is to be contested. I believe the position taken by the Claimant is wholly unreasonable and unnecessarily forcing me into an application incurring a cost of £275 that would have otherwise cost myself £108 without justification (including time spent preparing a witness statement and draft defence. If my application is successful, I would ask the court to award my costs of this application in full.

You should also mention in your witness statement a reference to your draft defence attached to your application.

[ochmode]

Defence is probably ok, I wouldn't personally draft it in that way but it should do. Witness statement is probably sufficient but you may want to weave in something about contacting their solicitors and refusing unless you agreed to pay the judgment amount first so you had no choice but to issue an application. Something like below might do.

I contacted the Claimant's legal representatives in an attempt to seek consent to set aside the default judgment. It was explained to me that the Claimant would not consider any consent to set aside the default judgment unless I first paid the default judgment amount. I was surprised by this position because by doing so, it would in effect amount to an admission of liability (which I do not accept) but also such an action would contravene the CPR around applications to set aside default judgments - namely that the default sum should not be paid if the judgment is to be contested. I believe the position taken by the Claimant is wholly unreasonable and unnecessarily forcing me into an application incurring a cost of £275 that would have otherwise cost myself £108 without justification (including time spent preparing a witness statement and draft defence. If my application is successful, I would ask the court to award my costs of this application in full.

You should also mention in your witness statement a reference to your draft defence attached to your application.

Thanks for this, I have incorporated but I have a couple questions.
1. Do I reference the claimant or their solicitors in the WS? I have changed it to the legal reps where indicated.
2. In sending this to the court, I presume I have to scan and email all of what I have including copies? as well as attaching my draft defence?
3. Or do I have to send via snail mail - with a bank draft of the fee?
Thanks a lot I am going to finalise tomorrow and send off Tuesday.

[R0b]

1. Your WS is factual so it depends on what you are saying. If you contacted the Claimant's legal reps only then you say that or if you tried to contact them both then you say that instead. When you are talking about the application or the claim generally such as costs or failure to comply, then you should refer to the Claimant because they are the party to the claim not their legal reps - the legal rep actions are the actions of the Claimant's.

2. You can do that, but when sending by email make 3 copies and attach them naming them accordingly e.g. N244 Application (Claimant Copy), N244 Application (Defendant Copy), N244 Application (Court Copy). I would set the subject line of your email something like: Urgent N244 application to set aside default judgment - Claimant Name v Defendant Name (Claim No. XXXX). You can then keep a short email saying please find attached 3 copies of the N244 application and I will contact the court in a two days time to confirm receipt and pay the application fee over the phone.

3. You can do that applying the same process in point 2 above but it may take longer to process.

As for the N244 application, I've attached an example of how to complete it for your purposes. You will need to complete the information in square brackets (but make sure to remove the square brackets). Also change the title of your defence document from "Defence" to "Draft Defence".

You should also attach a draft order, which I have tweaked based on the Consent Order I attached above. It says you must file the defence within 14 days of the date of the order hence changing the reference to draft defence. Also means you can make some further tweaks in the interim in case you missed something out rather than the court accepting the defence as is attached to your application.

I would present your 3 copies N244 applications as a PDF and merged as a single document in the following order:

A. N244 Application
B. Witness Statement
C. Draft Defence
D. Draft Order

[ochmode]

1. Your WS is factual so it depends on what you are saying. If you contacted the Claimant's legal reps only then you say that or if you tried to contact them both then you say that instead. When you are talking about the application or the claim generally such as costs or failure to comply, then you should refer to the Claimant because they are the party to the claim not their legal reps - the legal rep actions are the actions of the Claimant's.
2. You can do that, but when sending by email make 3 copies and attach them naming them accordingly e.g. N244 Application (Claimant Copy), N244 Application (Defendant Copy), N244 Application (Court Copy). I would set the subject line of your email something like: Urgent N244 application to set aside default judgment - Claimant Name v Defendant Name (Claim No. XXXX). You can then keep a short email saying please find attached 3 copies of the N244 application and I will contact the court in a two days time to confirm receipt and pay the application fee over the phone.
3. You can do that applying the same process in point 2 above but it may take longer to process.
As for the N244 application, I've attached an example of how to complete it for your purposes. You will need to complete the information in square brackets (but make sure to remove the square brackets). Also change the title of your defence document from "Defence" to "Draft Defence".
You should also attach a draft order, which I have tweaked based on the Consent Order I attached above. It says you must file the defence within 14 days of the date of the order hence changing the reference to draft defence. Also means you can make some further tweaks in the interim in case you missed something out rather than the court accepting the defence as is attached to your application.
I would present your 3 copies N244 applications as a PDF and merged as a single document in the following order:
A. N244 Application
B. Witness Statement
C. Draft Defence
D. Draft Order

Thanks for this, some more questions:
1. Do I sign the draft order or that's for the court to sign?
2. Do I also change the heading to draft defence (in the body as well?) also your former comment of

I wouldn't personally draft it in that way

What would you have done? Rereading it, some parts in my layman's eye seem out of scope.
Lastly, I am not sure if an electronic signature would suffice (typing my name down where there are lines) so I will have to go print, sign and scan into one at a biz centre in the morning, as I can't seem to find a way of combining them on my computer.
Thanks a lot.

