BAckdoor CCJ HIGHVIEW/DCB(L) ANPR PCN- set aside hearing -17 min overstay - Urban Exchange M4 Manchester

[FTMDave]

I don't want to be overly optimistic - but I haven't seen one properly-argued set aside application ever fail on CAG.  You have a great chance.

 

I'll read through the fleecers' pages of tripe properly tomorrow, but I see straight away their invoice doesn't respect POFA timeframes so that's already enough to defend the action.

 

You need to produce

   - your own Witness Statement

   - a draft defence

   - a draft of the order you want the court to grant.

 

This will probably take an hour at most as you are not preparing for the final court hearing, just showing the judge why they should set aside.

 

What deadline has the court given for you to produce this documentation?

 

 

Edited May 18, 2022 by FTMDave
Typo

[FTMDave]

Have a read of pages 3-6 of 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/page/3/#comments  which should explain the documentation necessary.

 

More tomorrow.

 

 

 

[FTMDave]

LFI - the OP never received the PCN due to moving.  However it's on page 19 of the fleecers' WS.  Dated 27 days after the event.

 

evilmrkipling - can you please answer the question about the deadline the court has given for you to submit your documentation?

[FTMDave]

OK, thanks.  I was worried about a deadline.  You need to prepare a short Witness Statement which states

   - the move from address A to address B and therefore you never received the Letter of Claim or court papers, and proof of the same as an exhibit;

   - mention of a draft defence as a separate exhibit (I've knocked something up below);

   - that immediately you realised you had a CCJ on (XXXXX date) you prepared to apply for set aside, so the Claimant's Witness Statement point 20g about prompt action is incorrect;

   - mention of the order you would like the court to issue as a separate exhibit (there is an example by Andyorch on Zimbird's thread.

 

Ideally e-mail the court their copy requesting a return receipt and post the fleecers theirs 2nd class with a free Certificate of Posting from the post office.

 

DRAFT DEFENCE
   (1) the Claimant is suing the wrong person, the Claimant should be suing the driver of the vehicle and has not established keeper liability under Schedule 4 of the Protection of Freedoms Act 2012;
   (2) Locus Standi - the Claimant is not the landowner and I do not believe they the authority to bring this claim.  A letter - not even from the landowner - saying there is an agreement is not the same as producing an agreement (Claimant's Witness Statement exhibit 1);

   (3) the convoluted "free parking voucher" scheme is an unfair term under the Consumer Rights Act 2019;
   (4) 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;
   (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.  Their action is expressly forbidden under the Parking (Code of Practice) Act 2019 and ensuing government Code of Practice, as well as previous legislation.

[FTMDave]

So no deadline for documentation on the court order.  Good.

 

I'm no expert but I've noticed the courts don't look too kindly on requests to change court dates.

 

You're damn unlucky, until very recently all the hearings were telephone due to COVID.

 

I suppose there's nothing to lose by phoning the court, emphasising your illness and that you still feel vulnerable to COVID, and asking for a telephone hearing.  They can only say no.

 

if the worst comes to the worst, as long as you inform the court of non-attendance seven days before the hearing, you won't be "penalised" and the judge will decide on the papers submitted, but obviously it would be better to be present to answer any questions from the judge.

 

Anyway, give the court a ring and when you have time post up a draft of your WS.

[FTMDave]

So perfect.

 

Try to phone the court today before it closes.  COVID.  Illness.  Hospitalisation.  Vulnerability.  Etc.

 

You can follow up with e-mails tomorrow and Monday.  Recently someone living abroad took this route and got a video call hearing.

 

Worst comes to the worst you send in your evidence on Tuesday with a covering letter as Andyorch explained.

[FTMDave]

That is really good work.  I reckon it would get your set aside as it stands.  However, as you've produced it on a Friday and we have the whole weekend to tweak it, why not?

 

A WS has to end with a Statement of Truth.  Just before that you should refer to the draft defence and draft order.  So end with -

 

I attach a draft defence and also a draft of the order I would respectfully request the court to make.

 

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.

 

You need to number your points in your WS the way the fleecers' solicitors have and the way you have with the draft defence.

 

It would be better if you could produce some proof of your change of address as an exhibit.  Anything to prove you moved out?  Or proof of living at a later address?  Passport stamps?

