Judgement for Claimant (in default) Options

[vaiant24]

I already have another thread going defending a PCN issued by a PPC at a site where my granddaughter lives, and has a right to park under the terms of her Lease.
I've just discovered that my granddaughter's husband also received a PCN at the same site. He'd have exactly the same defence as I have. However he ignored it, didn't get the Letter of Claim, and this morning received a Judgement for Claimant (in default) for the PPCfor £288.55 on a £100 PCN.

He could have defended this with ease. But there's nothing to be done, is there? It's all over ...?

This post has been edited by vaiant24: Thu, 20 Feb 2020 - 17:18

[Advertisement]

[Jlc]

He applies to have it set aside - that costs £255.

He just needs a reason why it was 'ignored' (not received) and that there's a reasonable prospect of success.

However he ignored it

Not the best way of dealing with it.

[vaiant24]

He applies to have it set aside - that costs £255.

He just needs a reason why it was 'ignored' (not received) and that there's a reasonable prospect of success.

Is it credible to claim that he didn't receive either DCB Legal's Letter of Claim OR the Court Claim Form when he did receive the judgement, which seems to be accurately addressed, would you think?

[anon45]

He applies to have it set aside - that costs £255.

He just needs a reason why it was 'ignored' (not received) and that there's a reasonable prospect of success.

Is it credible to claim that he didn't receive either DCB Legal's Letter of Claim OR the Court Claim Form when he did receive the judgement, which seems to be accurately addressed, would you think?

It's irrelevant to the question of set-aside whether he received the letter before claim; only whether he received the claim form itself.

[vaiant24]

He applies to have it set aside - that costs £255.

He just needs a reason why it was 'ignored' (not received) and that there's a reasonable prospect of success.

Is it credible to claim that he didn't receive either DCB Legal's Letter of Claim OR the Court Claim Form when he did receive the judgement, which seems to be accurately addressed, would you think?

It's irrelevant to the question of set-aside whether he received the letter before claim; only whether he received the claim form itself.

Thanks. Is the £255 lost forever, or reclaimable if he eventually wins?
I'm very tempted to go ahead with it, as I hate to see the PPC and debt collector get such easy money, but they can't really afford to spend £255, esp if the best outcome is that it saves £288.

[southpaw82]

How long has he known about the CCJ for?

[vaiant24]

How long has he known about the CCJ for?

It's dated 13/02/2020 and he received it yesterday.

[southpaw82]

If he wants to ask the court to set it aside on a discretionary basis (which is the only basis if the claim form was lawfully served - noting that “served” doesn’t mean “received”) then he must act promptly - weeks, at most. He will have to demonstrate to the court that he has a realistic prospect of defending the claim or that there is some other compelling reason to set the judgment aside. The usual way of doing this (assuming such a realistic prospect does exist) is to set matters out in a witness statement that exhibits a draft defence. If the court agrees that there is a realistic prospect of defending the claim then it will most likely set the judgment aside. The usual order is for costs in the case, that is, whoever wins in the end gets the costs.

[vaiant24]

If he wants to ask the court to set it aside on a discretionary basis (which is the only basis if the claim form was lawfully served - noting that “served” doesn’t mean “received”) then he must act promptly - weeks, at most. He will have to demonstrate to the court that he has a realistic prospect of defending the claim or that there is some other compelling reason to set the judgment aside. The usual way of doing this (assuming such a realistic prospect does exist) is to set matters out in a witness statement that exhibits a draft defence. If the court agrees that there is a realistic prospect of defending the claim then it will most likely set the judgment aside. The usual order is for costs in the case, that is, whoever wins in the end gets the costs.

Thanks.

To be clear:

• We should NOT ask for the judgement to be set aside on the basis that the Court Claim Form was never received
• We should ask for the judgement to be set aside on the basis that he had an unfettered right to park at the site through his wife's title over a flat at the site, whose Lease grants the Tenant a right to park one motor car without the need to display a permit or pay a fee for one, and which Lease has primacy over any "right" the PPC has to issue PCNs; that the PPC is well aware of this; and that we didn't contest in court because he didn't receive the Court Form

Is that correct?

[southpaw82]

If the claim form was properly addressed to his last known address then chances are it was lawfully served. The rules on service are quite complex but you’ve said little so far that would indicate that service was not made out. There is no harm in applying on both grounds, save that he would have to address the service issue, which is more nuanced that “I didn’t get it” (though that is a factor to add to the discretionary ground).

[vaiant24]

If the claim form was properly addressed to his last known address then chances are it was lawfully served. The rules on service are quite complex but you’ve said little so far that would indicate that service was not made out. There is no harm in applying on both grounds, save that he would have to address the service issue, which is more nuanced that “I didn’t get it” (though that is a factor to add to the discretionary ground).

It seems likely that it was properly addressed, if sent at all, because the Judgement is. My son-in-law and daughter sometimes don't get post at this address because it goes walkabout, as it's just dumped by the postie in a common area in the block of flats in which they live. In fact because of this my daughter always, most recently just last week, gets anything important delivered to my address, which is wholly secure. Nonetheless the only claim he can make is that he didn't get the Claim Form, post often goes missing, and he would definitely have defended if he had as he has a cast-iron defence.

