Bank Park Management Windscreen PCN CCJ - didn't receive anything - set aside hearing upcoming - help!!-

[TheCat08]

Good Afternoon All

 

Since the brilliant help I got on this site I have been spreading the word. 

 

An elderly neighbour told me he had a CCJ against them for parking in disabled bay at Merryhill Centre. 

 

His wife was driving that day & it was as his wife's blue badge that had slid off the dashboard. 

 

I've asked for the original documents, but he no longer has them, resigned to the fact the CCJ was the end & he would have to pay the £360. 

 

He does recall there was a photo, but only from the rear of his car.  His wife tells me it was a notice on the windscreen.  As neither he or his wife are  not at all computer literate, I offered to see if I could get it set aside. 

 

Only yesterday he has brought me a letter with date of hearing 5th January 2023.  In hindsight, I should have started SAR at the time. 

 

The Notice of Hearing Application is asking to submit documents in respect of hearing.  I've gone through the site, but not been able to find anything to help me submit a defence for this. 

 

Forgot to put in. 

 

They say they never received any notice of it going to court & just thought the last letter from the parking company, then the Claimform was the correct process had been followed. 

 

Is there any chance you can help me with this please? 

 

Hate to know people are being exploited as a cash cow by these horrible people!!  

[TheCat08]

Blue Badge Bank Park.pdf

[dx100uk]

threads merged and tidied

 

need to see their n244 application and what they put as the reason please.

 

dx

[TheCat08]

The N244 was that the original court papers had not been received & copy of valid blue badge was sent

[AndyOrch]

So, he has not got a CCJ yet?  Otherwise there wouldn't be any need for a hearing.

You need to get the full story and details of the claim. Has he made an application to set a side ?

 

Quote

The Notice of Hearing Application is asking to submit documents in respect of hearing.

 

 

[dx100uk]

so no 244 you are getting the court paperwork numbers mixed up-

they have an N1 claimform pack.

 

can you please fill this out

and post up the defence they filed on MCOL please

 

and did they send a CPR to the solicitors yet?

 

 

 

[FTMDave]

From the OP's attachment in post 4 it seems the neighbour got a CCJ and the January hearing is set aside.

 

If so there is one vital question - why didn't they defend when the original claim form arrived?

 

 

[TheCat08]

Sorry, I don't appear to have given the info in a manner it can be understood.  Please let me try again !!

 

They never received the original court papers, so no defence was submitted.  I applied for set aside hearing & this is what has been granted, hence the hearing January.  I now need to put together a defence & this is why I am asking for your guidance / support.   Hope this clarifies.  

[dx100uk]

10 hours ago, dx100uk said:

need to see their full n244 application and what they put as the reason please.

 

dx

 

why didn't they receive anything ?

have they moved in recent times?

so at the time of the windscreen PCN the address on the Car's V5C was different to today?

 

dx

 

 

[FTMDave]

Plus - how did they find out they had got a CCJ?

[TheCat08]

Unable to post N244, as not got copy.  In all honesty, I didn't think the hearing would be granted, so am pleased to have got this far.  The reason given on N244 was original court papers were not received & valid blue badge had been on display, but genuine error with it having slid off the dashboard. 

 

The reason believed original court papers were not received is because there is another address very similar to theirs. Every now & then when a new posty in the area, they get each others mail.  Issue is the the other address is vacant due to owner having passed away.  Relatives go to the address on adhoc basis, but rarely pass their mail to them !!

 

They found out about CCJ as they did get that notice. 

 

I have had a look through the site & seen a defence of:- 

 

The Defendant contends the claim vague and generic in nature which fails to comply  with CPR 16.4.  The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation. 

1.  A contract was never entered into by me.   As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance.  The Claimant clearly states they were  only contracted to provide car park management services, therefore is not capable of entering into a contract with the Defendant on its own account.  The car park is owned by and  terms of entry,  set by the landowner. 

 

2. It is admitted Defendant is the recorded keeper of the vehicle. The claimant is not in a position to state who the driver was at the time. 