[ochmode]

Hello,
I got a notice (letter) to say the case has been transferred to my local court to deal with the application to set judgement aside. Do I need to do anything now and also, I have not yet sent in the "final" Defence - still have till Thursday this week before the 14days expires.
Just needing some guidance on both points .
Thanks.

[R0b]

Hi,

Any draft defence ought to have been attached to your witness statement when you submitted the application, so I don't quite understand about the reference to the final defence before the 14 day period expiring. Can you explain that?

In response to your other questions:

1. Draft order not to be signed.
2. See above comment re defence it would normally be stated as a draft defence.

[ochmode]

I did send in the draft defence with the witness statement. Question is having sent that, do I need to send in one that says this is my final defence? Taken into consideration that I mentioned in my application that I will send a final defence within 14days. Or technically the 14 days don’t start counting until the case has been heard in the local court.
Also in prep for the local court date, do I need to do anything in preparation for that?
thanks

[R0b]

If you drafted it right, the order says you will send the defence t 14 days from the date of the court's order. It is a draft order and not stamped by the court's seal so no obligation to send your complete defence ahead of the set aside hearing.

The judge will either use your draft defence as the final defence if he or she agrees to set aside and if you're happy with the draft defence all is good. If you missed something off that you wish to include then now would be the time to tell the judge that you have since become aware of information you wish to state in your defence that wasn't covered in the draft, but the defence itself will remain substantially the same.

Otherwise the judge may approve the draft order in which case you file your final defence with the court and serve on the other side within 14 days of the date of the order. IF the judge hasn't indicated what the order will be or you are unsure then pipe up and ask the judge direct what is the order for filing the defence, together with any costs of the successful application.

Generally set aside applications are straightforward and usually over with within 15 minutes. Judges will most likely have read your witness statement in advance so you will have less to argue/discuss unless the judge has specific questions to put to you or the other side.

If you are successful, you should ask for costs of the application and attendance of the hearing, up to £95 based normally on having to take time off for attending - the reference for this is CPR 27.14(e) and make sure to reference that if you have to. The judge might ask you why you should be entitled to costs. You may want to use one or the following arguments depending on if they apply:

- The Claimant's conduct was unreasonable in that they insisted you had to pay for the outstanding judgment before they would consider your request for consent order. As mentioned in your WS this is contrary to the set aside rules in that you should not pay the judgment amount as it is deemed as an admission of liability and cannot set aside something which has already been settled.

a. The Claimant has failed to comply with the overriding objective under CPR 1.3, particularly:

b. assisting the court in dealing with the matter proportionately and justly. The failure to file a defence was a genuine error and you have a good prospect of defending the case successfully. Refusing to consider the consent order was wholly unreasonable.

- Saving expense and use of court resources. You believe this is something that could have easily been resolved by way of consent order without the need for the court to allocate time to consider the application. It has added expense but also diverted what is already limited court resources to an set aside hearing.

- Has the Claimant turned up to the hearing? (Only say it if applicable). Added point to note is that the claimant has not bothered to turn up to the hearing or even notified you or the court of its non-attendance adding to the further issues of unreasonableness and breach of the overriding objective. Note: Don't talk about the last point if you received notice of non-attendance.

- (if applicable and check with the court if something has been filed) The claimant has not filed an objection or witness statement opposing the application and therefore silent throughout. The fact that they have failed to attend or supply an opposing statement could be inferred as the claimant not objecting to the application. They could have said this at a much earlier stage before the hearing and thus saving expense and avoiding resources being allocated.

- Overall and to sum up, the hearing was unnecessary because you were prepared to pay for the consent order at your own expense having acknowledged the error. The fact that the claimant has not bothered to take any steps to further the overriding objective and took an unreasonable stance in relation to the consent order, resulted in you incurring additional expense, diverting court resources and having to take a day's annual leave to attend the hearing.


If you are feeling cheeky, ask for costs of time spent on the application at £19 per hour which is the current rate for litigants in person. Work out how long you have spent on the application, and be reasonable don't throw something like 120 hours because you will look stupid. Something reasonable might be somewhere between 5-10 hours worth of work including corresponding and chasing the claimant.

One objection you might get from the court is that costs don't apply to the small claims track. You can answer that quite easily by saying first of all the case was never allocated to the small claims track because a default judgment was granted. Second, set aside applications are an interim application made under Part 23 and there's nothing in the small claims rules that the small claims rules applies to Part 23 applications. Third, it is in any event reasonable to award costs for the reasons already given as regards the claimant's conduct.

