Northampton Court Claim arrived (MCOL)

JackBasta

I mentioned on there that I was writing my defence - the 31.14 stuff was nearly 2 weeks ago!

Someone at the BMPA offered a skeleton defence, and the guy on CAG told me I needed a 2 line skeleton defence?

Am I missing something here?

JackBasta

I'm talking about the actual defence I need to submit to MCOL yes? Not a 31.14 request, which I actually sent off last week.

Here yes? http://www.consumeractiongroup.co.uk/forum/showthread.php?472070-Millennium-Door-and-Event-Security-Gladstones-claimform-july-2012-PCN/page2

Has there been a misunderstanding?

henrik777

the guy on CAG told me I needed a 2 line skeleton defence?

That's not how i read it (although i admit to not taking a forensic study). Ditch CAG and stick with BMPA or MSE. The trouble with people who go all over the shop for help is they get different advice, most of which should work on it's own, but when mixed it just gives the person seeking help a headache.

JackBasta

That's what I'm finding - I'm posting on 3 forums, and people on there with thousands of posts on each forum are giving me completely different advice. My reasoning behind going on 3 forums is to get as much information as you can regarding possible avenues, and then pick one that best suits your case. I just didn't expect the advice to be so diverse!

I feel it's best to not go down the skeleton defence route as I don't fully understand the implications, and it seems very risky when you have one shot at a defence.

So I'm currently siding with a full defense and then if it goes to a hearing, a complete understanding of each item and how to argue it in front of a magistrate.

So I think the best option is to go with a tailored version of one of coupon-mad's anti-Gladstones defences e.g.

https://forums.moneysavingexpert.com/discussion/5497384)

Remove the stuff about Pofa (as it doesn't apply to the case),
and put a clause in towards the top about the "event" being pre-Pofa and no prooof of driver.

You think that's a decent way forward?

bargepole

JackBasta wrote: »

So I'm currently siding with a full defense and then if it goes to a hearing, a complete understanding of each item and how to argue it in front of a magistrate.

Looks like you need to do far more research.

The hearing will not be in a court in the USA.

Nor will it be in front of any magistrate.

JackBasta

defense was a typo

Ah ok, judge, not magistrate - just assumed it would be a magistrate in small claims.

Apart from that, is using a tailored version of coupon mad's defence along with a statement on pre-Pofa a good thing to do?

Redx

you already said "defence" and "judge" in post #41

the point is that you READ and digest the info you are given , plus if you had looked again at the NEWBIES sticky thread coupon-mad has linked recent and updated posts by bargepole (aka bargepole of the BMPA) that clearly state the details of a defence and how to make one , to print it , which font to use , which line spacing etc , its all there including timelines and everything , including debunking "skeleton defences"

as mentioned earlier, your nets are too wide and becoming overloaded with immature small fish

stick to what bargepole and CM have said and do it their way , otherwise its pointless you being helped on here

and remember this golden adage

to assume makes an A$$ of U and ME !!!

DONT DO IT , CHECK , RECHECK , THIS IS A LEGAL MATTER , NOT A GAME !

in the meantime , good luck

JackBasta

Yes. By the phrase "defense" I meant "defence" - And when I said "magistrate", I meant "judge". That's not down to a lack of research. It's because I was trying to get what was in my head into a forum post too quickly, and didn't think I needed to proof read a forum post. I would obviously be more careful with documents I need to submit to court, or in letters to a solicitor. I apologise.

I've read bargepole's really helpful stickies regarding the process, however it was suggested by someone from BMPA support (almost certainly not bargepole) that I use a template skeleton defence (short form defence), and that was then rubbished by one of the admins on the CAG forum, who offered up a 2 line skeleton defence instead, which has since been rubbished on here. I'm more than happy to forward the BMPA email onto bargepole if he wishes.

I'm not sure which bits in your posts you feel I'm not digesting properly. I've tried to take everyone's opinions in and kept an open mind but I'm at the point now where I've had to decide between quite a few extremely diverse options, so I've decided I'm most comfortable going down the route of CM's anti-Gladstone defence.

Can I just take this opportunity to thank you guys for doing a brilliant job. I absolutely appreciate everything you're doing for us, because this stuff is a bit of a legal minefield for us muggles.

Redx

I think people like myself and bargepole and CM and others would like to be able to see that when you write something it has been "proof read" so that we know that you understand all the basics , whereas at the moment you are coming across as if you only started this an hour ago and so replies tend to "pull you up on basics" instead of dealing with the actual details

I do agree that if you were to ask the ex-TOP GEAR presenters which is the best car you would get 3 different replies , but at some point you need to decide on a strategy and stick to it

I doubt that the people on here care what a CAG admin thinks, even if he or she knows their stuff

when you post on here, it should reflect the advice you were given on here , and as bargepole has been involved in many cases for the BMPA and helped people in need etc, I tend to think you should go by what he and CM say, if not then what is the point in posting here ? - just a thought, and good luck

read his reply on pepipoo to get an idea of any "credentials" or "his knowledge"

http://forums.pepipoo.com/index.php?showtopic=110016&st=20&p=1235870

also what he says about CAG too

if you prefer the CAG advice, then only post on there as they are advising you , but we KNOW that bargepole has been on tv and in many court rooms helping others in the last few years, but do we know that the CAG admin has done the same ?

JackBasta

First draft of defence.. would be grateful for any input

1. It is acknowledged that the defendant, xxx, residing at xxx is the registered keeper of the vehicle.

2. It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in it's entirety. The date of the alleged incident is XX/XX/2012 as per the particulars of claim which is over 4 years ago.
I am perpelexed as to why the Claimant waited until now to bring proceedings.

3. The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable. From the limited information provided by the particulars of claim, it can be seen the date of the alleged incident is XX/XX/2012 which predates the enactment of PoFA 2012. This being the case, the claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced. This distinguishes the case from Elliot vs Loake, in which there was irrefutable evidence of the drivers identity. Further, Elliot v Loake was a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for S.172, which cannot apply here.
PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).

4. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case. The particulars of claim fail to meet CPR16.4 and PD16 7.3-7.5 and merely provide a date, due date, and an "amount" consisting of a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors.
The claim also states "parking charges and indemnity costs if applicable" which gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'.
Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way.
Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.

5. 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 term 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.

6. I am yet to have knowledge of all documents provided to the court in support of the application, despite sending a CPR 31.14 request to the claimant's solicitors on 21/11/2016.
Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Millenium Door and Event Security, and no proof has been provided.

7. In the pre court stage the Claimant’s solicitor refused to provide me with the necessary information I requested in order to defend myself against the alleged debt.
They did not send me a Letter before Action that complied with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which your client intends to rely.
c) How the “charge amount” of 125 pounds has been calculated and justified.
d) Any form of possible negotiation or ADR offered.

8. I 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.

9. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

10. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

11. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

12. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

13. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) 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 Unfair Terms in Consumer Contracts Regulations 1999.
d) 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.
e) Absent the elements of a contract, there can be no breach of contract.

14. 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.

15. I request the court strike out this claim for the reasons stated above, and 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.