County Court Business Centre

cueball

Pic's of the sign's are posted with the other photo's ! Here is a copy of my defence letter (work in progress)






1. The Claimant has failed to adduce a cause of action and thus the Defendant requests that the Claimant explain on what legal basis they are empowered to bring the claim.

2. The particulars of claim are too vague and the Defendant suggests that the Claimant has adopted a system to simply enable them to issue large numbers of claims which do not contain a sufficient amount of detail to enable the Defendant to respond properly to the claim. The Defendant suggests that this shows a lack of concern and respect for not only the Defendant but also the Court.

3. If the claim is made under the law of trespass then the Defendant requires that the Claimant provides evidence that they are legally authorised to make such a claim. The Defendant suggests that the Claimant and, or their assignors, do not have the required interest or authority on behalf of the land owner to make such a claim and therefore “the Claimant is put to strict proof” on this point.

4. The Claimant states that the debt has been assigned, and therefore the Defendant requires proof that the assignment is genuine in the form of an “original signed, witnessed and dated deed of assignment”.

5. If the Court is satisfied that the Claimant does have the jurisdiction to make such a claim, then the Defendant requires “proof” that the sum claimed represents the damage suffered by the Claimant as a result of the driver’s actions, and “evidence of”, on what basis the sum has been calculated. The Defendant suggests that the sum is exorbitant



6. The Defendant believes that the Claimant has attempted to claim an expense that was not incurred. Specifically, the £50 administrative and collection fee has been inflated. The agent advertises its charges as ‘no collection, no fee’.

7. If the Court is satisfied that the Claimant may proceed with the claim then the Defendant disputes that the signs displayed in the carpark are insufficient to bind the Defendant to a contract. The signs do not constitute a contractual offer and therefore there has been no offer and acceptance, the basis of a contract. The signs are inadequate due to the size of the car park.

8. If the Court is satisfied that a contract has been formed then the Defendant maintains that such a contract is in breach of the Unfair Terms in Consumer Contract Regulations 1999 as the Claimant has not acted in good faith.

cueball

Hi HO87


I've found your letter Request for Further Info Part 18 Once I've inserted my details printed and signed, where do I post it. Am I to post it to MIL or the Courts.


If sending to MIL what do about the Courts the date for defence is looming (Court Claim is dated 15/09/16 Acknowledged by 29/09/16 do I have 14 days from this date to submit my defence


thanks in advance

HO87

As I have posted repeatedly - although others continue to push it - there is no immediate rush to submit a Part 18 request. It will not be replied to in any event and you should not rely on it to supply any information that will help you build your defence.

Concentrate on your defence - the Part 18 can wait and doesn't need to be sent until you receive the N180 Allocation Questionnaire which you will receive about 5-7 days after you submit your defence.

If your Claim Form is dated 15 September then a period of 5 days are allowed for the form to be served on you. To that you can add a further 28 days which gives a latest return date of 18 October. As you can submit your defence by email then you actually have another 9 days in which to work on it.

cueball

HO87


Thanks for the clarity, was thinking that! not being the sharpest tool in the box I just wanted to be certain.


I have posted a draft copy of my defence and am waiting for some feedback on the wording of the signs, I'll then amend this to tailor it more.


I take it that I will be waiting till the last minute to submit my defence?

HO87

cueball wrote: »

I take it that I will be waiting till the last minute to submit my defence?

If the system allows you 28 days why not use it?

I entirely understand why people feel that they must rush to respond but if the court wasn't prepared to accept responses on Day 28 why give that long in the first place?

There is no prize for submitting your defence early and I would suggest that those submitted early are more likely to be deficient. Chill. Take you time and invest time in reading all those threads - don't rush.

cueball

Thanks again


I have been reading through the posts and feel like I'm chasing my tail lol.


The mist is clearing and I can see the defence strategy though I'm not clear on the content of my defence yet. Some of the posts seem generic and I am hoping that I will be able to copy the majority of it if not all. As I said not the sharpest

Coupon-mad

Copy everything you find that you feel is relevant into your draft. Please look mostly at MIL cases because much of the brief defence you've shown so far looks like a Gladstones defence to me. Needs more to show a Judge why this should be struck out (or why you win).

Try searching the forum for words like 'champerty' and 'intermeddling' to get a view of what's been said before about MIL.

HO87, do you have the claim numbers of the cases won by unrepresented defendants recently, where the Judge decided that all MIL had done was to purchase a few photographs then run to court with them as their 'evidence'? It would be good to quote the court/Judge in that case?

HO87

Coupon-mad wrote: »

HO87, do you have the claim numbers of the cases won by unrepresented defendants recently, where the Judge decided that all MIL had done was to purchase a few photographs then run to court with them as their 'evidence'? It would be good to quote the court/Judge in that case?