 

Personally I wouldn't bother with (6), (7) & (8) in the draft defence.  There is a lot of repetition and here you're not preparing for the court hearing to beat the fleecers claim, it is a simple hearing for a set aside where you have to show the judge (a) why you didn't defend initially and (b) that you have a realistic chance of successfully defending the claim.

 

Any update on contacting the court about your not being able to attend the hearing?

[FTMDave]

That is a cracking Witness Statement - well done.

 

That should be game, set & match.  Proof you couldn't have defended the first time and proof you have a defence now - and while you're at it, proof that you promptly applied for set aside.

 

Will answer your questions in a minute.

[FTMDave]

3 hours ago, evilmrkipling said:

Is there any argument I can add to the defence about the fact they turned £165 into £259?

They are at least entitled to try to claim interest, although the court would be unlikely to grant it  all.  The court & legal fees are correct too.  The main issue is that they have turned £100 into £165 when this is specifically ruled out in both POFA and the new government CoP.

 

3 hours ago, evilmrkipling said:

Is their letter dated 30/06/2021 actually compliant with the pre action protocol? Are they allowed to bring a claim on 25/11/2021 5 months later after only sending 1 letter? 

As far as I know, yes.  They did send a Letter of Claim.

 

1 hour ago, evilmrkipling said:

Do I need to a seperate application for relief? Or include something specific here in the WS?

I don't know what the fleecers are wittering on about.  Your WS with the two attachments is fine. 

 

In (5) it should be  if the claimant had checked the land registry they would have seen that the property had been sold on the 1st of October

 

You might as well spell it out in (9)  I believe I have a realistic chance of defending this claim.  I attach a draft defence and also a draft of the order I would respectfully request the court to make.

 

The only problem is your not attending court.  I think it's too late now to try to find a way round this.  Do what Andyorch says and include a covering letter saying you will not be able to attend the hearing due to being out of the country and no disrespect is intended towards the court.  It's essential you e-mail both the court and the fleecers with everything on Monday as IIRC you're supposed to give the court seven days notice of non-attendance.

 

 

 

[FTMDave]

That is brilliant work, well done.

 

Regarding the defence - I'll join in the nit picking   In (1 b) I think it should be Notice to Keeper, not Notice to Driver.  I think Notice to Driver is something different, i.e. a windscreen ticket.

 

In (4 c) they are allowed to increase £55 to £95 because the "real" figure is £95 and the £55 is a discounted figure for early payment.  Yes I know that's semantics but it's what the law says.  What they are not allowed to do is increase the £95, yet have done so.

 

Interesting your part about solicitor's costs.  That's not something we normally bring up, but perhaps we should do.

 

At the start you write "5.  Consumer Rights Act 2019" but underneath this section seems to be missing.

 

A tactical thought.  In a few recent set aside the cases the fleecers haven't bothered to turn up.  Presumably they know a set aside is very likely to be granted, so they might as ignore the set aside hearing and concentrate on winning the later final hearing where they might get their money.

 

But if they know you won't turn up - then they might so they can lie in your absence.

 

https://www.legislation.gov.uk/uksi/1998/3132/article/27.9/made  seems to suggest you have to inform the court of non-attendance, but not the other party (my emphasis)

 

Non-attendance of parties at a final hearing

 

27.9—(1) If a party who does not attend a final hearing—

 

(a) has given the court written notice at least 7 days before the date of the hearing that he will not attend; and

 

(b) has, in that notice, requested the court to decide the claim in his absence,

 

the court will take into account that party’s statement of case and any other documents he has filed when it decides the claim.

 

Let me check this with others who are more knowledgeable about court matters, then get back to you.

[FTMDave]

Remember that your hearing is for set aside, and only for set aside.

 

The judge couldn't give a monkey's whether your defence is legally sound and able to beat the fleecers on every point.  That's for the judge for the final hearing much later down the line.  The judge will want to know

   - if you have a serious reason for not defending the first time around, and

   - if you have a defence.

 

That's all.  Oh, and you didn't faff around for months before applying for set aside.

 

Therefore it occurred to me that forcing motorists to queue up in shops to get vouchers to then faff around at machines to input codes, rather than just, er, allowing two hours free parking, could be construed as an unfair term under the Consumer Rights Act "notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer".

 

To a large extent at this stage it doesn't really matter if I'm right or wrong or clutching at straws, the judge just wants to see an series of bullet point you intend to argue in your defence.

 

If you do include it I now see the Act is 2015. not 2019.

[FTMDave]

Turns out you do need to inform the fleecers of your non-attendance.

