Court Claim Form - Advice on how best to proceed - interesting situation!

Coupon-mad wrote: »

In the County Court Business Centre Northampton

Claim No. Cxxxxxx

In the Matter of:

UKCPM

Claimant

-v-

xxxxx xxxxxxxx

Defendant

_________________________________

Defence and Counterclaim
_________________________________

PRELIMINARY MATTERS:
1.1 The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16.7.5 as there is nothing which specifies the terms, nor how they were allegedly breached. Indeed the PoC are not ‘clear and concise’ as is required by CPR 16.4 1(a).

1.2 Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point: ‘’The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, e.g.‘Money owed £5000’, (2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.’’

1.3 On the 20/09/16 a similar, poorly pleaded parking charge claim from Gladstones was struck out by DJ Cross of St Albans County Court without a hearing, due to their particulars being ‘‘incoherent’’, failing to comply with CPR. 16.4, ‘‘providing no facts that could give rise to any apparent claim in law.’’

1.4 Further, on 27/07/16 DJ Anson sitting at Preston County Court ruled that Gladstones’ PoC were deficient. He ordered the Claimant in that case to file new particulars which they failed to do, so the court confirmed that the claim be struck out.

1.5 Little or no regard is paid by parking operators in residential car parks, to existing lease terms or covenants granting residents parking rights. This Claimant has trespassed in my demised space. The demands demonstrate unwarranted harassment and derogation of grant, which I contend is not a matter that English Courts should support.

1.6 These incoherent PoC display a want of any cause of action and are indicative of a robo-claim, which is vexatious, unreasonable and against the public interest. The Claimant’s Solicitors are run by the same ‘controlling minds’ as their Trade Body and notorious IPC ‘Appeals Service’ and are known to be a serial issuer of generic claims with no scrutiny.

1.7 The individuals in question are John Davies, and William Hurley and such a set-up is incapable of providing any fair means for motorists to challenge parking charges. As such, the Claimant and Gladstones Solicitors do not come to this matter with clean hands and leave recipients of unfair charges with no option other than to pay or face court action.



DEFENCE STATEMENT

2. I am xxxxx xxxxxxxxxx, Defendant in this matter. It is admitted that I am the registered keeper of the vehicle but it is denied that I am liable to the Claimant for any sums at all. I deny liability for the entirety of the claim for the following reasons:

3. At all material times the bay known as ‘Space Number xx xxxxxxx’ was assigned to xxxx xxxxxxxx who has title in this space. It is her demised property and at no point has she authorised the Claimant to charge for the Space, the rights to which are extended to our family and authorised visitors and parking incurs no charge, caveat nor any terms & conditions.

4. This Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimant’s contractual authority to operate there as required by the IPC Code of Practice ‘Operational Requirements’: ‘Establishing Yourself as the ‘Creditor’. 1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of [the POFA] and in any event to establish you as a person who is able to recover parking charges […] it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly...’

5. It is averred that this Claimant has no such contract with the lawful owner of ‘Space Number xx xxxxxxxxx’. This Claimant may argue that they are authorised by the managing agents but I will supply a copy of the proof of title which establishes that we own that Space, as do many of the residents at this site.

6.1 It is averred that, even if this Claimant is entitled to issue charges in some bays, these areas do not and cannot include any owned residents’ spaces, without specific authority being proved to be held, per space, from those individuals.

6.2 We have certainly never authorised this Claimant to sue us for parking in our own demised bay and this Claimant is put to strict proof of their assertions and right to charge and enforce parking in our bay.

6.3 In fact we allege that this Claimant has trespassed in our demised space, harassed the registered keeper for payment and misuse the data supplied by the DVLA because there was no 'reasonable cause' to obtain it, the Claimant being negligent in disregarding the rights of residents in their rush to apply charges randomly in any bay, regardless of who actually owns it or has a pre-existing lawful grant, right or easement to use it.

7. At no time were we warned of nor agreed any ‘parking charge' and nor were any terms on signs - or otherwise - incorporated into any permit ‘contract’. Indeed there were no contractual terms with the permits and no obligations or caveats that could possibly be considered a variation of the lease.

