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  • nosferatu1001
    nosferatu1001 Posts: 12,961 Forumite
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    Indeed, and loading meets directly the Jopson case.
  • Coupon-mad
    Coupon-mad Posts: 132,659 Forumite
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    Show us your draft defence to comment on; we won't hop to Ixworth's thread & guess what yours looks like.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Akumo
    Akumo Posts: 85 Forumite
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    I have underlined one section as I don't think that it is entirely relevant and I should either remove completely or reword it.
  • Akumo
    Akumo Posts: 85 Forumite
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    In the County Court Business Centre
    Between:
    UK Car Park Management
    V
    XXXXXXXXXXX

    [FONT=&quot]


    [/FONT]Claim Number: XXXXXXXX[FONT=&quot]
    [/FONT]
    [FONT=&quot]


    [/FONT]I, XXXXXXXXXXXXX, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:
    [FONT=&quot] [/FONT]
    • [FONT=&quot]The car was being loaded with personal belongings taken from a property that I was living in. Evidence for this can be seen in the tenancy agreements.[/FONT][FONT=&quot][/FONT]
    • [FONT=&quot]There is no process or procedure put in place by either UK CPM or by the Housing Association in order to account for tenants either moving into or out of a property.[/FONT][FONT=&quot][/FONT]
    • [FONT=&quot]The Claim Form issued on 04/12/2017 by [/FONT]UK Car Park Management[FONT=&quot] was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “[/FONT]UK Car Park Management[FONT=&quot]”.[/FONT][FONT=&quot][/FONT]
    • This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). 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.

      [FONT=&quot][/FONT]
      1. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.[FONT=&quot][/FONT]
      2. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.[FONT=&quot][/FONT]
      3. The Schedule of information is sparse of detailed information.[FONT=&quot][/FONT]
      4. 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. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:        [FONT=&quot][/FONT]
        1. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute[FONT=&quot][/FONT]
        2. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure[FONT=&quot][/FONT]
        3. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and[FONT=&quot][/FONT]
        4. support the efficient management of proceedings that cannot be avoided.’[FONT=&quot][/FONT]
      5. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.[FONT=&quot][/FONT]
      6. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;[FONT=&quot][/FONT]
        1. 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[FONT=&quot][/FONT]
        2. A copy of any contract it is alleged was in place (e.g. copies of signage)[FONT=&quot][/FONT]
        3. How any contract was concluded (if by performance, then copies of signage maps in place at the time)[FONT=&quot][/FONT]
        4. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper[FONT=&quot][/FONT]
        5. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter[FONT=&quot][/FONT]
        6. If charges over and above the initial charge are being claimed, the basis on which this is being claimed[FONT=&quot][/FONT]
        7. If Interest charges are being claimed, the basis on which this is being claimed.[FONT=&quot][/FONT]
      7. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.[FONT=&quot][/FONT]
    • 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) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when it is believed that neither the signs, nor any NTK mentioned a possible additional £256.90 for outstanding debt and damages.      [FONT=&quot][/FONT]
    • The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs’ were incurred.[FONT=&quot][/FONT]
    • 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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage 'contract', none of this applies in this material case.[FONT=&quot][/FONT]
    • 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.[FONT=&quot][/FONT]
      1. 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.[FONT=&quot][/FONT]
      2. 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. [FONT=&quot][/FONT]
      3. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:[FONT=&quot][/FONT]
        1. 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.[FONT=&quot][/FONT]
        2. It is believed the signage was not lit 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.[FONT=&quot][/FONT]
        3. 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.[FONT=&quot][/FONT]
        4. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.[FONT=&quot][/FONT]
      4. BPA CoP breaches - this distinguishes this case from the Beavis case: [FONT=&quot][/FONT]
        1. the signs were not compliant in terms of the font size, lighting or positioning.[FONT=&quot][/FONT]
        2. the sum pursued exceeds £100.[FONT=&quot][/FONT]
        3. there is / was no compliant landowner contract.[FONT=&quot][/FONT]
    • 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.      [FONT=&quot][/FONT]
    • 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.[FONT=&quot][/FONT]
    • 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.[FONT=&quot][/FONT]
    • Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 10 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.[FONT=&quot][/FONT]
    [FONT=&quot]