 

So if you haven't already done it, today e-mail both the court and copy to the fleecers, with the claim number and the parties stated in the subject line, using "return receipt", with

   - Witness Statement & exhibits

   - draft defence

   - draft order

   - covering letter about non-attendance.  That might as well include the legal wording "Due to being abroad I will not be able to attend the hearing.  No disrespect is meant towards the court.  I request that you decide regarding set aside based on the papers I have submitted".

 

Yes its still applicable because if not used then the claimant may invoke CPR 27.11

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.11

 

Setting judgment aside and re-hearing

27.11

 

(1) A party –

(a) who was neither present nor represented at the hearing of the claim; and

(b) who has not given written notice to the court under rule 27.9(1),

may apply for an order that a judgment under this Part shall be set aside(GL) and the claim re-heard.

 

(2) A party who applies for an order setting aside a judgment under this rule must make the application not more than 14 days after the day on which notice of the judgment was served on him.

 

(3) The court may grant an application under paragraph (2) only if the applicant –

(a) had a good reason for not attending or being represented at the hearing or giving written notice to the court under rule 27.9(1); and

(b) has a reasonable prospect of success at the hearing.

 

(4) If a judgment is set aside –

(a) the court must fix a new hearing for the claim; and

(b) the hearing may take place immediately after the hearing of the application to set the judgment aside and may be dealt with by the judge who set aside the judgment.

 

(5) A party may not apply to set aside a judgment under this rule if the court dealt with the claim without a hearing under rule 27.10.

Rules 27.12 and 27.13 are revoked.

[FTMDave]

So have you contacted the court to request a telephone hearing?

[FTMDave]

Good point BN!  I'd thought more about it being unreasonable for a motorist to go through all that rigmarole, it hadn't clicked with me how much time someone might waste with all the faffing about.  A point for the WS if the case goes that far.

 

 

[FTMDave]

I haven't got time to read through everything you sent - but it looks superb.

 

I presume you didn't send the covering letter we prepared but rather a request for a telephone hearing?

 

What worries me is that you are cutting it ultra-fine with this not attending court stuff.  Remember if you don't attend without informing the court properly the judge is entitled to just chuck your application in the bin.  Court staff are overworked and may read your mail days late.  I would very strongly suggest sending this tomorrow before 12:30 should you hear nothing tomorrow morning:

 

Due to being abroad I will not be able to attend the hearing and am therefore informing the Court more than seven days prior to the hearing Pursuant to CPR 27.9 No disrespect is meant towards the Court.  I have requested a telephone hearing with the consent of the Claimant but at the time of writing have not yet received a reply.  Should the telephone hearing request not be granted I would ask that the Court decide regarding set aside based on the papers I have submitted.

 

[FTMDave]

I'm really sorry to hear about this result.

 

I have no idea what mania was going through the judge's head.

 

It's the first time since I've been on the site that we've seen a well-argued set aside application be turned down.  The judge isn't even supposed to go into the intricacies of the defence, but rather just see if you have a reasonable defence which you had.

[FTMDave]

Thank you for taking the time to report back in such depth.

 

We are all a bit shocked - nothing like this has happened certainly in the six years I've been on the site.

 

It may be that you just got an insane judge.  But there might be more to it.  Plenty for us to consider.

 

We're just sorry the outcome was so bad for you.

 

 

[FTMDave]

As dx says, when we have a defeat of such magnitude we need to reflect and try to understand why.

 

It might be of course that this was just judge lottery - certainly making up utter nonsense that POFA allows 28 days for delivery and immediately asking if the OP was the driver heavily hint at a dodgy judge.

 

It could also be that mistakes were made.  The proposed defence that the OP filed was far, far more detailed than the site originally suggested.  If this was a mistake by the OP then responsibility for the mistake is shared as I for one referred to it as "really good work", "cracking", "brilliant work" and "looks superb".  But I agree with dx that in the future the bare minimum should be argued in set aside hearings.

[FTMDave]

Also court hearings are back to being face-to-face now.  Anything that disadvantages a Cagger during a face-to-face hearing such as them being on the phone or submitting their evidence only on the papers should be heavily discouraged. 

[FTMDave]

Sadly I think you're stuck with the CCJ.

 

Even if you paid it it would still be on your credit file.

[FTMDave]

Sadly I think that boat has sailed.  The fleecers opposed your set aside application and won.