Court Claim Received

Coupon-mad

When was the parking event, by the way - post POFA I assume?

I just suggested to Jonny Red who is at the same stage, same issue, that he could end his defence with something like:


' This claim is without merit; it is vexatious and unreasonable in the extreme and I invite the court to strike it out without wasting time on a hearing. Further, I intend to claim my full costs and expenses and trust the court will agree. '

DollyDee_2

bluetoffee1878 wrote: »

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)

Should "Claimant" highlighted in red be Defendant?

hoohoo

DollyDee wrote: »

Should "Claimant" highlighted in red be Defendant?

Yes, it should be

desperateD

bluetoffee1878 wrote: »

4. TheN1 claim form has been signed off by a Mr. M.Schwarts

I think you may have misspelt Schwarts. On mine and other claim forms it's been spelt as Shwarts (no 'c').

hoohoo

desperateD wrote: »

I think you may have misspelt Schwarts. On mine and other claim forms it's been spelt as Shwarts (no 'c').

..but if you did not misspell it, please let us know. That would be *very* interesting if he spells his name incorrectly in different ways.

bluetoffee1878

Thanks Dollydee and Hoohoo good spot I'll change the wording you pointed out. Going to send it in next week, I also got Bargepole to proof read it for me as he was very helpful on a previous defence so I'm pretty happy with it apart from the errors just pointed out
Also the spelling is Shwarts as you have said on yours my mistake.
Just been reading about CELs antics on the pranksters blog regarding tricking people into not turning up at court. Really hope they try that with me.

bluetoffee1878

Coupon mad, the event was post POFA but over a year ago

bluetoffee1878

Also coupon mad thanks for that paragraph I will add to the defence and post up final version before I send
Just saw on Twitter from the prankster that the SRA fraud have "escalated the investigation of Mr Shwarts to the next level"
Very interesting.....

sm2303

bluetoffee1878 - was your parking ticket received back before the law changed in 2012 & subsequently the advice with regards to ignoring the tickets? Just wondering as I have received a DEAL court form & need to write up a defence too & was hoping to use edit your defence & use it as a template. Does your defence address this point? Thanks.

bluetoffee1878

No - this was a post POFA event.
Please feel free to use what I have posted, I'm sure if you search around you will find a suitable paragraph to insert regarding the RK not being liable.