8. Not for one second did we agree to any terms from UKCPM, nor did we believe that the ambiguous signs could apply to us, since terms cannot be randomly added to a lease agreement later without formal variation of that lease. As a resident owners with primacy of contract, my wife and I (and our authorised visitors) rely on an unfettered right to park in our demised property.

9.1 It is averred that these demands are unwarranted harassment and as it seems this Claimant may be an agent of the managing agent in a convoluted chain, this conduct represents a breach of the well-established principle that a grantor shall not derogate from his grant.

9.2 Authorities to support my defence include but are not limited to the (higher court level) Appeal case heard at Oxford County Court by Senior Circuit Judge Charles Harris QC, in Jopson v Homeguard [2016] B9GF0A9E. Similar Small Claim decisions in 2016 include Pace v Mr N C6GF14F0 and Link Parking v Ms P - C7GF50J7. All three cases were brought by Gladstones for parking operators (including the original Jopson claim) and in these cases it was found that the parking company could not override residents’ existing rights by requiring a permit to park and that the signs were of no consequence due to the primacy of contract enjoyed by the Defendants.

10. It is denied that any contravention occurred. It is argued that there is no ‘relevant contract’ nor ‘relevant obligation’, being the pre-requisites that must exist for operators seeking keeper liability under Schedule 4 of the Protection of Freedoms Act 2012 (the POFA).

11. It is denied that the POFA requirement for ‘adequate notice’ of parking charges exists at this location. Even if a Judge is minded to hold that the mixed signs are capable of communicating a parking charge, it is contended that these signs cannot relate to a resident with pre-existing parking rights, nor to any of the residents’ owned spaces.

12. It is denied that the Claimant served the required documents with statutory wording as prescribed under the POFA and as such, there can be no keeper liability in any event.

13. This Claimant has provided no evidence of who parked the car at the material times.

14. The Claimant has at no time provided an explanation how the sum claimed has been calculated, the conduct that gave rise to it or explained the ‘indemnity’ or legal costs which appear to have been plucked from thin air and do not appear on the signage. This is an attempt at double recovery, which the POFA specifically disallows. In addition, CPR 27.14 does not permit these to be recovered in the Small Claims Court.

15. If the driver was considered to infringe on this land, then only the Landowner can pursue a case under the tort of trespass, not this Claimant. Such a matter would be limited to the Landowner claiming a nominal sum, yet we are the rightful leaseholders with title.

16. This car park can be fully distinguished from the details, facts and findings in ParkingEye Limited v Beavis [2015] UKSC 67 (the Beavis case). This location is not a retail site, there is/was no agreed contract between Defendant and Claimant, there is no identified driver and nor are there any comparable 'legitimate interests' nor complex contractual arrangements to disengage the penalty rule. It is averred that these charges are unrecoverable, given the facts of this case.

The facts stated in this defence are true, to the best of my knowledge and belief.


Signed______________________


Dated __________________ 2017




COUNTERCLAIM GOES HERE, SAME DOCUMENT, STRAIGHT UNDERNEATH

See this thread and example counter-claim shown by Southpaw:

http://forums.pepipoo.com/index.php?showtopic=111178

Show us your defence & counter-claim and do amend anything in the above defence that might make no sense/needs adding to, for your version. It is important to know if you ever appealed and if they got your data from the DVLA or from you?

This is fantastic - thanks.

I'm not sure where they got my details from. The car was a hire car, so I did contact UKCPM first, to let them know I was the hirer of the vehicle, before Enterprise Rent A Car would pay it by default, and issue me with an admin fee.

They must have searched and obtained my details from an agency of sorts, as they started writing letters to an old address (my parents!) that I haven't lived at for quite a few years, completely ignoring the return address, and my requests to write to a correct address, in my letters responding to them.

Your defence template, seems to tick most of the boxes for my situation, with some minor adjustment - my only question is, since my wife is the lease holder, do I still us the term "We" ie. in defence points 6.2, or my wife's name? Or does this not really matter since we are married and both reside at the address?

Coupon-mad wrote: »

OK that sounds promising; they obtained false data and used it to your detriment, ignoring your advice as to the correct address data for you as hirer. Maybe if you prefer, don't counter-claim at this stage but instead just defend - then when you win, you can plan a claim with no pressure, to pursue them for data misuse if at that point you feel there are good grounds. No reason why not to serve that revenge cold, with the pressure off.

