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Private ticket - Set Aside Judgement denied, now what?
jkracing
post Mon, 15 Jul 2019 - 11:19
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Hi all,

Hoping for some urgent help here as my girlfriend has seemingly been royally screwed by NCP.

Bit of back story - She had an interview back in March 2018, she parked in a pay and display car park, bought her ticket and went on her way. The interview significantly over-ran and she was 22 minutes late back to the car and found a parking ticket.

She received two letters from NCP to her parents address where her car and driving license were both registered and she lived at the time, then had no further correspondence from them. She did not respond to either letter so we though there was nothing to worry about.

Fast forward to May of this year, she checks her credit file and sees a CCJ in her name from a case that was heard in court in November 2018! When we look in to this, it turns out that BW Legal had sent all of the documentation to my (not her) previous address, which I had moved out of last May. She had never lived there and her car had never been registered there.

So we made an application to get the judgement set aside on the basis of her not knowing anything about the case being heard and not having a chance to defend herself. This case was heard last week and, to my amazement, the judge found in favour of BW Legal and NCP, despite them having no valid reason for them using an address that was different to the one registered. The reason for the judgement given was that she didn't respond to the automated voicemails left by BW legal on her phone. They gave no details and she had no idea what they were contacting her about.

Is there anything we can do here now? It just feels so wrong that she is being billed £700 for an overstay of 22 minutes when BW Legal have seemingly deliberately used an incorrect address. As you can imagine, she's very upset by the whole thing and this CCJ will scupper our chances of getting our first house together next year.

Thanks everyone
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post Mon, 15 Jul 2019 - 11:19
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Jlc
post Mon, 15 Jul 2019 - 11:41
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This sounds particularly harsh.

However, the Judge does not have to agree to a set aside. We do not generally recommend 'ignoring' private tickets and the Judge may have taken the view that the claimant had taken reasonable steps to make contact - even though the court paperwork appears to have been clearly sent to an 'unconnected' address.

NCP/BWL appear to have performed a 'trace' of some sort when they did not receive a reply before commencing proceedings. This may have involved searches on insurance registers that managed to link to your address?

The Judge may have also formed the view that there was not a reasonable prospect of success either but there were some potential lines of defence including frustration of contract.

It's unlikely there's been any misuse of personal information but hard to comment without details. Subject Access Requests under the Data Protection Act (GDPR) could be submitted to try and find out how the personal data was processed.

Was an uncontested set aside ever considered? (Or only contested? Did NCP/BWL attend the set aside hearing?)

AIUI there is no other 'appeal' to this and it must be paid. Even a 'satisfied' CCJ will cause credit issues.

This post has been edited by Jlc: Mon, 15 Jul 2019 - 11:43


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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nosferatu1001
post Mon, 15 Jul 2019 - 11:48
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Did you send a defence in as well, or did you entirely rely upon not knowing about the claim?

THere is no otehr avenue of appeal. Pay or not, the CCJ will remain for 6 years.
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jkracing
post Mon, 15 Jul 2019 - 11:53
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Thank you for coming back to me so quickly.

They told us that they had found the address by running a credit search - but the paperwork they provided at court to support this specifically indicated that it was unlikely that she lived at this address. In any case, they could easily have tried to make contact at both addresses if there was a concern?

The only link that I could see would be that we now have a joint bank account at our new joint home, so there may be some tenuous link to my past address for some reason.

BW Legal sent a representative to the hearing.

Clearly we would not have ignored court paperwork over a £50 parking fine! The idea of paying £700 for a £1 parking ticket is sickening and we really can't afford it.


Unfortunately we weren't aware that it was essential to also send a defence of the ticket - Neither of us had been through this before, but I had been given the advice to get it set aside based on non-receipt due to address error. To be honest, there was no defence of the original ticket, yes, it was harsh to get a ticket for an accidental overstay, but she was in the car park as they stated.

