CEL B2B ANPR PCN Claimform - defended but court errored - going for set aside - Greyfriars Car Park Priory Road Bedford MK40 1BY ***Claim Discontinued***

[Jenny21]

We run a garage which allows the clients to use a courtesy car for free, one such client got a parking ticket, normal replies to the ticket were made but CE took it to court. 

In the claim they named the Director *and* the business as if they were a single entity. 

We defended the claim but the defence was rejected because the Court believed the case to be against the Director, and originally he'd been on holiday so it was signed by an authorised member of staff. 

We corrected the Court on this and re-submitted the defence immediately, and the defence was accepted by the Court.  However on the same day as they accepted our defence, the Court also entered a Judgment against us in favour of CE.

We have applied to set the Judgment aside (and toss the case as its against both Director and Company as if they are one entity).  *The application to set aside does include the defence that it was neither the director nor the company that entered into a contract with CE*, this bit becomes important! .  The case has been sent to District Judge for hearing.

Today, we have received a without prejudice offer from CE to accept setting judgment aside if we pay their original £100 fee plus the Court fee of £35. 

In their offer they accept that the Court didn't process our defence in a timely manner but state that our application does not lay out any defence to the charge (which actually it does) and state that for this reason they anticipate that the application will fail and judgment would not be set aside.

Obviously, having a CCJ on file is a major issue, so we have to consider this offer carefully but our questions are:

1) In the hive mi ds experience, what is the likelihood that the application to set judgment aside will succeed and allow the case to proceed to trial? 

2) Were we to accept the offer would the Court refund the application fee (£275)... because if not then we would still be significantly out of pocket and the only gain would be clearing the CCJ!

3) What would y'all do? 

[dx100uk]

urm...2nd B2B cel default judgement / n244 set aside this week.

 

pers id demand cel pay your fee too, they are obviously on the back foot.

 

or ring the court and state  because of the courts earlier error resulting in you having to file the set aside, the claimant has agree to the set aside by consent , but what happens to your  fee?

is it refunded as it was the result of their error?...not heard of that happening mind.

 

 

[Jenny21]

The court couldn't say if the fee would be refunded or not, and we feel our defence is strong, so we are minded not to accept the offer.  The *only* reason to accept is to get rid if the CCJ - we've never done an application like this before and really just wondered whats the chances of success? 

 

If the Court *do* set it aside, we'd at least have a trial and time to pay it without it being registered against us on our credit file.  Thoughts?

[Nicky Boy]

So...

Gamble the £275, hoping for set aside,

OR

Pay the Fleecers £135 to agree set aside and the £275 is still a gamble (might not get refund)

 

Without a lot more information on all the preceding PCN, Reminders, paploc, etc I personally wouldn't be able to make a decision.

Which begs the question Jenny, if letters were dropping on the doormat, why didn't you come here earlier?

You've been a Cagger for some time and even commented on other PPC threads...

[BankFodder]

And of course you could help us to help you by putting up your application notice in PDF format so we can see what you're saying and get an idea of what your proposed defence is going to be – not in terms of the correct party being sued – but in terms of the likelihood of the defence succeeding at trial.

[Jenny21]

@Nicky Boy @BankFodder 

I am going to post the application and defence but I need to redact the personal details first (didn't have time today!) .

The defence is

1) that the car was owned by the business so the Director shouldn't have been on the claim

2) it was neither the Director nor an employee of the company driving at the time, so neither of them were aware of, nor capable of, entering into any contract with the claimant. 

The application is made on the basis that

1) a valid defence was properly submitted on time and should have been accepted for the business which is the named defendant.

2) Having pointed this out, the Court accepted the defence which we had re-submitted to the Court on the same day as we recieved the rejection.

3) we recieved the rejection late because it was sent to the wrong address by the court, which left less time on the clock for us to resubmit, however, the time that we resubmitted it was still within time, it just went out of time by the time that the Court got around to processing it. 