You could add here:

13. This Claimant has provided no evidence of who parked the car at the material times. The driver has never been identified and whilst I appealed as the hirer of this courtesy vehicle, this Claimant omitted to follow paragraphs 13 and 14 of Schedule 4 of the POFA 2012 and failed to serve any 'Notice to Hirer' in the prescribed way. Absent that document and mandatory enclosures, there can be no 'hirer liability' in law for the conduct of an unidentified driver. A hirer or keeper can never be assumed to be the driver of a courtesy car, lent to the family for general use that week.

I think I would name your wife as the resident, in point #3 where I put xxxxxx xxxxxx and then you can continue to name her and confirm that you are a resident of the same address and 'we' enjoy primacy of contract and rights under the lease held by Mrs Acidmonkey, which will be shown in evidence.

Thank you for the advice - greatly appreciated.

My defence and counter claim below - please do let me know if anything needs changing:

In the County Court Business Centre Northampton
Claim No. XXXXXXXX


In the Matter of:

UKCPM
Claimant

-v-

Mr Acidmonkey
Defendant

_________________________________

Defence and Counterclaim
_________________________________


PRELIMINARY MATTERS:

1.1 The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16.7.5 as there is nothing which specifies the terms, nor how they were allegedly breached. Indeed the PoC are not ‘clear and concise’ as is required by CPR 16.4 1(a).!

1.2 Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point: ‘’The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, e.g.‘Money owed £5000’, (2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.’’

1.3 On the 20/09/16 a similar, poorly pleaded parking charge claim from Gladstones was struck out by DJ Cross of St Albans County Court without a hearing, due to their particulars being ‘‘incoherent’’, failing to comply with CPR. 16.4, ‘‘providing no facts that could give rise to any apparent claim in law.’’!

1.4 Further, on 27/07/16 DJ Anson sitting at Preston County Court ruled that Gladstones’ PoC were deficient. He ordered the Claimant in that case to file new particulars which they failed to do, so the court confirmed that the claim be struck out.

1.5 Little or no regard is paid by parking operators in residential car parks, to existing lease terms or covenants granting residents parking rights. This Claimant has trespassed in Mrs Acidmonkey (Nee Monkey) demised space. The demands demonstrate unwarranted harassment and derogation of grant, which I contend is not a matter that English Courts should support.

1.6 These incoherent PoC display a want of any cause of action and are indicative of a robo-claim, which is vexatious, unreasonable and against the public interest. The Claimant’s Solicitors are run by the same ‘controlling minds’ as their Trade Body and notorious IPC ‘Appeals Service’ and are known to be a serial issuer of generic claims with no scrutiny.!

1.7 The individuals in question are John Davies, and William Hurley and such a set-up is incapable of providing any fair means for motorists to challenge parking charges. As such, the Claimant and Gladstones Solicitors do not come to this matter with clean hands and leave recipients of unfair charges with no option other than to pay or face court action.



DEFENCE STATEMENT

2. I am Mr Acidmonkey, Defendant in this matter. I am the lawful husband of Mrs Acidmonkey (Nee Monkey), who has title in this space, and we both reside at the same address. It is admitted that I was the hirer of vehicle registration XXXXXX on the 26th March 2016, but it is denied that I am liable to the Claimant for any sums at all. I deny liability for the entirety of the claim for the following reasons:!

3. At all material times the bay known as ‘Bay Number 196’ was assigned to Mrs Acidmonkey (Nee Monkey) who has title in this space. I, Mr Acidmonkey as her lawful husband resides at the same address, and we enjoy primacy of contract and rights under the lease held by Mrs Acidmonkey (Nee Monkey), which will be shown in evidence. It is Mrs Acidmonkey (Nee Monkey) demised property and at no point has she authorised the Claimant to charge for the Space, the rights to which are extended to our family and authorised visitors and parking incurs no charge, caveat nor any terms & conditions.

4. This Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimant’s contractual authority to operate there as required by the IPC Code of Practice ‘Operational Requirements’: ‘Establishing Yourself as the ‘Creditor’. 1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of [the POFA] and in any event to establish you as a person who is able to recover parking charges […] it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly...’