[ochmode]

If you drafted it right, the order says you will send the defence t 14 days from the date of the court's order. It is a draft order and not stamped by the court's seal so no obligation to send your complete defence ahead of the set aside hearing.

The judge will either use your draft defence as the final defence if he or she agrees to set aside and if you're happy with the draft defence all is good. If you missed something off that you wish to include then now would be the time to tell the judge that you have since become aware of information you wish to state in your defence that wasn't covered in the draft, but the defence itself will remain substantially the same.

Otherwise the judge may approve the draft order in which case you file your final defence with the court and serve on the other side within 14 days of the date of the order. IF the judge hasn't indicated what the order will be or you are unsure then pipe up and ask the judge direct what is the order for filing the defence, together with any costs of the successful application.

Generally set aside applications are straightforward and usually over with within 15 minutes. Judges will most likely have read your witness statement in advance so you will have less to argue/discuss unless the judge has specific questions to put to you or the other side.

If you are successful, you should ask for costs of the application and attendance of the hearing, up to £95 based normally on having to take time off for attending - the reference for this is CPR 27.14(e) and make sure to reference that if you have to. The judge might ask you why you should be entitled to costs. You may want to use one or the following arguments depending on if they apply:

- The Claimant's conduct was unreasonable in that they insisted you had to pay for the outstanding judgment before they would consider your request for consent order. As mentioned in your WS this is contrary to the set aside rules in that you should not pay the judgment amount as it is deemed as an admission of liability and cannot set aside something which has already been settled.

a. The Claimant has failed to comply with the overriding objective under CPR 1.3, particularly:

b. assisting the court in dealing with the matter proportionately and justly. The failure to file a defence was a genuine error and you have a good prospect of defending the case successfully. Refusing to consider the consent order was wholly unreasonable.

- Saving expense and use of court resources. You believe this is something that could have easily been resolved by way of consent order without the need for the court to allocate time to consider the application. It has added expense but also diverted what is already limited court resources to an set aside hearing.

- Has the Claimant turned up to the hearing? (Only say it if applicable). Added point to note is that the claimant has not bothered to turn up to the hearing or even notified you or the court of its non-attendance adding to the further issues of unreasonableness and breach of the overriding objective. Note: Don't talk about the last point if you received notice of non-attendance.

- (if applicable and check with the court if something has been filed) The claimant has not filed an objection or witness statement opposing the application and therefore silent throughout. The fact that they have failed to attend or supply an opposing statement could be inferred as the claimant not objecting to the application. They could have said this at a much earlier stage before the hearing and thus saving expense and avoiding resources being allocated.

- Overall and to sum up, the hearing was unnecessary because you were prepared to pay for the consent order at your own expense having acknowledged the error. The fact that the claimant has not bothered to take any steps to further the overriding objective and took an unreasonable stance in relation to the consent order, resulted in you incurring additional expense, diverting court resources and having to take a day's annual leave to attend the hearing.


If you are feeling cheeky, ask for costs of time spent on the application at £19 per hour which is the current rate for litigants in person. Work out how long you have spent on the application, and be reasonable don't throw something like 120 hours because you will look stupid. Something reasonable might be somewhere between 5-10 hours worth of work including corresponding and chasing the claimant.

One objection you might get from the court is that costs don't apply to the small claims track. You can answer that quite easily by saying first of all the case was never allocated to the small claims track because a default judgment was granted. Second, set aside applications are an interim application made under Part 23 and there's nothing in the small claims rules that the small claims rules applies to Part 23 applications. Third, it is in any event reasonable to award costs for the reasons already given as regards the claimant's conduct.

So I finally got a letter through the post that a court date has been agreed for Monday next week (telephone hearing). The post was sent in October but only just received it. Also Gladstones sent two posts, 1 with a letter stating I still owe the amount which included copies of the alleged PCNs and the 2nd post was quite bulky with the following:

a. Claimants witness statement - quite lengthy but summarised as:

i. They would not be attending and they have asked the court to consider the provided statement.
ii. Some documents showing they "have" right to "manage" the land
iii. That they sent me copies of the notices from address gotten from DVLA.
iv. Denying a SAR was not received but CPR 31.14 was received and responded to. (I did not get anything from them)
v. proposal for judgement to be set aside was not agreed as there was no mandatory grounds.
vi. not entitled to costs as I didn't respond on time.
vii. that claimants evidence is compelling so there is no prospect of me defending my claim. (quite arrogant I must say)
viii. again not going to instruct an advocate as it costs them more to do so.
ix. without prejudice If the court grants application, then should give directions regarding claim.
x. court should order:

a) claim be set aside
b) witness statement to stand as particulars of claim, and service of claim be dispensed with.
c) defendant to file within 28days.
d) claim be allocated to small claims track to be heard on first date with 56 days and there be no order as to costs.

b. document that may be contracts allowing them to manage the land.
c. letter from PCM to the "residents"
d. pictures of my car and the permit showing the VRM that came with the car (whilst the private plates were fitted)
e. signs around the premises showing the "terms and conditions of parking."