As it happens, I do:

1. 22 Sept 2016, Ipswich CC Case No C8QZ57G1 MIL -v- Paul Cook

It was in this case particularly in which the judge (DJ Spencer) suggested that the 6 page witness statement supplied by MIL that in effect provided no evidence could actually have been boiled down to a single sentence - "We bought some photographs"

The judge also said "This is the problem with MIL.You buy all these supposed debts and rush them to court and can't even be bothered to provide remotely sufficient evidence as to why, in this instance, Mr Cook owes you hundreds of pounds"

2. 30 Sept 2016 Colchester CC Case No C2QZ582J MIL -v- Mrs McK

Case dismissed for lack of any evidence, lack of signage.

Umkomaas has also saved the details of several of my posts in which I have given specific guidance as to subjects to cover in MIL defences and could probably supply the links. I have done the same in numerous threads on Pepipoo - you just have to read through them. This may take quite a few hours but its important to understand the context of the advice. A Gladstones defence is unlikely to succeed against MIL

Umkomaas

Umkomaas has also saved the details of several of my posts in which I have given specific guidance as to subjects to cover in MIL defences and could probably supply the links.

This is what I've bookmarked.

https://forums.moneysavingexpert.com/discussion/comment/71222355#Comment_71222355

cueball

cueball wrote: »

Hi beamerguy
here is the link to the pic's hope this works right this time, also the offence is "Not Clearly Displaying a Valid Permit"
hxxp://s1174.photobucket.com/user/cueball5/slideshow/

All photo's via link above including Letter of Assignment, Letter before Action pic's of wording on signage. Below is my Statement of Defence any feedback greatly appreciated, does this fully relate to my case, the offence stated is "Not Clearly Displaying a Valid Permit"
is there anything I need to add or remove thanks in advance

Statement of Defence

1.
The claim is defended for the following reasons:

a. The Claimant has no standing to bring a case
b. The Claimant has no capacity to form a contract with the Defendant
c. The signage does not offer a contract with the Defendant
d. The Claimant provided no service to the Defendant
e. The Claimant’s practices do not comply with current PD
f. Even if a contract could be formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations

2.
The Claimant does not own the car park and nor does he have any other interest in it and therefore lacks capacity to offer parking. Nor did the Claimant provide any service to the Defendant. The Defendant requests the Claimant to produce evidence of standing by way of a deed, lease or contract.

3.
If the Court determines that the Claimant does have the standing to bring a case, the Defendant disputes that the signs displayed at the carpark make a genuine contractual offer. In any event as a unilateral offer these signs cannot be seen to constitute a representation of a meeting of minds. There was no genuine offer and the Claimant provided no consideration. The elements of a contract are absent and the Claimant has no case.

4.
Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive :
With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.

5.
In purchasing the alleged debt, the Claimant has done nothing but “wantonly and officiously” intermeddled in the dispute of another, having had no prior interest in the debt. This “savours of maintenance” and the court is asked to refer to the reaffirmation given to the matter of maintenance by Moore-Bick LJ in the case of Simpson –v- Norfolk & Norwich University Hospital NHS Trust (2011) AC 1149 and as found by the Deputy District Judge in the case of MIL Collections Ltd -v- Bowker heard at Oldham County Court on 15 January 2016 (Case number B1QZ7N32).

6.
The Claimant has not explained what authority it has to bring the claim. The reference below is a relatively important point because if JAS lack standing to issue parking charges or to issue proceedings in their own name, then the Claimant also lacks standing. The Claimant cannot create standing out of assigned debt if their assignor did not have any in the first place.
The Defendant therefore will not accept the Claimant’s assertion and requests “strict proof” by producing evidence of standing by way of a deed, lease or contract.

ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standing to bring court proceedings in its own name.
Reference to the contradiction between Clause 3.7, where the landowner appoints ParkingEye as their agent, and Clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land.

ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings.

The Claimant does not have the right to bring the case in their own name.1SE09849, VCS v Ibbotson, S!!!!horpe County Court, 16/5/2012. District Judge McIlwaine (page 10, line 16, to page 14, line 31) strikes out the case as the claimant does not have the right to bring the case in their own name, and also considers whether the offices of the company are in contempt of court for bringing the case


7.
The charge must be shown not to be “excessive or unconscionable.” A comparison with the penalty charges imposed by Manchester City Council shows that their charge for a comparable situation is £50 reduced to £25 if paid within 14 days. One might therefore argue that the charge of £100 is “excessive and unconscionable”.

8.
The Defendant has the reasonable belief that the Claimant has attempted to claim an expense that was not incurred. Specifically, the £50 administrative and collection fee has been inflated. The agent advertises its charges as “no collection, no fee”. The Claimant did not therefore incur the additional charge.

9.
The Defendant invites the Court to strike out the claim as having no prospect of success. Alternatively, the Defendant requests the Court to order the Claimant to provide Further and Better Particulars of Claim, the same to include evidence that the Claimant has the legal standing to bring the Claim.

I believe the facts stated in this defence are true.