Sorry to labour this but where does the £255 come in?

[Jlc]

...and he would definitely have defended if he had as he has a cast-iron defence.

I'm no so certain of this - as it's not his lease. Also depends on what the lease says.

Sorry to labour this but where does the £255 come in?

It's the application fee for the set aside.

[vaiant24]

...and he would definitely have defended if he had as he has a cast-iron defence.

I'm no so certain of this - as it's not his lease. Also depends on what the lease says.

I am pretty confident. The full defence is spelt out in another thread I have active on this forum about an identical PCN.

Sorry to labour this but where does the £255 come in?

It's the application fee for the set aside.

So he has to pay that, I can see that. In what circumstances if any might he get the £255 back? Because if the answer is "none" then there's no point in spending £255 non-refundable to try and eventually get set aside a £288 judgement.

[Jlc]

So he has to pay that, I can see that. In what circumstances if any might he get the £255 back? Because if the answer is "none" then there's no point in spending £255 non-refundable to try and eventually get set aside a £288 judgement.

Depends on when the CCJ was issued as after a month it is marked as unsatisfied and gives credit issues.

Even after paying the £255 there's no guarantees a set aside will be granted.

The fee can be claimed but again there's no guarantee the Judge will allow it - depends on the facts and circumstances.

[vaiant24]

So he has to pay that, I can see that. In what circumstances if any might he get the £255 back? Because if the answer is "none" then there's no point in spending £255 non-refundable to try and eventually get set aside a £288 judgement.

Depends on when the CCJ was issued as after a month it is marked as unsatisfied and gives credit issues.

Even after paying the £255 there's no guarantees a set aside will be granted.

The fee can be claimed but again there's no guarantee the Judge will allow it - depends on the facts and circumstances.

Far be it for me to want to be fair to a PPC, but even if we did obtain a set-aside it would be a bit tough on them to have to refund the £255, since it wasn't their fault that we didn't get the Court Claim and therefore didn't defend?

I feel that I'm missing something. Am I ..?

[Jlc]

I feel that I'm missing something. Am I ..?

Sympathy for a PPC? Go immediately to jail, do not pass go, do not collect £100.

[southpaw82]

It is normal to order “costs in the case”, or in other words, whoever eventually loses pays all the costs (subject to the small claims costs rules). This isn’t to say that the court can’t order something different - it has a wide discretion.

[vaiant24]

Good evening, Dear Reader.

We've decided to apply for a set-aside on this.

Recap
My son-in-law received in Aug 2017 a PCN when parked in the block of flats he was living in. Under the terms of the Lease of a flat his wife had title on at the location she was entitled to park there without conditions, and particularly without needing to buy and display a permit. He ignored all communications from the PPC, from several different debt collectors, and from several different lawyers. On 14/02/2020 he received a notification of Judgement for Claimant in the sum of £288. Evidently he missed, or did not receive, a Court Claim form. Had he received it he would certainly have reacted and have contested the Claim in court as his wife's Lease has Primacy.

Process
He completes a form N244 asking for set-aside and at some point pays a £255 fee. On the N244 he completes a witness statement which both a) Explains that he did not receive the Court form, perhaps mentioning a history of post going missing from the shared area of the flats where they now live. and b) Outlining his case for the Lease having Primacy.

The Court may refuse the request to re-hear the case because his excuse of not receiving the form is not credible, or it may re-open the case.

Questions
1. Is the process a outlined above correct?
2. How will the witness statement differ from the defence statement I have submitted for my own identical case, which I am defending in the normal way?
3. Is there the possibility also to contest how a £100 PCN escalated into a £288 total?
4. Is there any value in writing to the "legal firm" named as the claimant, acting on behalf of the PPC, stating that he intends to contest the claim but, while he is supremely confident in his actual case, acknowledges that the chance of the case being heard at all is outwith his control, and offering a lesser amount in Full and Final to save everyone a lot of hassle?

(I've submitted this question on MSN also in case you're active on both, Dear Reader!)

Thanks
V

[southpaw82]

Not really. He needs to submit an N244 and pay the fee, unless he obtains an exemption from the fee. While there is space on the N244 to write evidence I would tend to discourage its use and submit a separate witness statement. The witness statement should cover the fact that no claim form was received, how knowledge of the CCJ came to his attention and when. I would attach a draft defence to the witness statement as an exhibit (you'll see why shortly). He should also include a draft order.

The draft order should:
- Order that the judgment entered in the case on [date] shall be and hereby is set aside, as the Defendant has demonstrated a realistic prospect of defending the claim.
- Order that the draft defence exhibited to the Defendant's witness statement and initialled by the District Judge be entered as the defence in the claim.
- Order costs in the case, save that if the Claimant withdraws the claim then the Claimant shall pay the Defendant's costs in the sum of £255 [this assumes no hearing].

If he doesn't know how a witness statement or order should be set out, come back.

[Jlc]

3 - remember some of that ‘escalation’ are allowed fixed court costs. (But there’s sure to be other elements to challenge if the need arises - what do the signs say?)

4 - why would one want to settle at any price if the defence is so assured? They won’t accept a token amount for sure. If anything he should be wanted them to pay him...