Request for popla refused despite quoting legislation, what to do now?

Coupon-mad

do i acknowledge that my husband is the rk and make no mention that i was the driver?

however my husband isn't really the defendant, they just think he is.

Your husband IS the defendant. Do not muck this up by defending in your name. The papers are in his name so what on earth makes you think you can respond, of course you can't - wise up, this is a court claim.

PLEASE UNDERSTAND THIS IS YOUR HUSBAND'S DEFENCE!

Gin_and_Milk

Thanks,
I don't want to muck this up trust me. I've never come across anything like this before and I do want to do it properly, but for a novice like me this is a minefield. I can't even access the MCOL website to say the claim will be defended as it is rejecting the password. If I have to use snail mail there is a box on the form requesting the defendants full name if it's different from the one already listed. Do I leave this blank then?

Coupon-mad

Yes, you leave this blank, that's just there in case the defendant has changed their name (e.g. got married) or maybe the claim has misspelt it. Clearly a completely different person can't defend a case...you are not the first to ask this but it amazes me to hear it!

Re the password, has your husband registered for the Government Gateway (which he must do in his name). The defendant has to do that first, then make a note of the ID number generated and that then allows him to re-access the awful system. MCOL helpdesk details here:

https://forums.moneysavingexpert.com/discussion/comment/67008995#Comment_67008995

At this stage he needs to acknowledge the claim and leave the defence blank, NOT contesting jurisdiction, as explained by bargepole here:

https://forums.moneysavingexpert.com/discussion/comment/61084955#Comment_61084955

Sorry to throw links at you, really this is worth doing - and worth defending well. Which is better than Gladstones will do, as you will have seen from the Prankster's Blogs, they handle cases less than 'well' and lose a lot! And on this forum we've not seen a Gladstones case proceed much further once defended...not yet.

So I would not actually expect your husband to have to attend a hearing. We know the idea is scary to most people. Keep the faith, copy/adapt the 'bigsej' thread defence and show us you hybrid version (because obviously your case is not exactly the same).

Tell us that your OH has acknowledged the claim to buy 28 days instead of 14, once you have worked out what's going wrong with MCOL.

Gin_and_Milk

Hi,
This is my second attempt at a defence. As you can see, I haven't mentioned signage. This is because the examples I found involved parking permits. How do I mention signage in my defence please? I know how important it is, so I want to word it properly. Thanks


With regards to claim: xxxxxx
The claimant has failed to file enough information in the Particulars of Claim to establish a cause of action that enables the Defendant to prepare a specific defence, i.e for Trespass, a Contractual ‘unpaid fees’ or a Breach of Contract. The Defendant is therefore forced to cover all three possible grounds for the claim. This has caused significant distress and denies the Defendant fair chance to defend the claim in an informed way. The claim merely states: ‘parking charges and indemnity costs if applicable’ which does not give any indication of on what basis the claim is brought. Nor are any clear times / dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description ‘parking charges’ and ‘indemnity costs’. The Defendant asserts that, in any case, the claim is without foundation. The claimant also disputes that the Claimant has incurred a £50 solicitor cost.

The Defendant further asserts that the Claimant has ignored the Government’s clear intention as expressed in the Department of Transport Guidance on the Recovery of Parking Charges:

Charges for breaking a parking contract must be reasonable and a genuine pre estimate of loss. This means charges must compensate the landowner only for the loss they are likely to suffer because the parking contract has been broken.
For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs, or even their unlawful 4% fixed sum surcharge for payments - and they are put to strict proof that they have actually incurred and can lawfully add an extra sum and that those sums formed part of the parking contract formed in the first instance.

The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor’s conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

I believe the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

I respectfully suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

No evidence has been supplied by this Claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.

It is denied that the Claimant has the authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.

The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time / costs in dealing with this matter.

I request the court strike out the claim XXXX for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones’ template particulars for a private parking firm being ‘incoherent’, failing to comply with CPR16.4, and ‘providing no facts that could give rise to any apparent claim in law’.

Statement of truth: I confirm that the contents of this statement are true to the best of my knowledge and belief

If anyone could advise me with this I'd be really grateful. I want to send everything off by Friday at the latest as I'm going on holiday next week and I don't want to miss the deadline!

Thanks again

Gin_and_Milk

Probably another silly question, but when I fill out the form with the defence statement I'm guessing I should mention what dates I'll be away?
Thanks

Coupon-mad

I haven't mentioned signage.

Your OH needs to use the same sort of wording in other defences about signs being unclear. Bigsej's thread is one of HUNDREDS of defences here. You only need to search 'defence unclear signs' and you would find one. Signs MUST be challenged.

Also your defence must be numbered and preferably typed with double line-spacing to be nice and clear for the court, not hand-written in the form. Or, email it. People do email defences.

Assuming you really cannot overcome the issue with MCOL? Have you rung them? I gave you a link to the helpline?

Have you managed to Acknowledge the Service?

Gin_and_Milk

Hi,
Thanks for that. I tried calling MCOL earlier but couldn't get through and they're now closed, so I am going to email them AND try again ringing them again tomorrow.

I'm going to have a look now for the unclear sign bit and add it to the rest of my defence.

What do you mean by the defence must be numbered? Do you mean with the claim number on every page and the pages be numbered?

Thanks again.

Coupon-mad

Each bullet point numbered - making it nice and clear for Judge in case it goes to a hearing - like you see in the defence I wrote for bigsej and on every other defence you will see.

Gin_and_Milk

With regards to signage is this ok?

"There is no signage whatsoever from the Claimant on the driveway to the carpark. There is a dark coloured sign after the car park entrance, but the terms and conditions are unclear as it is placed at an awkward angle making it difficult to read. The sign is easily obscured by larger vehicles making it impossible to see."

Thanks

Coupon-mad

Yes that's OK but this was a P&D car park and it is alleged that you didn't pay & display, is that right? So your husband would also need to attest why no P&D machine was seen/used, stating & explaining the driver's issues, this must be part of the defence, what was the problem? He needs to say:

the driver tried to buy a ticket at the time but was unable to do so because of their machines. (why? what went wrong? was it broken?).

Your OH needs to start the defence by admitting to being the registered keeper but averring that he was not the driver. VITAL to say that.

And he needs to include the defence point that MB have not followed the POFA Schedule 4 paragraph 8 or 9 so no keeper liability is possible in law. I could not see that there and it is vital of course to protect your OH from liability.

How have you managed to include this old stuff about 'loss' in your defence, we never use this wording now and I'm sure it is NOT in the defence I wrote for bigsej sop remove this argument and stop thinking the charge has to match the loss:

The Defendant further asserts that the Claimant has ignored the Government’s clear intention as expressed in the Department of Transport Guidance on the Recovery of Parking Charges:

Charges for breaking a parking contract must be reasonable and a genuine pre estimate of loss. This means charges must compensate the landowner only for the loss they are likely to suffer because the parking contract has been broken.
For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

The argument about no loss is shot down by the Beavis case so you can't argue it.