4) But for the Courts delays in processing the defence, (a fact beyond our control) it would have been accepted by the Court *before* the defendant was eligible to apply for judgment; and the Court having confirmed that requests for judgment are not subject to the same delays, thats why both the resubmission and the CCJ order were processed on the same day.

Why didn't I come here sooner?  Until the Judgment was granted on the same day as the resubmitted defence (which was submitted within time) this was a straight forward defended case, and we are confident in the defence. 

We have never run into this scenario before and never dealt with a 244 app to set aside, so I'm unfamiliar with how those normally proceed.  What's the liklihood of success in such a case? 

[FTMDave]

I've been on the site for seven years, and until recently there had been a 100% record with set asides in private parking company cases.

Recently however three set asides were not granted, in one case it was clearly the Cagger's fault, in the other two there was just a rubbish judge.

So set asides are granted a lot more than they are not granted, as that is usually in the interests of justice - but there is no guarantee.

As others have said, we need to see your draft application and the defence.  However, from a first glance, your defence is very weak as the fleecers will try to say you should have named the driver, and this point needs to be tackled.

Can you please also upload the original PCN.

 

[Jenny21]

@FTMDave OK, thanks, I will upload it this evening, I'm just doing the reductions first. 

I think we are minded to reject the offer and take our chances with the Court.  We are considering (if we win the N244 hearing) whether we should  consider making them an offer to pay the £35 if they withdraw the case. 

[lookinforinfo]

Hi Jenny could you please complete this questionnaire and get the ball rolling in building up a strong defence for you.

[Jenny21]

@lookinforinfo I can't see the questionnaire?  Have you gotya link? 

[lookinforinfo]

I am sorry Jenny-I forgot to post it.

[dx100uk]

we also need this doing.

 

and its probably best just to scan up everything in/out (bothsides) in date order to one mass PDF

read upload carefully.

its a poor show you went off your own back with the defence, having already looked here, should have at least popped it up before you ever filed it. not think its ok in your mind.

dx

 

[Jenny21]

1 Date of the infringement 21/11/2021

Date on the NTK [this must have been received within 14 days from the 'offence' date] 

The original was not received by us, neither did our client tell us they had a ticket. 

The reason we didnt get any correspondence from the claimant was because they sent it to an incorrect address (12, which was unoccupied at the time, instead if units 1&2). 

The first correspondence we got was their Final reminder, at which point we replied explaining that a customer had been driving and identifying her.  The customer also confirmed in writing that it was was hers.

3 Date received 15/11/2022
 

4 Does the NTK mention schedule 4 of The Protections of Freedoms Act 2012? [Y/N?]   We didn't get a notice to keeper, the first correspondence that we received does not mention the Protection of Freedoms Act 
 

5 Is there any photographic evidence of the event? Not that we have seen yet
 

6 Have you appealed? [Y/N?] post up your appeal]  Yes, obviously out of time, but we explained who the driver was and that the car was not in our care or control at the time and the driver also confirmed this.
 

Have you had a response? [Y/N?] post it up  No
 

7 Who is the parking company?  Civil Enforcement

 

8. Where exactly [carpark name and location Greyfriars Car Park Priory Road Bedford MK40 1BY 
 

For either option, does it say which appeals body they operate under.  BPA 
 

If you have received any other correspondence, please mention it here  Final Letter before action and then the claim form

 

[FTMDave]

5 hours ago, Jenny21 said:

The first correspondence we got was their Final reminder, at which point we replied explaining that a customer had been driving and identifying her.  The customer also confirmed in writing that it was was hers.

Excellent.  So you're in the clear.

Well before litigation the charlatans were told they were threatening to sue the wrong person, you identified the right person, the right person owned up, but the imbeciles insisted on suing the wrong person.

In their diseased minds it will be because your appeal was "too late" which will be irrelevant to the court, and in any case the "too late" was because they were incapable of understanding a double digit address, bless them.

