Court Claim Received

Marktheshark

Put all irons in to the fire, including the equality acts, also if you feel anyone bogus is involved in paper work, state in the defence you intend to seek application for such persons to attend court for questioning.
Then do so, there is a form for this in the download section of legal forms
If this was done with all the fictitious witnesses, what are they going to do when they can not be produced at court ?
Might add a bit on the expenses risk, but if you win you wont be paying them.
If its Mr Shwarts, then I personally think they should be asked to produce this alleged solicitor they employ at court for questioning.

Marktheshark

Just a point do CO-OP still employ CEL ?

Coupon-mad

No they have tried to get rid but at some sites I think they are still stuck with ongoing contracts which won't be renewed. Utter idiots, just like Somerfield were with PE.

bluetoffee1878

Thanks coupon mad. This is what I have put together so far all comments, critique and amendments gratefully received
Sorry it's a bit of a long post

DEFENCE STATEMENT


Initial Defence to Particulars of Claim

1. It is denied that the Claimant entered into a contract with the Defendant. Under civil law, any contract must be formed by offer, consideration both ways and acceptance. The Claimant is a third party agent of a private parking company (Civil Enforcement Ltd) who was simply contracted by the landowner to provide car-park management services. The claimant therefore is not capable of entering into a contract with the Defendant on its own account. Accordingly, it is denied that the Claimant has any standing to bring this claim in their own name.

2. The defendant did not receive a letter before claim which does not comply with practice directions.

3. Part of the alleged debt (87.5%) was assigned to Debt Enforcement & Action Ltd by Civil Enforcement Ltd. The claimant therefore cannot claim for the whole alleged amount, or possibly any since all parties to the alleged debt must be listed as claimants.

4. The N1 claim form has been signed off by a Mr. M.Schwarts (Solicitor); the SRA have confirmed that this person does not appear to be listed as a solicitor on the SRA roll. It is a criminal offence for somebody to call themselves a solicitor or act as a solicitor if they are not on the roll of solicitors. It is therefore denied that the £50 solicitor’s fee can be claimed. Also the full claim is denied as the claim has not been signed by either the landowner or the landowner’s solicitor. The claimant has sent a copy of the claim forms to the SRA who have replied via email that said forms have been forwarded to their Fraud Intelligence Unit for Investigation.

5. The Defendant denies the accuracy of such ANPR equipment in that the ‘time stamping’ of such equipment is controlled via the internet to remote servers where a delay would exist.

6. The claim does not differentiate between a breach, trespass or a contractual charge so therefore does not disclose what conduct is complained about, therefore discloses no cause of action. If the claim is for a breach of contract or trespass then the claimant may only claim for their losses due to said breach. If the claim is for a contractual charge then the defendant submits that it is a contractual charge disguised as a penalty.


7. The claimant’s notices do not create any contractual relationship between the claimant and motorists using the car park.

8. The car park is a free car park and as such there can be no loss suffered by either the claimant or the landowner as a result of any alleged overstay. The charge of £260 (plus other fees) is therefore not a genuine pre estimate of loss.

9. The claimant has not provided enough information to enable the defendant to fight this claim. The claimant requires to see what alleged contract was broken (i.e. the signage), also the notice to keeper sent as it is the claimant’s submission that any contract was unfair and the notice to keeper was non-compliant with the requirements of the Protection of Freedom Act 2012. Therefore the registered keeper cannot be held liable for this charge.

10. The Defendant relies on the ruling of Mr Recorder Gibson QC in the case of Civil Enforcement v McCafferty (3YK50188, Luton County Court on Appeal from Watford County Court, 21/02/2014) in which it was held that the primary purpose of CEL’s ‘parking charge’ was to deter, and that it is therefore a penalty in terrorem which is irrecoverable through civil action.

The above points will be explained fully in the Witness Statement which will be served not later than 14 days before the date of any hearing.

I believe that the facts contained in this Defence Statement are true.


………………………………………..​​​​​Date
(Defendant)

Coupon-mad

3. Part of the alleged debt (87.5%) was assigned to Debt Enforcement & Action Ltd by Civil Enforcement Ltd. The claimant therefore cannot claim for the whole alleged amount, or possibly any since all parties to the alleged debt must be listed as claimants.

Was DEAL not noted as a claimant at all on your Claim form? Was it from CEL only?

Was the parking event before October 2012 (if so no keeper liability applies because the event was pre-POFA, which you can add to the point #11 I am suggesting you add below).

Your defence looks fine for the purpose, I would perhaps just separate this into a separate point 10, not hide it in a place where you ask for a copy of the NTK:


9. The claimant has not provided enough information to enable the defendant to fight this claim. The claimant requires to see what alleged contract was broken (i.e. the signage), also the Notice to Keeper sent as it is the claimant’s submission that any contract was unfair and unsupported by Consumer law. [STRIKE] and the notice to keeper was non-compliant with the requirements of the Protection of Freedom Act 2012. Therefore the registered keeper cannot be held liable for this charge.[/STRIKE]

10. There can be no keeper liability because this Claimant has never issued Notice to Keeper letters which are compliant with paragraph 9 of Schedule 4 of the POFA 2012. Therefore the 'second condition' for keeper liability has not been met. It is far too long ago for the keeper to have any knowledge of who was driving the vehicle to do the weekly shop that day, and it was the will of Parliament when the Impact Assessment of the POFA 2012 was discussed in 2011, that keepers are not legally obliged to name a driver - even if known. So the defendant cannot be held liable in law.