Grateful for advice as always.

If needed I can post up a redacted copy.

[ochmode]

ostell and R0b any help please?

[R0b]

Not sure I can add much really, you have your witness statement and defence and that's what you should use. If you haven't already, you should probably mentioned in the hearing also you have become aware your tenancy agreement does not contain any requirements to comply with these parking terms and conditions other than the right to park in a designated space. Therefore there is no requirement for you to comply with any permit anyway or any liability if you fail to comply - suggest you take a copy of your tenancy agreement with you to offer and show to the judge.

As to costs, I don't know why they are saying they refused consent because there's no mandatory grounds. Set aside applications can be made on mandatory and discretionary grounds and since you genuinely failed to file a defence, there's no reason why they couldn't agree a consent order to set aside: (a) at a less expensive option and (b) without having to force you to make the application not only at an extra cost but also wasting the court's time and resources. On that basis, their conduct has been unreasonable and if the CCJ is set aside, they should pay your costs.

Down to you on the day to read through their witness statement and evidence and argue to the judge you have a good chance of defending it. If the judge agrees, you may want to ask the judge to let you file a new defence so that include reference to your tenancy agreement which should defeat their claim.

Don't know what the documents are relating to them being able to manage the land. Questions you want to be thinking are, is there a time limit given to manage land and is there an expiration date? Who authorised them to manage land, was it the landowner or someone else. If someone else, who authorised them? Do they have evidence of that?

[ochmode]

R0b thanks for this.

So on the day (tomorrow), do I get to "state" my case by countering the points in their witness statement? if so I'd like to also reference the fact that they didn't respond to the SAR and CPR request and lied about it. Would I be able to can weave that into the argument?

Noted your points in regards to cost and will go with that.

For

Don't know what the documents are relating to them being able to manage the land. Questions you want to be thinking are, is there a time limit given to manage land and is there an expiration date? Who authorised them to manage land, was it the landowner or someone else. If someone else, who authorised them? Do they have evidence of that?

They supplied some documents looking like they were given the ability to manage the land allegedly signed by the erstwhile accommodation manager. As I stated earlier I pay a monthly fee which goes towards parking, surely I could use that as well?

What could be the possible outcomes? seeing they have asked for the case to be reopened when the judges overturns the first judgement. Do I then use my already submitted defence or have to redo/rewrite another and resubmit?

Thanks for all your help once again.

[R0b]

It depends, as the judge may have already read everything and wants to ask you questions about what they have said. Set aside applications are not meant to be a mini trial but if they're opposing your set aside then you need to convince the judge there is some good reason why he/she should allow the case to continue based on the evidence they've put forward.

If you are asked to start, then you are going to explain that you want to set aside under CPR 13.3 i.e. there is some other good reason why and/or you have a good chance of defending the claim and go through your reasons as set out in your witness statement i.e. it was a genuine error and you made a mistake. Equally, you have put forward a defence, you also have a copy of your tenancy which does not say you are required to comply with parking conditions etc. also worth pointing out you sought consent from the other side but they refused without giving any reasons and you were prompt in making the application.

If I was a judge and they provided sufficient evidence to show the signs were all correct, they appeared to have authority to manage the car park I would be asking you, why should I set this aside if you are unlikely to win at the hearing? Your tenancy is the start and end of your contract and should be your primary argument in my view, simply because irrespective of the parking signs and permits required, your tenancy agreement does not say that you have to comply with any permits or other requirements. you pay for parking and there are no associated conditions attached and so the parking co however much they have the right to manage the land, have no right to enforce the permit scheme/charges against you. The onus is on them to prove that you agreed/signed up to the parking terms (your argument would be even stronger if they came after you had already started your tenancy).

Worst case scenario, the judge denies your application and the CCJ stands. You have the option to appeal or do not and you're stuck with it for 6 years. If you lose and you want to appeal, you should ask the judge for permission to appeal at the hearing and explain why. Unfortunately I can't tell you how to do that because it depends on the judge's reasoning as to why the application to set aside was refused.

If the reason was evidence based and the judge failed to take into account your evidence then that's the basis of your appeal. Most judges tend to refuse permission to appeal but you can still make a formal application you just have 21 days from the date of the hearing to do that. Cost for doing that is £120.

Read through your file, read through their witness statement and documents and pick out out any flaws or things you can use to contradict their arguments, and try to do it in a way that flows logically not back and forth. Finally, if the judge is a district judge, address them as Sir/Madam.

Good luck and let us know how it goes.