This post has been edited by jkracing: Mon, 15 Jul 2019 - 11:57
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The Rookie
post Mon, 15 Jul 2019 - 11:57
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You haven’t answered whether a defence was included (beyond claim sent to the wrong address), the judge needs to be satisfied you had a realistic prospect of winning in court, if they were not they can rightly reject the application (noting the logical disconnect that it leaves you somewhat unjustifiably with a CCJ).


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jkracing
post Mon, 15 Jul 2019 - 12:00
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Apologies, I've amended my previous comment.
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nosferatu1001
post Mon, 15 Jul 2019 - 12:12
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Of course there was a bloody defence!
You always defned on signs, amount is a penalty not saved by Beavis, no landholder authority and No POFA compliance so no Keeper liability. Thats everywhere.
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jkracing
post Mon, 15 Jul 2019 - 12:24
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Indeed - but the issue was that I wasn't aware that we had to make a defence to the initial ticket at the set aside hearing. Had we have been aware of the original proceedings then we would have looked in to this further and made the case.

The girlfriend was, of course, in the set aside hearing alone and was very nervous. Clearly we could have done better in our preparation for it, but we just didn't know.
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nosferatu1001
post Mon, 15 Jul 2019 - 12:33
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By making a defence you give the court another option for the set aside.
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Jlc
post Mon, 15 Jul 2019 - 13:31
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QUOTE (jkracing @ Mon, 15 Jul 2019 - 12:53) *
They told us that they had found the address by running a credit search - but the paperwork they provided at court to support this specifically indicated that it was unlikely that she lived at this address. In any case, they could easily have tried to make contact at both addresses if there was a concern?

This nails it for me. The phone calls could have been any speculative call that we get nowadays!

QUOTE (jkracing @ Mon, 15 Jul 2019 - 12:53) *
BW Legal sent a representative to the hearing.

Wow, who picked up their costs?

QUOTE (jkracing @ Mon, 15 Jul 2019 - 12:53) *
Clearly we would not have ignored court paperwork over a £50 parking fine! The idea of paying £700 for a £1 parking ticket is sickening and we really can't afford it.

Yes, it is sickening - try your MP to at least put some pressure on the appropriate channels.

But unfortunately it's got to be paid or they have options including getting a High Court warrant.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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jkracing
post Mon, 15 Jul 2019 - 13:58
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Jlc - That's exactly why she didn't respond. She had no idea of what the calls were regarding or who BW Legal were. Unfortunately she didn't tell me she was getting the calls, but rather blocked the caller's number believing it was just a spam caller.

We have been billed for the costs of their representative attending court - making up a large portion of the £700 unfortunately from what was originally just a £50 parking fine.

Thanks for the help everyone - Looks like we're just going to have to put this down to being an expensive lesson learned. That'll teach me for believing the courts will stand up for what is "right" and give an innocent person a chance.

This post has been edited by jkracing: Mon, 15 Jul 2019 - 14:01
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nosferatu1001
post Mon, 15 Jul 2019 - 14:07
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They do, but its a legal process and you have to be FULLY prepared.
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Jlc
post Mon, 15 Jul 2019 - 15:17
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Hindsight is a wonderful thing. This is at the extreme end of outcomes - definitely why I said to contact your MP as a 'mere' parking charge will have a profound impact on obtaining a mortgage.

Just for information, it would have probably been better to have agreed an uncontested set aside (I still can't believe they made so much effort in contesting it) where you agree to pay the judgment (around £150-250) if they agree to have it set aside. Everyone is a winner as they get paid and the defendant repairs their credit record.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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anon45
post Tue, 16 Jul 2019 - 05:55
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It is possible to appeal a refusal of set aside to a circuit judge, but whether it is 'worth it' is an open question, notwithstanding that the reason apparently given by the judge for refusing the set-aside is both perverse and ludicrous.