11. The Defendant relies on the ruling of Mr Recorder Gibson QC...

bluetoffee1878

Wow coupon mad fast work thanks so much
DEAL is the only claimant listed on the N1 although CEL (the operator) are mentioned as managing car park on behalf of co-op
Parking event was post POFA
I came up with point 3 as per your quote after a bit of dialogue with the prankster

Coupon-mad

OK, I have re-read your defence points 1 and 3 and see where you are coming from with them so they look fine. I think I might add here the bits in bold (below) because I don't think a 'debt' (even an alleged one) can be assigned without the consumer's consent in some tick-box earlier on (e.g. if you take a real debt on - as a consumer - you have to sign a CCA agreement, one term in the small print of which, says they reserve the right to assign the debt...blah blah). But in the case of a contract foisted on a consumer there is no express consent, so arguably the debt cannot be assigned IMHO.


So if it were me I would put:


3. Part of the alleged debt (87.5%) was apparently assigned to Debt Enforcement & Action Ltd by Civil Enforcement Ltd. The claimant therefore cannot claim for the whole alleged amount, or [STRIKE]possibly[/STRIKE] any sum at all, since all parties to the alleged debt must be listed as claimants. Further, this is not a 'debt' at all. There was no credit agreement so the defendant has never consented to the possibility of 'assignment' which has taken place unilaterally and is unenforceable.

bluetoffee1878

Coupon mad you're a star
I'll make the changes and post up the final draft so you can see how it flows
Thanks again

Parking-Prankster

Also,


The defendant requests that the claim be stayed until the claimant provided the following information, which should have been part of the initial particulars of claim and would have been requested had the claimant obeyed practice directions and sent a letter before claim


a) A copy of the alleged contract (signage) at the time of the parking event
b) A copy of the notice to keeper


Without these, the defendant cannot fully defend the claim.

bluetoffee1878

Thanks to Coupon Mad and the Prankster.
To the Prankster I will ask my friend regarding what you mentioned in you email of earlier and get back to you
Latest version of defence for critique

DEFENCE STATEMENT

Initial Defence to Particulars of Claim



1. Itis denied that the Claimant entered into a contract with the Defendant. Undercivil law, any contract must be formed by offer, consideration both ways andacceptance. The Claimant is a third party agent of a private parking company(Civil Enforcement Ltd) who was simply contracted by the landowner to providecar-park management services. The claimant therefore is not capable of enteringinto a contract with the Defendant on its own account. Accordingly, it is deniedthat the Claimant has any standing to bring this claim in their own name.



2. Thedefendant did not receive a letter before claim which does not comply withpractice directions.



3. Partof the alleged debt (87.5%) was apparently assigned to Debt Enforcement &Action Ltd by Civil Enforcement Ltd. The claimant therefore cannot claim forthe whole alleged amount, or any sum at all since all parties to the allegeddebt must be listed as claimants. Further,this is not a 'debt' at all. There wasno credit agreement so the defendant has never consented to the possibility of'assignment' which has taken place unilaterally and is unenforceable.



4. TheN1 claim form has been signed off by a Mr. M.Schwarts (Solicitor); the SRA haveconfirmed that this person does not appear to be listed as a solicitor on theSRA roll. It is a criminal offence for somebody to call themselves a solicitoror act as a solicitor if they are not on the roll of solicitors. It istherefore denied that the £50 solicitor’s fee can be claimed. Also the fullclaim is denied as the claim has not been signed by either the landowner or thelandowner’s solicitor. The claimant has sent a copy of the claim forms to theSRA who have replied via email that said forms have been forwarded to theirFraud Intelligence Unit for Investigation.





5. The Defendant denies the accuracy of such ANPR equipment in that the‘time stamping’ of such equipment is controlled via the internet to remoteservers where a delay would exist.



6. The claim does not differentiate between a breach, trespass or acontractual charge so therefore does not disclose what conduct is complainedabout, therefore discloses no cause of action. If the claim is for a breach ofcontract or trespass then the claimant may only claim for their losses due tosaid breach. If the claim is for a contractual charge then the defendant submitsthat it is a contractual charge disguised as a penalty.





7. The claimant’s notices do not create any contractual relationshipbetween the claimant and motorists using the car park.



8. The car park is a free car park and as such there can be no losssuffered by either the claimant or the landowner as a result of any allegedoverstay. The charge of £260 (plus other fees) is therefore not a genuine preestimate of loss.



9. The claimant has not provided enough information to enable the defendantto fight this claim. The claimant requires to see what alleged contract wasbroken (i.e. the signage), also the Notice to Keeper sent as it is theclaimant’s submission that any contract was unfair and unsupported by consumerlaw.



10. There can be no keeper liability because thisClaimant has never issued Notice to Keeper letters which are compliant withparagraph 9 of Schedule 4 of the POFA 2012. Therefore the 'second condition'for keeper liability has not been met. It is far too long ago for the keeper tohave any knowledge of who was driving the vehicle to do the weekly shop thatday, and it was the will of Parliament when the Impact Assessment of the POFA2012 was discussed in 2011, that keepers are not legally obliged to name a driver- even if known. So the defendant cannot be held liable in law.



11. Thedefendant requests that the claim be stayed until the claimant provided the followinginformation, which should have been part of the initial particulars of claimand would have been requested had the claimant obeyed practice directions andsent a letter before claim
a) A copy of the alleged contract (signage) at the time of the parking event
b) A copy of the notice to keeper
Without these, the defendant cannot fully defend the claim.



12. The Defendant relies on the ruling of Mr Recorder Gibson QC in the caseof Civil Enforcement v McCafferty (3YK50188, Luton County Court on Appeal fromWatford County Court, 21/02/2014) in which it was held that the primary purposeof CEL’s ‘parking charge’ was to deter, and that it is therefore a penalty in terrorem which is irrecoverablethrough civil action.



The above points will be explained fully in theWitness Statement which will be served not later than 14 days before the dateof any hearing.



I believe that the facts contained in this DefenceStatement are true.





……………………………………….. Date

(Defendant)