Yep, go for set aside, and when you do so request that the spivs be ordered to pay the £275 due to their unreasonable conduct for deliberately suing the wrong person.

However, that is for the morrow.  As everyone else has said, please upload all previous communications.  The more info we have, the more the advice is likely to be correct.  

[lookinforinfo]

Did you tell them it was a courtesy car?  So the driver would have been a hirer of that car. I  expect you were too late to inform them of the situation.

However I may be wrong but when a PCN is wrongly addressed I thought a new PCN had to be raised and the discount offered. had that happened the rogues knew it would have been too late to issue a new PCN from an out of time perspective.

If the address has been wrongly addressed then you argue that the PCN was incorrectly served and the follow ups were out of time.

Edited August 2, 2023 by lookinforinfo
Additional few lines

[Jenny21]

@FTMDave and @lookinforinfo thank you so much for your help, I'm trying to get the documents copied redacted and uploaded ASAP  However, I have some personal issues going on in the background here, which have somewhat slowed me down in this regard!  Thank you for your patience!  

[Jenny21]

I'm struggling to figure out how to update these files.  As update, a hearing for set aside has been set for 2nd Oct, the claimants first replied saying I didn't have a hope in hell (paraphrasing!) And should pay them £175 in which case they wouldn't oppose removal of the ccj.  We rejected that offer because it means we cant get the £275 application fee back. 

Then they wrote to say they hadnt got our reply to their offer so we are being unreasonable, they won't attend the hearing, they've written to the court saying that the ccj should stand and if the court disagrees, then they offer settlement at £135.

I would like some help with this, and I've got all the documents on Adobe but I can't figure out how to upload them here.  It's not allowing the upload from Adobe, or from screenshot.  

 

[Nicky Boy]

Presumably, you've generated the pdf's and saved them?

Just click on this>>> upload <<< and follow the instructions.

[FTMDave]

You have a magnificent case, made even better by this news that the fleecers won't turn up in court.

However, there is the danger that you snatch defeat from the jaws of victory by not arguing the case properly before the court.

We need to see, in particular, the documentation where you and the driver informed the fleecers of who was driving, your application for set aside, and the court order of what to prepare for 2 October.  Bankfodder did ask on 1 August.

[Jenny21]

@FTMDave I have the documents redacted of personal details and ready to upload, I just can't figure out how to do it!  The upload button says it should accept pdfs (which is what they are) but it's not letting me do it.  

[dx100uk]

too big i expect max 4.8mb

split the pdf use the websites listed in our upload guide.

just hit choose files (below)   in the msg you are trying to put it in.

#dx

 

[FTMDave]

This certainly works.  I use it regularly for work  https://www.ilovepdf.com/compress_pdf

 

[Jenny21]

PCN:

 

We refer to the above, and the hearing to set aside judgment scheduled to take place on 2/10/2023 at 10:00 AM.

 

We hereby give notice that we will not be in attendance at the hearing. As such, we kindly request that the following point be taken into consideration at the hearing:

• We have read the Defendant’s reasons for making the application and, in keeping with the overriding objective (CPR 1.1), we made an offer to set aside the CCJ, dismiss the Claim AND no order for costs (see attached), however, the Defendant did not respond.

 

If the Judge believes it appropriate, the Claimant agrees to the removal of the Judgment and for the Claim to be restored, and no order for the Defendant’s costs to be made, as the application was of the Defendant’s own making. In the alternative, if the judge believes it appropriate to restore the Claim, we would additionally agree to the Claim being settled at £135 so as to avoid more Court time being wasted and costs being incurred (by the Defendant and Claimant).

 

Yours faithfully

[Jenny21]

 K9GM75W1.pdf

[Nicky Boy]

 

Jenny

I've hidden the two PDF posts.

They're not redacted properly.

(Second PDF redacted now)

The first multi-page  one is also illegible in parts. Could you please rescan?

I've also edited out the PCN number in your post.

 

.