 

3. There are no contractual costs and interest cannot be accrued on a speculative charge.

 

The Claim is denied in its entirety.  It is denied the Claimant is entitled to the recovery or any recovery at all.

 

Could this be adapted as their defence at all? 

[FTMDave]

A set aside hearing is very different from a hearing where the judge decides who is right or wrong in the dispute.

 

It is a simple hearing to decide if your friend should be given the right to defend the case, having failed to so the first time around.  The judge will need to be convinced that -

 

1.  Your friend never got the original court papers.  So mention of the similar addresses.  Occasions in the past when post had gone to the wrong address mentioned.  Etc.

 

2.  Your friend has a reasonable change of defending the case.  So there is a BB.  It's falling off the dashboard is "de minimis".  The government CoP states PCNs should not be issued in such cases.  Etc. 

 

In fact (2) can quite easily be expanded to include all the other reasons why the fleecers' PCNs are usually pants.

 

If you read through Zimbird's thread  https://www.consumeractiongroup.co.uk/topic/439264-unknown-vcs-ccj-bristol-airport-stopping-in-a-zone-where-stopping-is-prohibited-was-abroad/#comments  the whole process will become clear.

 

[TheCat08]

Amazing FTMDAVE.  Thank you for you help.  I will read through the thread. 

[TheCat08]

I've read through the thread & think I have an understanding of the process. 

 

From this I have put together the following, on which I would welcome any input in getting this right:-

 

######### Draft order######

Between

 

Claimant xxxxxxxx

 

-and-

 

Defendant xxxxxxx

 

Draft Order

 

It is respectfully requested the that the Judgment dated xxxxxx claim number xxxxxxxx issued under Part 12 CPR be set aside pursuant to CPR 13.3. a/b.

 

It is Ordered

 

The Claim be set a side and the defendant be allowed to defend the claim

Costs in this application

 

 

Signed 

 

Dated.

 

 

 

I did not receive the original county court claim form, therefore had no opportunity to defend myself.  I truly & firmly believe this was due to a postal error, as there is another address very similar to mine which is XXXXXXXXX.  This address is not occupied, as the resident is deceased.  I became aware of the County Court Judgement against me when I got the judgment decision, which I acted upon immediately.

 

If the set aside order is granted, I intend to defend the claim on the basis that: 

 

  (1)  The Claimant is suing the wrong person - I was not the driver of the vehicle and the Claimant has failed to follow the provisions of Schedule 4 of the Protection of Freedoms Act 2012 to establish keeper liability.

 

   (2) Locus Standi - the Claimant is not the landowner; therefore, as set out in the draft order,  I am requesting the original judgment XXXXXXXX  issued under Part 12 CPR be set a side pursuant to CPR 13 .3. a/b, be set aside. 

 

 

   (3) the Claimant is claiming the debt, legal costs and an extra invented sum as an attempt at double recovery which invalidates the whole claim.

[Nicky Boy]

How about mentioning the slipped blue badge situation?

[FTMDave]

You're 90% of the way there.

 

Your friend needs to produce three documents for the court.

 

1.  A Witness Statement, which mentions how they found out about the PCN and the stuff about the dodgy address.  It would be a good idea to beef it up and mention other occasions when post has gone missing.  If you look at post 73 here  https://www.consumeractiongroup.co.uk/topic/450676-brittaniabw-windscreen-pcn-claimform-west-quay-retail-park-southampton-so15-1ba/page/3/#comments  there is an example of how to set out a WS.  You friend's just needs to be a few paragraphs.  The WS should also mention your friend is filing a draft defence and a draft of the order they would like the court to make.

 

2.  A draft defence.  I see you've got some points already.  As Nicky Boy says, the slipped blue badge is an ace to play.  Mention it was clearly visible and the fact it had slipped off the dashboard is "de minimis" and contrary to point 6.2 of the government's Code of Practice.

 

3.  A draft court order.  i see you already have this.

 

[TheCat08]

So is this good enough do you think & is it in the correct order to submit:- ??

 

######### Draft order######

Between

 

Claimant xxxxxxxx

 

-and-

 

Defendant xxxxxxx

 

Draft Order

 

It is respectfully requested the that the Judgment dated xxxxxx claim number xxxxxxxx issued under Part 12 CPR be set aside pursuant to CPR 13.3. a/b.

