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Want to set aside CCJ from BW legal/Excel - please help!

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  • Want to set aside CCJ from BW legal/Excel - please help!

    Dear all,

    Last week I discovered there was a CCJ against my name from BW legal/Excel which has shredded my credit rating. It relates to a parking charge in March 2012 of which I have no memory and was sent in March 2017 to an address I left in July 2012 (I've moved twice since). The initial shock has receded now, and I've realised I need to get this set aside in court. I think I have strong grounds on two counts - I had no knowledge of the claim and it was not reasonable for them to assume the old address was mine; and I have a strong case for defending the claim if it goes to court. I have been drafting up a Witness Statement to attach to my N244 application - would be really grateful if anyone with relevant legal/court experience could look it over and offer feedback. While I intend to fight the case once it is set aside, it is the set aside that is most crucial to me as that cleans up my credit record. So I really want to get this as good as possible before sending it off (and I want to send it off quickly, as I'm aware that's one factor the courts take into account).

    Here's the redacted statement draft:

    I am XXXX and I am the Defendant in this matter.
    This is my Witness Statement in support of my application dated XXXX to:
    • Set aside the Default Judgement dated XXXX as it was not properly served at my current address;
    • Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
    • Order for the original claim to be dismissed.

    1. Default Judgement
    1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant in XXXX. However, this claim form has not been served at my current address and I thus was not aware of the Default Judgement XXXXXX. when I was doing a routine check on my credit file. I understand that this Claim was served at an OLD ADDRESS (XXXXXXX). However, I moved to a new address in July 2012, and then again in July 2013. In support of this I have provided confirmation from XXXXXXX County Council showing my updated details for the purposes of paying Council tax.
    1.2. I have also never received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.
    1.3 The Claimant's claim relates to an incident in March 2012. I have moved twice since the incident. The Claim was served to an address which is over four years out of date.
    1.4. On the XXXX I contacted Northampton County Court to find out details of the Default Judgement. The court papers contain no details of the alleged incident and I do not know what the Default Judgement relates to.
    1.5. On XXXX I contacted the Claimant using information given to me by Northampton County Court. I was advised that it relates to a parking charge notice made against a vehicle for which I was the registered keeper, issued in March 2012. I have requested full paperwork relating to this incident but at present I have not received this. I have no written details of the alleged offense, or the evidence used to support the allegation, other than the summary of charges now owed, which is shown on the Court papers.
    1.6. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. This practice was singled out for criticism in the 23rd December 2016 Ministry of Justice announcement of a crackdown on companies issuing claims using incorrect addresses (see exhibit A). Announcing the measures, Justice Minister Sir Oliver Heald stated:

    "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments.In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address."
    1.7 The Claimant pursued this claim, relying simply on a letter to an old address, three months after the announcement of these measures by the government. In so doing, they have disregarded the specific and stated intent of the government and Parliament regarding the pursu
    1.8 Civil Procedure Rule 6.3 requires that "Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’)."
    1.9 The information the Claimant used was five years old when the Claim was served. The long time elapsed and the lack of response to the claim constitute reasonable grounds to believe that the Defendant had moved. A prudent claimant should assume that lapse of time, or a failure to respond to correspondence, gives rise to a risk that the defendant has moved. The Claimant was negligent in failing to ascertain that a five year old address was still correct before attempting to use that address.
    1.10 Very simple and reasonable steps would quickly have provided the Claimant with both confirmation that the address they used was no longer where the defendant resides, and the information needed to acquire a current address. Such sources of information include, but are not limited to:
    1.10.1 The electoral register, where I have been listed at my current address for over four years
    1.10.2. The local council, where I have been listed at my current address for payment of council tax for over four years
    1.10.3 The DVLA. My current driving licence was issued on 28th August 2014, to my current address. The V5C documentation relating to the vehicle involved in this claim will confirm it was sold in February 2016. The new registered keeper is a family friend who could have either confirmed my new address or provided details of the car I bought in a part exchange deal, which is registered at my new address.
    1.10.4 Internet search engines such as google. The first four links returned by a google search of "[MY NAME FIRST LINE OF MY OLD ADDRESS]" relate to me, as do the first seven searches returned by a google search of "[MY NAME MY TOWN]" and four of the first five links returned by "[MY NAME MY TOWN MY OLD CAR REGISTRATION]". Most of these links provide contact information such as email or mobile telephone.

    1.11. On the basis provided above I argue that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim. They did not take reasonable steps to confirm that a five year old address was still my usual residence, nor did they take reasonable steps to identify my current residence, where I have lived for four years, or to identify an alternative place or alternative method whereby service might be effected.
    1.12. Considering the above I was unable to defend this claim properly. I therefore believe that the Default Judgement against me was issued incorrectly and should be set aside.
    2. Order dismissing the Claim
    2.1. It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the incident. The Defendent ceased to be the registered keeper of the vehicle in February 2016, when the vehicle was sold
    2.2. The alleged incident took place on 7th March 2012, in The Square car park Chorlton. I have no memory of visiting this site on this date.
    2.3. The Protection of Freedoms Act 2012 (PoFA 2012), which came into force in October 2012, is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. From the limited information provided by the Particulars of Claim, I note that the date of the alleged contravention is 07/03/2012 which predates the enactment of PoFA 2012. This being the case, the claimant cannot hold the registered keeper liable, only the driver.
    2.4 No evidence has been produced by the Claimant to demonstrate the identity of the driver. I have no memory of visiting the site of the incident on this date. Two drivers were named on the insurance for the vehicle in question at the time of the incident (see exhibit B), while other drivers with comprehensive car insurance can drive cars with the keeper's permission.
    2.5 I have received no documentation regarding this case so I am unable at present to properly assess or address the assertions made by the Claimant or the evidence used to justify these.
    2.6. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
    2.6.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car park in question, and will have no proprietary interest in it. 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 landholder, and only they would have been able sue for any damages or trespass.
    2.6.2. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.
    2.6.3. 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 motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to BW Legal


    2.7 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. A fuller statement of the kind of defence I intend to make, and would have made if I had been aware of the Claimaint's Claim, is provided in exhibit C
    2.8 In order to make informed decisions and statements in my defence as keeper of the a vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant.

    I will also be submitting a longer more detailed draft defence as an exhibit - this was advice I received on an earlier draft. I can send the draft of that over too if it is helpful.

    Many thanks in advance for your help! These forums have already been very useful for me in wrapping my head around this stressful situation.
    Tags: None

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Current advice (2018) is DO NOT IGNORE a parking charge.
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