County Court Claim Form received : Claimant is SIP

Coupon-mad

OK, glad you have that appeal letter and part of your evidence; means you just need a simple bullet point along the lines 'The Claimant's Notices are in breach of the BPA Code of Practice - which is in itself a breach of the CPUTR 2008 by claiming to be regulated by a Code which is then not adhered to. The appellant has pointed out some breaches of the BPA Code to the Claimant but was ignored.'

And then all the usual defence bullet points, which are shown in the various links I have already given. It is always best if an appellent writes their own defence and understands it, hence why I only provide links to enable that.

SpaceCowboy55

I have a Defence pack ( letter + supporting files showing correspondence ) prepared for the Court Claim - just waiting to see whether I receive the "evidence" as stated in the POC .

Is anyone willing to review it for me please ? ( I would prefer to send by PM or email as the Claimant may see it ( as something posted in a forum is one of their items of evidence )

SpaceCowboy55

I want to get the court defence submitted this week : as per my request above is anyone able to help . The claimant hasn't sent me the detailed particulars as referred to at bottom of POC so I will add that in. I am also thinking or re-ordering what is in there so that request to dismiss is first on the grounds the claimant has no chance of winning.

Any thoughts / comments please before I commit myself.

SpaceCowboy55

SpaceCowboy55 wrote: »

I want to get the court defence submitted this week : as per my request above is anyone able to help . The claimant hasn't sent me the detailed particulars as referred to at bottom of POC so I will add that in. I am also thinking or re-ordering what is in there so that request to dismiss is first on the grounds the claimant has no chance of winning.

Any thoughts / comments please before I commit myself.

This is the defence I have currently drafted :

[FONT=&quot]1. The Defendant denies he is indebted to the Claimant in any way.[/FONT]

[FONT=&quot]2. Upon the Claimant accepting that the Defendant should be afforded the opportunity of challenging the parking charge by means of an appeal to the facility provided by London Councils Ltd trading as POPLA (Parking On Private Land Appeals Service) and the Court being satisfied that this facility constitutes an appropriate form of alternative dispute resolution procedure for the purposes of CPR 1.4(2)(e) it is requested that the Court makes an order of its own initiative:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]1. There be a stay of the proceedings to enable POPLA to adjudicate upon the appeal according to its merits.

2. There be permission to either party to apply to have the matter dismissed or restored following the POPLA adjudication; the claim to stand dismissed if no application be made within six months

3. No order as to costs.[/FONT]

[FONT=&quot]3. It is submitted that the Claimant is obliged to engage in the POPLA service as a condition of its membership of the trade body The British Parking Association Ltd. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]4. It has come to the Defendant's attention that other courts are making such orders as to save the court system time and cost. Please see enclosed a recent order made in the Croydon County Court. ( See refertopopla.jpg file)[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]There are a number of further points I submit as defence :[/FONT]
[FONT=&quot] [/FONT]
1. [FONT=&quot]I was not the driver and Claimant has not satisfied the conditions necessary to pursue the keeper under Schedule 4 PoFA. I hereby Request that the court strike the claim out as the claimant has no real prospect of succeeding on the claim. (CPR Part 24.2) ( this is explained in more detail in my letter of 29th June to SIP which they did not acknowledge. I sent this letter to 2 different addresses provided on their letter ). This letter is in file SIP 2nd Response to final. Furthermore in the Particulars of Claim ( POC ) SIP state they have had no further correspondence since their decision letter to uphold the PCN dated 4th June., and this letter from me was sent on 29th June .[/FONT]
[FONT=&quot] [/FONT]
2. [FONT=&quot]Reference in the POC to a final letter before court application on 04/09/2013 : ( Letter sent by SIP before the Court Claim included as file SIP LBA 04092013.pdf ) . This is non-compliant as a Letter Before Claim as it does not refer to the “Pre-Action Direction “ :as prescribed in “ Annex A Section 2.3Unless the defendant is known to be legally represented the letter should –[/FONT]
1. [FONT=&quot](1) refer the defendant to this Practice Direction and in particular draw attention to paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction; “[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Furthermore some comments against what the letter should contain from Section 2.1 of the Practice Direction:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]2.1[/FONT][FONT=&quot] The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –[/FONT]
[FONT=&quot](1) the claimant’s full name and address; Name spelt incorrectly[/FONT]
[FONT=&quot](2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable); [/FONT]
[FONT=&quot] This is not stated[/FONT]
[FONT=&quot](3) a clear summary of the facts on which the claim is based; This is not stated[/FONT]
[FONT=&quot](4) what the claimant wants from the defendant; and Other than a payment of £100 this is not stated[/FONT]
[FONT=&quot](5) if financial loss is claimed, an explanation of how the amount has been calculated. This is not stated[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]3. The Claimant has not provided any evidence as to how or why the sum of £100 is a [/FONT]
[FONT=&quot]genuine pre- estimate of loss ( NEEDS MORE ADDING HERE re OTHER CASES )[/FONT]
[FONT=&quot] [/FONT]
4. [FONT=&quot]British Parking Association Ltd code of practice v3 secn 7.1 requires the Claimant to have a contract with the landowner : The Claimant has not provided any evidence and more specifically in secn. 7.2 f [/FONT]. [FONT=&quot]whether or not the landowner authorises you to take legal action to recover charges due from drivers charged for unauthorised parking.[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
The Claimant's Notices are in breach of the BPA Code of Practice - which is in itself a breach of the CPUTR 2008 by claiming to be regulated by a Code which is then not adhered to. The appellant has pointed out some breaches of the BPA Code to the Claimant but was ignored.[FONT=&quot][/FONT]
[FONT=&quot]May I respectfully request that if the decision is made to progress with a Court hearing that this is transferred to Manchester.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]

spacey2012

The BPA code of practice is just that a code, it is neither primary legalisation or covered by case law, matters of discipline of breeches of this "code" are a matter between the BPA and it's members, I can not see a Judge entering in to any code of conduct with regard to making a judgement, they are far more likely to be pursued by actual case law than some code of conduct drawn up by laymen from a trade club.