 

It is Ordered

 

The Claim be set a side and the defendant be allowed to defend the claim

Costs in this application

 

 

Signed 

 

Dated.

 

---------------------------------------------------------------------------------------------------

xxx  & xxx Court

 

BETWEEN                                     xxx (Claimant)

                      

                                                                                                AND

 

                                                                                  xxx (Defendant)

                                      

 

Witness Statement of MR. xx

 

Introduction:

1.     I, Mr xxx, am the Defendant in this claim. I represent myself as a litigant-in-person, with no formal legal training. Everything in the following statement is true to the best of my knowledge and belief.

 

2.    In my statement, I shall refer to exhibits within the evidence section supplied in this bundle, referring to page and evidence numbers where appropriate.

 

3.    I am the registered keeper of the vehicle in question in this case which is xxx

  

4.       I was not the driver of the vehicle and the Claimant has failed to follow the provisions of Schedule 4 of the Protection of Freedoms Act 2012 to establish keeper liability.

 

5. I did not receive the original county court claim form, therefore had no opportunity to defend myself.  I truly & firmly believe this was due to a postal error, as there is another address very similar to mine which is XXXXXXXXX.  This address is not occupied, as the resident is deceased. I get the deceased person's mail & my mail goes to the other address to which there is no access.   

 

6. I became aware of the County Court Judgement against me when I got the judgment decision, which I acted upon immediately by completing the N244. 

 

Locus Standi:

 

5.        I became aware of the County Court Judgement against me when I got the judgment decision, which I acted upon immediately.

 

7.        The Claimant is not the landowner.  Therefore, as they have failed to show any such contract between the parties, they do not have the authority from the landowner to bring claims in their own name.   I am requesting the original judgment XXXXXXXX, in the draft order,  issued under Part 12 CPR be set aside pursuant to CPR 13 .3. a/b, be set aside. 

 

 

De Minimus:

 

8.    The person in use of the vehicle at the time was the holder of a valid Blue Badge.  The Blue Badge was put on display on the dashboard.   However, on the person's return to the vehicle the Blue Badge had slid off the dashboard onto the passenger seat, but was still in a position to be viewed wholly. 

 

9.   It is contended that a thorough check through the windscreen & side windows took place and the Blue Badge must have been seen.

 

Double Recovery:

 

10.   As well as legal costs, The Claimant is seeking  recovery of the original charge plus an additional costs described as “contractual costs and interest” or “Debt collection costs”. No further justification or breakdown has been provided as required under Civil Procedure Rule 16.4. (page 33, Exhibit 06)

 

10.   Unless the Claimant can clearly demonstrate how these alleged additional costs have been incurred this would appear to be an attempt at double recovery.

 ( DO I LEAVE 11. & 12. IN ??)

11.   Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum (£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out ab initio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 on 4th September 2019, District Judge Jones-Evans stated ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued, he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

 

12.   In Claim numbers F0DP806M and F0DP201T, Britannia vs Crosby the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ''It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

 

13.   The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.

 

14.   It is the Defendant’s position that the Claimant in this case has knowingly submitted inflated costs and thus the entire claim should be similarly struck out in accordance with Civil Procedure Rule 3.3(4)

 

15.   The Defendant is of the view that the Claimant knew, or should have known that to claim in excessive a parking charges on private lands is disallowed under the CPRs, the Beavis case, the PoFA and the CRA 2015, and that relief from sanctions should be refused.

 

16.   I invite the Court to dismiss this Claim in its entirety.

 

Statement Of Truth:

 

17.   I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

[FTMDave]

You're mixing up two different types of court hearing.

 

Your friend has to prove to the judge that there was a valid reason why they didn't defend when they had the chance to.  That's essentially it at set aside. 

 

If your friend is successful, then time will be rewound as in Doctor Who IYSWIM and both parties will be back to the stage where the claim form has just dropped onto your friend's mat, your friend will decide whether to give in or defend (obviously the latter) and things will proceed to a court hearing where both parties will lock horns in front of the judge.  Then what you have prepared will come into play.  But that's months away.