5. It is averred that this Claimant has no such contract with the lawful owner of ‘Bay Number 196’. This Claimant may argue that they are authorised by the managing agents but I will supply a copy of the proof of title which establishes that Mrs Acidmonkey (Nee Monkey) owns that Space, as do many of the residents at this site.

6.1 It is averred that, even if this Claimant is entitled to issue charges in some bays, these areas do not and cannot include any owned residents’ spaces, without specific authority being proved to be held, per space, from those individuals.

6.2 Mrs Acidmonkey (Nee Monkey) have certainly never authorised this Claimant to sue us for parking in our own demised bay and this Claimant is put to strict proof of their assertions and right to charge and enforce parking in our bay.

6.3 In fact we allege that this Claimant has trespassed in our demised space, harassed the vehicle hirer for payment, and misused the data supplied by their Credit Agencies because there was no 'reasonable cause' to obtain it, the Claimant being negligent in disregarding the rights of residents in their rush to apply charges randomly in any bay, regardless of who actually owns it or has a pre-existing lawful grant, right or easement to use it.

7. At no time were we warned of nor agreed any ‘parking charge' and nor were any terms on signs - or otherwise - incorporated into any permit ‘contract’. Indeed there were no contractual terms with the permits and no obligations or caveats that could possibly be considered a variation of the lease.

8. Not for one second did Mrs Acidmonkey (Nee Monkey) agree to any terms from UKCPM, nor did we believe that the ambiguous signs could apply to us, since terms cannot be randomly added to a lease agreement later without formal variation of that lease. As a resident owners with primacy of contract, my wife and I (and our authorised visitors) rely on an unfettered right to park in our demised property.

9.1 It is averred that these demands are unwarranted harassment and as it seems this Claimant may be an agent of the managing agent in a convoluted chain, this conduct represents a breach of the well-established principle that a grantor shall not derogate from his grant.

9.2 Authorities to support my defence include but are not limited to the (higher court level) Appeal case heard at Oxford County Court by Senior Circuit Judge Charles Harris QC, in Jopson v Homeguard [2016] B9GF0A9E. Similar Small Claim decisions in 2016 include Pace v Mr N C6GF14F0 and Link Parking v Ms P - C7GF50J7. All three cases were brought by Gladstones for parking operators (including the original Jopson claim) and in these cases it was found that the parking company could not override residents’ existing rights by requiring a permit to park and that the signs were of no consequence due to the primacy of contract enjoyed by the Defendants.

10. It is denied that any contravention occurred. It is argued that there is no ‘relevant contract’ nor ‘relevant obligation’, being the pre-requisites that must exist for operators seeking keeper liability under Schedule 4 of the Protection of Freedoms Act 2012 (the POFA).

11. It is denied that the POFA requirement for ‘adequate notice’ of parking charges exists at this location. Even if a Judge is minded to hold that the mixed signs are capable of communicating a parking charge, it is contended that these signs cannot relate to a resident with pre-existing parking rights, nor to any of the residents’ owned spaces.

12. It is denied that the Claimant served the required documents with statutory wording as prescribed under the POFA and as such, there can be no keeper liability in any event.

13. This Claimant has provided no evidence of who parked the car at the material times. The driver has never been identified and whilst I appealed as the hirer of this courtesy vehicle, this Claimant omitted to follow paragraphs 13 and 14 of Schedule 4 of the POFA 2012 and failed to serve any 'Notice to Hirer' in the prescribed way. Absent that document and mandatory enclosures, there can be no 'hirer liability' in law for the conduct of an unidentified driver.

14. The Claimant has at no time provided an explanation how the sum claimed has been calculated, the conduct that gave rise to it or explained the ‘indemnity’ or legal costs which appear to have been plucked from thin air and do not appear on the signage. This is an attempt at double recovery, which the POFA specifically disallows. In addition, CPR 27.14 does not permit these to be recovered in the Small Claims Court.

15. If the driver was considered to infringe on this land, then only the Landowner can pursue a case under the tort of trespass, not this Claimant. Such a matter would be limited to the Landowner claiming a nominal sum, yet Mrs Acidmonkey (Nee Monkey) are the rightful leaseholders with title.!