I feel you need to re-think, use case law and quote case law and previous decisions where case law has been successfully used and accepted as a defence to weigh on the judge.
I can see a judge taking as much notice of the BPA "code of practice" as the cake makers guild guide on Chocolate.

Dunlop Pneumatic Tyre Co. Ltd. v New Garage & Motor Co. Ltd. [1915] A.C. 79 at 86. is a good start.

spacey2012

Make a pathway plan for a defence:

Rights of Audience challenge : does the claimant and representative here today hold neccasary rights of audience to act in litigation and does any contract produced convey the right to bring litigation on behalf of their "client", does the client hold sufficient proprietary rights to litigate or offer consideration of contract .

If the judge is not satisfied they do, it goes out before they start.

Then if they get over hurdle one, move on to the contract, where is the contract ? have they got one with them today, does it offer any consideration are the terms sufficient to convey a contract, does the judge accept a contract can be formed with someone who has never even read a sign, explore the contract, was it conveyed correctly, does it convey rights of litigation on the land, does it have any clauses which were not made clear on the signs they put up, cover this again ?

Next Hurdle : what are they claiming, is it a loss, is it a penalty, use case law as listed above to demonstrate a penalty is not enforceable, if they claim it is a loss, demonstrate that none of the items they claim as a loss, staff wages, stationary, signs would have been altered or increased or dismissed if the vehicle had never visited or visited a hundred times as they are operator costs and tax deductible expenses, can they produce certified accounts to suggest otherwise ?

Question the foundation evidence, how can they prove the vehicle was present, are any ANPR systems VCA compliant, or has anyone who wrote a ticket sworn affidavit as to its factual status or made a witness statement ?
If not why not ?

Re-iterate the case law that what they are claiming is in fact a penalty for which they can not account.

Then as a last straw, think about BPA guidelines and pre-court protocol as a simple apology often dispenses with that argument.

You have a lot of research to do, but follow the plan above and I am sure others can add more, but please do not go in to a court waving the rules of a trade organisation about as law without another plan.

SpaceCowboy55

spacey2012 wrote: »

Make a pathway plan for a defence:

Rights of Audience challenge : does the claimant and representative here today hold neccasary rights of audience to act in litigation and does any contract produced convey the right to bring litigation on behalf of their "client", does the client hold sufficient proprietary rights to litigate or offer consideration of contract .

If the judge is not satisfied they do, it goes out before they start.

Then if they get over hurdle one, move on to the contract, where is the contract ? have they got one with them today, does it offer any consideration are the terms sufficient to convey a contract, does the judge accept a contract can be formed with someone who has never even read a sign, explore the contract, was it conveyed correctly, does it convey rights of litigation on the land, does it have any clauses which were not made clear on the signs they put up, cover this again ?

Next Hurdle : what are they claiming, is it a loss, is it a penalty, use case law as listed above to demonstrate a penalty is not enforceable, if they claim it is a loss, demonstrate that none of the items they claim as a loss, staff wages, stationary, signs would have been altered or increased or dismissed if the vehicle had never visited or visited a hundred times as they are operator costs and tax deductible expenses, can they produce certified accounts to suggest otherwise ?

Question the foundation evidence, how can they prove the vehicle was present, are any ANPR systems VCA compliant, or has anyone who wrote a ticket sworn affidavit as to its factual status or made a witness statement ?
If not why not ?

Re-iterate the case law that what they are claiming is in fact a penalty for which they can not account.

Then as a last straw, think about BPA guidelines and pre-court protocol as a simple apology often dispenses with that argument.

You have a lot of research to do, but follow the plan above and I am sure others can add more, but please do not go in to a court waving the rules of a trade organisation about as law without another plan.

Wow : that feels daunting ( and helpfull ) but some of the legwork has been done already ( I have been reading forum info for a while and getting more confused ) : Do I need to do all of that when I return the MCOL form or is that needed if I end up in court please?

spacey2012

Your defence has to be personalised, so nobody can really write your exact defence, it needs a plan of attack that fits how the proceedings are conducted and what you are to present, but my opinion is the BPA handbook is a not going to do you much good, you are going to law court, not a meeting of a BPA disciplinary panel.
Judges are there to use the law and administer the law.

Fit yours around the plan above and be prepared to raise the points in a polite, softly spoken voice and question the representative from the other side when they have made the case to establish facts.
The Penalty issue is one they rarely get around if you have the follow up point about running costs presented as a loss.
MCOL will have instructions on how to file and when with what, it is best to go in very hard with all the points above well covered.
A good strong defence may make them throw the towel as they are hoping for a default case.
I have beaten several parking companies using the above, most won't even try me now, one parking company office worker passing themselves off was very nearly jailed for not having right of audience in Plymouth in 2011, so always raise this first then move onward with contracts and penalties, finish on pre-court protocols or the lack of as a demonstration of the lack of respect for the court, this also leaves it a bit late for them to apologise having just sat and laid it down.

Coupon-mad

Some other court cases here (not precedents though, as only small claims) but worth mentioning to the judge if very similar to your own case:

http://forums.moneysavingexpert.com/showpost.php?p=62971894&postcount=65

HTH

spacey2012

Indeed presenting cases where the penalty issue has been upheld in county court recently will help convince a judge that is the general course been followed in other hearings.
Parking charges are penalties and all parking firms have great difficulty in disproving this, those who have lost this point have not had follow up arguments ready as to those costs not been effected by the driver as they are fixed to the business.