    [/FONT]The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:[FONT=&quot][/FONT]
    • [FONT=&quot]Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 4th December 2017.[/FONT][FONT=&quot][/FONT]
    • 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.[FONT=&quot][/FONT]

    [FONT=&quot]
    [/FONT]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.[FONT=&quot]
    [/FONT]I confirm that the above facts and statements are true to the best of my knowledge and recollection.
  • [Deleted User]
    [Deleted User] Posts: 0 Newbie
    edited 1 January 2018 at 11:25PM
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    My tuppence worth:

    I dislike the template standard wording here:

    The Claim Form issued on 04/12/2017 by UK Car Park Management was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “UK Car Park Management”

    It sounds like a technicality and fails to emphasise that in effect no one has verified the case with a statement of truth. Add some meat to the bones...

    This should more properly refer to CPR Part 22 PD 3.10 and the court can be invited to strike it or order signed and verified particulars be served under CPR Part 22 PD 4.1
    https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part22/pd_part22#4.1

    Criticising a party of using a template when you are also so doing is, inmho also best avoided.

    Litigation is regularly conducted years after the key events, the passage of time is insufficient to be regarded as prejudicial to the defence of the claim.

    Most cases on here assert some basis for their being no contract in the first place etc. Spell them out.

    Number ALL paragraphs. Use lettering for subparagraphs or decimalisation eg. 6.1, 6.2 etc.
  • Akumo
    Akumo Posts: 85 Forumite
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    Johnersh, thank you for your repsonse.
    So I completely remove all in that section that I have underlined?
    and remove this part:
    The Claim Form issued on 04/12/2017 by UK Car Park Management was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “UK Car Park Management”
  • Akumo
    Akumo Posts: 85 Forumite
    Options
    [FONT=&quot]In the County Court Business Centre
    Between:
    UK Car Park Management
    V
    XXXXXXXXXXX
    [/FONT]    [FONT=&quot]
    Claim Number: XXXXXXXX

    I, XXXXXXXXXXXXX, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons: [/FONT]
    [FONT=&quot]1 [/FONT][FONT=&quot]The car was being loaded with personal belongings taken from a property that I was living in. Evidence for this can be seen in the tenancy agreements.[/FONT]

    [FONT=&quot]2 [/FONT][FONT=&quot]There is no process or procedure put in place by either UK CPM or by the Housing Association in order to account for tenants either moving into or out of a property.[/FONT]

    [FONT=&quot]3 [/FONT][FONT=&quot]This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). 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.

    [/FONT]

    [FONT=&quot]3.1 [/FONT][FONT=&quot]There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.[/FONT]

    [FONT=&quot]3.2 [/FONT][FONT=&quot]This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.[/FONT]

    [FONT=&quot]3.3 [/FONT][FONT=&quot]The Schedule of information is sparse of detailed information.[/FONT]

    [FONT=&quot]3.4 [/FONT][FONT=&quot]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. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:    [/FONT]

    [FONT=&quot]3.4.1 [/FONT][FONT=&quot]‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute[/FONT]

    [FONT=&quot]3.4.2 [/FONT][FONT=&quot]enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure[/FONT]

    [FONT=&quot]3.4.3 [/FONT][FONT=&quot]encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and[/FONT]

    [FONT=&quot]3.4.4 [/FONT][FONT=&quot]support the efficient management of proceedings that cannot be avoided.’[/FONT]

    [FONT=&quot]3.5 [/FONT][FONT=&quot]The [/FONT][FONT=&quot]Defence[/FONT][FONT=&quot] therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.[/FONT]

    [FONT=&quot]3.6 [/FONT][FONT=&quot]Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;[/FONT]

    [FONT=&quot]3.6.1 [/FONT][FONT=&quot]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[/FONT]

