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  • FIRST POST
    • starnold444
    • By starnold444 15th Nov 17, 2:24 PM
    • 31Posts
    • 3Thanks
    starnold444
    Notice of Proposed Allocation
    • #1
    • 15th Nov 17, 2:24 PM
    Notice of Proposed Allocation 15th Nov 17 at 2:24 PM
    We have receive a Notice of Proposed Allocation to the Small Claims Track, how do we respond in the box where it says do you agree?

    Below was the letter we submitted as part of our original defence to the original Claim form.

    I have read the newbies post 2 but it doesn't explain how to respond to the Notice of Proposed Allocation?

    ---------------------------------------------------------------------------------------------------------------

    I deny I am liable for the entirety of the claim for each of the following reasons:

    1. The Claim Form issued on the 11th October 2017 by Civil Enforcement Limited was not
    correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited (Claimant’s Legal Representative)”.

    2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

    b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

    c) The Schedule of information is sparse of detailed information.

    d) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs.

    e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

    f) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

    (i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    (ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
    (iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
    (iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
    (v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
    (vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
    (vii) If Interest charges are being claimed, the basis on which this is being claimed

    g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

    3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.!

    Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £250.22 for outstanding debt and damages.

    4. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

    5. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

    a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.

    b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.

    c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

    (i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
    (ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
    (iii) It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
    (iv) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    (v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

    d) BPA CoP breaches - this distinguishes this case from the Beavis case:!
    (i) the signs were not compliant in terms of the!font!size, lighting or positioning.
    (ii) the sum pursued exceeds £100.
    (iii) there is / was no compliant landowner contract.

    6. No standing - this distinguishes this case from the Beavis case:
    It is believed Civil Enforcement do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

    7. No legitimate interest - this distinguishes this case from the Beavis case:
    This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

    8. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.
    9. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

    (a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 11th October 2017.

    (b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.
    ---------------------------------------------------------------------------------------------------------------
Page 3
    • ixworth
    • By ixworth 23rd Nov 17, 5:42 PM
    • 44 Posts
    • 14 Thanks
    ixworth
    I wasn't sure about the last paragraph myself and have now removed it.


    My final draft to be posted next week to CEL and the court has been posted back on my own thread. http://forums.moneysavingexpert.com/showpost.php?p=73456685&postcount=50.


    Thanks to all for your help.
    • starnold444
    • By starnold444 5th Dec 17, 1:24 PM
    • 31 Posts
    • 3 Thanks
    starnold444
    I have just received the Notice of Transfer Proceedings to tell me it has been sent to my local court and says to wait for the Judges directions.

    I wanted to check if there is any value in calling the court to make sure they have my letters and make sure that it is seen by the Judge? Or sending another copy of the letter to my local court to again make sure it gets seen.

    The court is only 10 mins from my house so I could even drop off the letter by hand.
    • Loadsofchildren123
    • By Loadsofchildren123 5th Dec 17, 2:44 PM
    • 1,905 Posts
    • 3,129 Thanks
    Loadsofchildren123
    You could phone and check that your letter is still attached to your DQ. It may be quicker to drop in, if it's convenient, because it can be difficult to get through by phone.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • starnold444
    • By starnold444 5th Dec 17, 3:29 PM
    • 31 Posts
    • 3 Thanks
    starnold444
    Perfect thanks will pop in this week to double check
    • Loadsofchildren123
    • By Loadsofchildren123 5th Dec 17, 3:33 PM
    • 1,905 Posts
    • 3,129 Thanks
    Loadsofchildren123
    court counters close at either 2 or 2.30 so you need to go before that
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • starnold444
    • By starnold444 18th Jan 18, 3:25 PM
    • 31 Posts
    • 3 Thanks
    starnold444
    We have just had a letter from the court to say that they don't have a copy of our defence. Wanted to check what the best course of action was from here?
    I previously submitted our defence before the PoC and then followed up with a letter to provide to the court about them backdating the PoC etc.
    Shall I send all communication to the court or just the letter about them not following procedure around PoC and ask them to throw it out?
    • Quentin
    • By Quentin 18th Jan 18, 3:29 PM
    • 34,557 Posts
    • 18,542 Thanks
    Quentin
    Send them a copy of all your defence together with any proof you have you sent it in time previously
    • Loadsofchildren123
    • By Loadsofchildren123 18th Jan 18, 3:42 PM
    • 1,905 Posts
    • 3,129 Thanks
    Loadsofchildren123
    they must have received your original defence, otherwise they would not have sent out the DQ.