That said, if the CCJ, even if satisfied, will ruin a mortgage application, then it might be necessary to attempt an appeal regardless. This would start with applying to a circuit judge for permission to appeal, (which may not necessarily be granted), and the OP would need to pay an appeal fee, and, if permission to appeal is granted, a further amount for the transcript of the original set-aside hearing.

On the other hand, overturning a finding of fact (presumably that the court papers were indeed served on the OP) on appeal is extremely difficult, however perverse that finding is, and, if the OP, unwisely, admitted to having no defence to the underlying charge, then I'm not sure it's worth even a long-shot appeal.

A QC has noted the human rights implications in refusing set-asides, ruining credit records, and denying defendants a chance to conduct a proper defence, but this is of no help to the OP.

This post has been edited by anon45: Tue, 16 Jul 2019 - 06:22
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jkracing
post Tue, 16 Jul 2019 - 07:22
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Thanks anon45 - I should add and clarify here, she did not say to the Judge that she did not have a defence, she just didn't include one in her initial application to set aside. I should also add that he accepted that she did not receive the documentation. His judgement was based on the fact that she did not answer the phone to an unknown phone number.

The judge reduced her to tears in the hearing - he was rude, sarcastic and generally extremely unpleasant.

The whole situation is obscene - How the Judge can allow them to charge more than £700 for a single parking offence just blows my mind. There is no doubt in my mind what so ever that BW Legal have been deliberately deceptive and deliberately sent the documents to the wrong address.

We have paid the fine to avoid further action, but I will not be letting this go. BW Legal need to pay for their actions here.

This post has been edited by jkracing: Tue, 16 Jul 2019 - 07:23
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The Rookie
post Tue, 16 Jul 2019 - 10:34
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QUOTE (Jlc @ Mon, 15 Jul 2019 - 16:17) *
I still can't believe they made so much effort in contesting it

I can, they knew they would have a strong case (to win) and also a strong case for costs


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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anon45
post Tue, 16 Jul 2019 - 23:03
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QUOTE (jkracing @ Tue, 16 Jul 2019 - 08:22) *
Thanks anon45 - I should add and clarify here, she did not say to the Judge that she did not have a defence, she just didn't include one in her initial application to set aside. I should also add that he accepted that she did not receive the documentation. His judgement was based on the fact that she did not answer the phone to an unknown phone number.

The judge reduced her to tears in the hearing - he was rude, sarcastic and generally extremely unpleasant.

The whole situation is obscene - How the Judge can allow them to charge more than £700 for a single parking offence just blows my mind. There is no doubt in my mind what so ever that BW Legal have been deliberately deceptive and deliberately sent the documents to the wrong address.

We have paid the fine to avoid further action, but I will not be letting this go. BW Legal need to pay for their actions here.

BW Legal, perhaps above all other PPCs, are notorious for sending court papers to the wrong address. One may speculate as to the reasons for this. I doubt very much that it actually cost them anything approaching £700 to send their in-house representative along to the hearing.

Unfortunately, the only way to make them pay for their actions (and for your girlfriend to clean her credit record) would be to successfully appeal the refusal of set-aside.

Indeed, re-reading the recent post, it seems that the judge accepted that she didn't receive the court papers at all. If the judge also accepted that the court papers were never validly served (there is a subtle distinction) because BW Legal sent the court papers to the wrong address, then he was obliged under the Civil Procedure Rules to grant the set-aside, and, in these circumstances, his refusal to grant the set-aside would be an error in law that could be appealed.

Even if the set-aside was discretionary, there might be an argument that the judge misdirected himself, and abused his discretion, in placing such extraordinary weight on a wholly irrelevant factor (the phone calls) in coming to his (perverse) decision.

Had your girlfriend appealed, it would have been possible to apply to the circuit judge to stay enforcement of the CCJ pending the hearing of the appeal. Even now, paying does not necessarily preclude appealing, but may make it more difficult to get her money back in practice.

This post has been edited by anon45: Wed, 17 Jul 2019 - 05:52
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