    [FONT=&quot]3.6.2 [/FONT][FONT=&quot]A copy of any contract it is alleged was in place (e.g. copies of signage)[/FONT]

    [FONT=&quot]3.6.3 [/FONT][FONT=&quot]How any contract was concluded (if by performance, then copies of signage maps in place at the time)[/FONT]

    [FONT=&quot]3.6.4 [/FONT][FONT=&quot]Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper[/FONT]

    [FONT=&quot]3.6.5 [/FONT][FONT=&quot]Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter[/FONT]

    [FONT=&quot]3.6.6 [/FONT][FONT=&quot]If charges over and above the initial charge are being claimed, the basis on which this is being claimed[/FONT]

    [FONT=&quot]3.6.7 [/FONT][FONT=&quot]If Interest charges are being claimed, the basis on which this is being claimed.[/FONT]

    [FONT=&quot]3.7 [/FONT][FONT=&quot]Once these Particulars have been filed, the Defendant asks for reasonable time to file another [/FONT][FONT=&quot]defence[/FONT][FONT=&quot].[/FONT]

    [FONT=&quot]4 [/FONT][FONT=&quot]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) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when it is believed that neither the signs, nor any NTK mentioned a possible additional £256.90 for outstanding debt and damages.    [/FONT]

    [FONT=&quot]5 [/FONT][FONT=&quot]The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs’ were incurred.[/FONT]

    [FONT=&quot]6 [/FONT][FONT=&quot]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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage 'contract', none of this applies in this material case.[/FONT]

    [FONT=&quot]7 [/FONT][FONT=&quot]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.[/FONT]

    [FONT=&quot]7.1 [/FONT][FONT=&quot]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.[/FONT]

    [FONT=&quot]7.2 [/FONT][FONT=&quot]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. [/FONT]

    [FONT=&quot]7.3 [/FONT][FONT=&quot]Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:[/FONT]

    [FONT=&quot]7.3.1 [/FONT][FONT=&quot]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.[/FONT]

    [FONT=&quot]7.3.2 [/FONT][FONT=&quot]It is believed the signage was not lit 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.[/FONT]

    [FONT=&quot]7.3.3 [/FONT][FONT=&quot]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.[/FONT]

    [FONT=&quot]7.3.4 [/FONT][FONT=&quot]The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.[/FONT]

    [FONT=&quot]7.4 [/FONT][FONT=&quot]BPA CoP breaches - this distinguishes this case from the Beavis case: [/FONT]

    [FONT=&quot]7.4.1 [/FONT][FONT=&quot]the signs were not compliant in terms of the font size, lighting or positioning.[/FONT]

    [FONT=&quot]7.4.2 [/FONT][FONT=&quot]the sum pursued exceeds £100.[/FONT]

    [FONT=&quot]7.4.3 [/FONT][FONT=&quot]there is / was no compliant landowner contract.[/FONT]

    [FONT=&quot]8 [/FONT][FONT=&quot]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.    [/FONT]

    [FONT=&quot]9 [/FONT][FONT=&quot]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.[/FONT]

    [FONT=&quot]10 [/FONT][FONT=&quot]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.[/FONT]

    [FONT=&quot]
    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:[/FONT]
    • [FONT=&quot]Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 4th December 2017.[/FONT]
    • [FONT=&quot]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.[/FONT]
    [FONT=&quot]
    [/FONT]    [FONT=&quot]
    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.[/FONT]
  • Akumo
    Akumo Posts: 85 Forumite
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    is the above better?
  • Akumo
    Akumo Posts: 85 Forumite
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    Any feedback please on what I have written?
    having trouble with the formatting from word and bringing it across into a forum post.
  • KeithP
    KeithP Posts: 37,880 Forumite
    Name Dropper First Post First Anniversary
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    Akumo wrote: »
    having trouble with the formatting from word and bringing it across into a forum post.
    I guessed you missed this thread:
    Please don't copy and paste from Word/Outlook
This discussion has been closed.
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