    But yes, send it in again. No harm sending in that letter as well and asking them to action it.
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • starnold444
    • By starnold444 18th Jan 18, 6:26 PM
    • 31 Posts
    • 3 Thanks
    starnold444
    Thanks. I did go to my local court who said they had everything before Xmas but said it had been sent to a central court for processing.

    You would have thought they would have had it but just got the letter through. Will re-print everything and resend it with that last letter as a cover.
    • starnold444
    • By starnold444 16th Feb 18, 1:15 PM
    • 31 Posts
    • 3 Thanks
    starnold444
    Got a letter from the Courts saying "It is ordered that, defendant seeks to strike out claim by letter dated xxxx. Defendant must apply using the correct form N244"?
    • Loadsofchildren123
    • By Loadsofchildren123 16th Feb 18, 3:31 PM
    • 1,905 Posts
    • 3,129 Thanks
    Loadsofchildren123
    If you make an application to the court, technically you have to make it on paper, on the Form N244 and then you pay a fee (£100 if you say no hearing required, £255 if you want a hearing).

    However, the court rules contain the following provisions which you can rely on to argue that a formal application is unnecessary:

    1. The court has the power to exercise its inherent powers, of its own initiative, as part of its duty of active case management under CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1, namely to summarily dispose of issues which do not need full investigation and trial. The court!!!8217;s powers include striking out a claim (or part of it) under CPR Rule 3.4 and Summary Judgment under CPR Rule 24.

    2. The court!!!8217;s power to make such orders of its own volition, without a formal application, are contained in CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1.

    3. If the court is not minded to make an order of its own volition, then the court has the power to treat the letter from you as an application rather than asking you to issue a Notice of Application !!!8211; the power to do this is contained in CPR Part 23.3(2)(b) which provides specifically that the court may dispense with the requirement for an application notice.

    You could write to the court saying all of this to have another go. Nothing lost, nothing gained. They can only say no.

    If they say no then you either issue the application or just leave it and get on with defending the claim.

    The court will sometimes make the order exercising these powers, sometimes it won't.

    So you write something like:

    Dear Sirs

    I refer to your letter dated x in which you have asked me to issue a formal N244 application.

    This is a small claim with a value of £x. The fee for a N244 is £255, which is plainly out of proportion. The court does in fact have the power to make this order of its own volition, or by treating my letter as the application, without requiring me to issue a formal application.

    These powers are contained in the following:
    1. Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 provide that the court has inherent case management powers by which it can summarily dispose of issues which do not need full investigation and trial. The court!!!8217;s powers include striking out a claim (or part of it) under CPR Rule 3.4 .

    2. If the court is not willing to exercise its inherent powers under paragraph 1 above, then under CPR Part 23.3(2)(b) the court may dispense with the requirement for an application notice and may treat my letter as an application.

    I ask that the court exercises its powers and dispenses with the requirement for me to file a form N244 and makes the order sought in my letter of x date (further copy enclosed for convenience).
    Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.
    • starnold444
    • By starnold444 16th Feb 18, 3:33 PM
    • 31 Posts
    • 3 Thanks
    starnold444
    Thanks mate will give that a go, about to go on holiday so will get it done before I go :-)
    • DoaM
    • By DoaM 16th Feb 18, 3:46 PM
    • 4,013 Posts
    • 4,056 Thanks
    DoaM
    So you write something like:

    Dear Sirs

    I refer to your letter dated x in which you have asked me to issue a formal N244 application.

    This is a small claim with a value of £x. The fee for a N244 is £255, which is plainly out of proportion. The court does in fact have the power to make this order of its own volition, or by treating my letter as the application, without requiring me to issue a formal application.

    These powers are contained in the following:
    1. Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 provide that the court has inherent case management powers by which it can summarily dispose of issues which do not need full investigation and trial. The court's powers include striking out a claim (or part of it) under CPR Rule 3.4 .

    2. If the court is not willing to exercise its inherent powers under paragraph 1 above, then under CPR Part 23.3(2)(b) the court may dispense with the requirement for an application notice and may treat my letter as an application.

    I ask that the court exercises its powers and dispenses with the requirement for me to file a form N244 and makes the order sought in my letter of x date (further copy enclosed for convenience).
    Originally posted by Loadsofchildren123
    Quoted to remove "smart" punctuation.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • Coupon-mad
    • By Coupon-mad 16th Feb 18, 5:15 PM
    • 54,103 Posts
    • 67,767 Thanks
    Coupon-mad
    Thanks mate will give that a go, about to go on holiday so will get it done before I go :-)
    Originally posted by starnold444
    LoadsofChildren123 is a practising solicitor, and a lady.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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