 

The WS just needs to be short, something like this -

 

IN THE xxxxx COURT

 

BETWEEN                                                               xxxxx (Claimant)

                      

                                                                                                AND

 

                                                                                  xxxxx (Defendant)

                                      

 

Witness Statement of MR. xxxxx

 

1.  I, Mr xxxxx, write this statement in support of my application to the court for judgement in the case xxxxx to be set aside.

 

2.  I am the registered keeper of the vehicle in question in this case which is xxxxx.

 

3.   I did not receive the original county court claim form, therefore had no opportunity to defend myself.  I truly & firmly believe this was due to a postal error, as there is another address very similar to mine which is XXXXXXXXX.  This address is not occupied, as the resident is deceased.

 

4.  I often receive the deceased person's mail & my mail goes to the other address to which there is no access.   

 

5.  I only became aware of the County Court case against me when I received the judgment decision, which I acted upon immediately by completing the N244. 

 

6.  I believe I have a realistic chance of defending the claim.

 

7.  Along with this Witness Statment I am also sending a draft of the order I would respectfully request the court to make, as well as draft of my reasons for wishing to defend the case.

 

Statement of Truth

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

[FTMDave]

You've got the draft order spot on.

 

A moment while I deal with Part 3, the defence.

 

######### Draft order######

 

Between

 

Claimant xxxxxxxx

 

-and-

 

Defendant xxxxxxx

 

Draft Order

 

It is respectfully requested the that the Judgment dated xxxxxx claim number xxxxxxxx issued under Part 12 CPR be set aside pursuant to CPR 13.3. a/b.

 

It is Ordered

 

The Claim be set a side and the defendant be allowed to defend the claim

 

Costs in this application

 

 

Signed 

 

Dated

[FTMDave]

Draft defence

   (1)  The Claimant is suing the wrong person, I was not the driver of the vehicle and the Claimant has failed to follow the provisions of Schedule 4 of the Protection of Freedoms Act 2012 to establish keeper liability;
   (2)  Locus Standi - the Claimant is not the landowner and I do not believe has the authority to bring this claim;
   (3)  I do not believe the Claimant has obtained planning permission for their signs which is a criminal offence and makes it impossible to have formed a contract with the driver;
   (4)  The Claimant's whole claim is based around an alleged breach of a parking contract.  The person in use of the vehicle at the time was the holder of a valid Blue Badge.  The Blue Badge was put on display on the dashboard.   However, on the person's return to the vehicle the Blue Badge had slid off the dashboard onto the passenger seat, but was still in a position to be viewed wholly.  Such a "breach" is "de minimis".  The government Code of Practice, set up by the Parking (Code of Practice) Act 2019, also states that tickets must not be issued in such circumstances.

   (5)  The Claimant is claiming the debt, legal costs and an extra invented sum as an attempt at double recovery which invalidates the whole claim.

 

 

[FTMDave]

When it the deadline to send in the WS?

 

I ask as I am not an expert at set asides at all, I've just picked stuff up like in the Zimbird thread, so it would be wise to hang on a bit and let wiser heads check these drafts.

[TheCat08]

So do I have to show the draft defence or just the WS with the draft order for the set aside?   Sorry for being confused by this ! 

 

There is no date stated on the notice of hearing for docs to be submitted !  Thought better get done before Xmas.  

 

I'm very comfortable with what you have but together FTMDave & very grateful. 

[AndyOrch]

I would go with the witness statement version given that the court has accepted the application which I assume contained brief details for the reason in making the application......if you can't sway the judge at the set a side hearing you won't get chance to submit a fuller version because the application will be dismissed there and then.

 

Andy

 

 

.

[FTMDave]

Send the court the three documents all together

   - Witness Statement

   - draft defence

   - draft order.

 

If using snail mail, get a free Certificate of Posting from the post office.

 

If e-mailing, in the subject title make sure you mention the claim number, the names of the two parties, and "set aside".  Obviously click "Return Receipt".

 

 

[TheCat08]

OK.  Thank you both.