16. This car park can be fully distinguished from the details, facts and findings in ParkingEye Limited v Beavis [2015] UKSC 67 (the Beavis case). This location is not a retail site, there is/was no agreed contract between Defendant and Claimant, there is no identified driver and nor are there any comparable 'legitimate interests' nor complex contractual arrangements to disengage the penalty rule. It is averred that these charges are unrecoverable, given the facts of this case.

The facts stated in this defence are true, to the best of my knowledge and belief.


Signed______________________


Dated __________________ 2017




COUNTERCLAIM


In the County Court Business Centre Northampton
Claim No. XXXXXXX


In the Matter of:

UKCPM
Claimant

-v-

Mr Acidmonkey
Defendant


DEFENDANT'S COUNTERCLAIM AGAINST THE CLAIMANT


1. This is the Defendant's counterclaim against the Claimant for the following:

a. Unlawful processing of data by the Claimant causing damage, distress and mental anguish to the Defendant. (A breach of the Data Protection Act in obtaining the Defendants personal data)

b. Harassment by the Claimant causing damage, distress and mental anguish to the Defendant.

c. Trespass of the assigned parking pay number 196. the Claimants use of “parking bay number 196” for their own business purposes without lawful authority to do so.


2. Between 26th March 2016 and 2nd February 2017 the Claimant processed the Defendant's personal data in such a way as to cause the Defendant significant damage and/or substantial distress. The damage and/or distress caused was unwarranted.

3. Briefly, the Defendant was caused significant damage and/or substantial distress because

(a) The Defendant, with no knowledge of the law, or any legal training, had suffered severe mental anguish, due to the Claimants continuous, intimidating and unrelenting hounding, demanding sums, threatening the use of Debt Recovery Agents, of Court Proceedings, to an individual with no understanding of legal matters or his legal rights.

(b) The Claimant had continuously ignored the Defendants letters responding to each of the Claimants demands, and ignored the Defendants requests to be have all correspondence sent to an address that the Defendant resides at. This could be interpreted by some as a deliberate and cynical attempt by the Claimant to continue writing to an incorrect address, in the hope that the Defendant would never see, or be able to respond to any letters within the prescribed legal times, therefore winning this case by default. This added considerable stress and anguish to Defendant, as letters relating to this matter were not delivered to an address where the Defendant resides.

(c) The Claimant has trespassed on the bay known as ‘Bay Number 196’ which is assigned to Mrs Acidmonkey (Nee Monkey) who has title in this space. I, Mr Acidmonkey as her lawful husband resides at the same address, and we enjoy primacy of contract and rights under the lease held by Mrs Acidmonkey (Nee Monkey)

4. Briefly, the damage/and or distress was unwarranted because the Claimant had no good reason to process the data in the way that it did.

5. On 26th March 2016, the Defendant sent the Claimant a letter objecting to the processing of their personal data, indicating how the processing of their personal data was causing significant damage and/or substantial distress, and asking the Claimant to cease processing their data in this manner.

6. In the period after receipt of this letter the Claimant continued to process the Defendant's personal data in such a way as to cause significant damage and/or substantial distress.

7. Breaching the provisions of the Data Protection Act 1998 gives rise to liability in tort - Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311.

And the Defendant claims:

(a) damages, in such sums as the Court may find; and

(b) interest, pursuant to s. 69 of the County Courts Act 1984, at such rates and for such periods on the sums found due to the Defendant as the Court may think fit.

The Defendant believes the facts stated in this counterclaim are true.

Signed by the Defendant:



Date: 7th February 2016

Coupon-mad wrote: »

Oh, and change the date to Feb 2017!

Oh dear - goodness 2016 has been and gone!

I've increased the claim for breach of data to £750, removed the "nominal amount of £1" for trespass, and replaced that again with £750. I don't think both figures are excessive, The judge will either agree to those amounts, or adjust downwards!

I've filed the AoS this evening, giving me 14 extra days to respond.

Is the next step for me to send the defence and counterclaim form, along with my defence and counterclaim to the court? Also where/when do I pay the fee to start my counterclaim?