Never issued PCN and can prove, yet appeal still rejected

KeithP

Bell-liv wrote: »

The defendant is concerned that the claimant instructs Goldstones Solicitors in this case...

Typo - should read Gladstones.

nosferatu1001

OK, that is a bit of a mess.

You go off on tangents and dont have a coherent set of legal arguments.

For instance your tirdae is simply:

1) The claimant claims to rely upon the protection of freedoms act. As no notice was affixed to teh vehicle, Schedulee 4 para 9 requires that a notice to keeper is received within 14 days of the incident. The notice to keeper was dataed after X days and received after 39 days, well outside this timescale. While the NTK misleadingly claims a notice was affixed to the vehicle, the claimant on X date confirmed that there was no notice affixed at the time due to the vehicle driving off. As such the claimant has forfeited any rights to use the provisions of POFA to hold the Keeper liable.
2) Then EvL as Jonnersh wrote for you...

and so on.

NUMBER every paragraph. EVERY para, not just headings.
Challenging the PoC goes FIRST. Think of this logically - you attack the structure of the claim first, then if that is defeated, you pass to whether the keeper has liability, and so on.

You also need to add in - locus standii, signage, core price term is hidden, the attack on claimant being correct (You havent shown us the claim form nor confirmed this, so do so) or otherwise (MPS vs MDES) etc.

As a note, the NtK was not invalid - it just cannot be used to hold the keeper liable. It is as valid as any other speculative invoice.

Bell-liv

Thanks for the advice - and yes your are correct - on reflection it is a mess. Ill re-draft and re-post.


Johnersh - the Particulars of Claim read verbatim:


The driver of the vehicle registration xxx (the 'vehicle') incurred the parking charge(s) on 08/11/2016 for breaching the terms of parking on the land at Fforestfach retail Swansea SA5 4AA
The defendant was driving the vehicle and/or is the keeper of the vehicle.
AND THE CLAIMANT CLAIMS
£160 for parking charges/Damages and indemnity costs if applicable, together with interest of £7.58 pursuant to s69 of the County Courts Act 1984 at 8%pa, continuing to judgement at £0.04 per day.


It is signed by a named legal representative




* Is it not the case that under POFA they can only attempt to reclaim the original charge, which in this case was £100 according to the NTK and not £160?

[Deleted User]

Ok - I get a bit angry elf with rubbish statements of case. I don't tolerate it my day job and you shouldn't either.

You could apply to strike out, but that costs money. As such, I have done a few preliminary points for you. Obviously for the defence itself, there is more than enough material on the forum. The likes of Coupon know POFA better than me! I thought it worth separating out driver and keeper liability into two since both are alleged and in responding in that way, it may help not to get tied up in knots in any subsequent hearing.

You will no doubt do a lot of cutting and pasting to get this ready. Do make sure you keep your numbering sequential. You can't very well have a beef with their Particulars if you don't make sure that your documents are tidy.

~DEFENCE~

Preliminary Issues
1. The Particulars of Claim as prepared by the Claimant are embarrassing, failing to set out the Claimant's case adequately (or at all) in a manner which permits the Defendant to fully understand the case he has to answer.

2. The Defendant understands the Claimant's case to relate to an unpaid parking charge, yet the Particulars fail to specify whether this is a single charge or multiple and what terms (if any) the Defendant is alleged to be in breach of.

3. The Claimant is in breach of CPR Part 16 PD 7.3(1) insofar as he has failed to set out the details of any written parking contract that it may be alleged that the Defendant is in breach of and CPR Part 16 PD 7.5, in the event that it is alleged a parking contract was concluded by contract.

4. Notwithstanding that the Claimant's claim was prepared using the Money Claim OnLine (MCOL) facility, the Court will note that (i) Particulars may be prepared up to 1080 characters in length and (ii) that the Claimant is permitted to serve addendum Particulars by post, if required. The defective statement of case from the Claimant in this matter is a mere 484 characters in length. No or no proper attempt has been made to set out the claim, to the prejudice of the Defendant.

5. The Defendant reserves the right to amend and/or wholly re-plead his case, if so required. The Defendant avers that to further the overriding objectives of CPR Part 1.1(1) and 1.1(2)(a) the Defendant should be permitted to respond to a fully particularised claim from the Claimant, when available an respectfully requests that these proceedings be stayed in the absence of the same.

Background

5. At all material times the Defendant admits that he was (and is) the RK of vehicle registration mark XXXXXX

6. The Defendant's vehicle was parked [add all details relating to location and parking as the claimant never doest this - as they should]

etc. etc.

Liability for parking charges
The Particulars of Claim are prepared in the alternative. The Defendant responds to each basis of claim as set out below.

(a) Driver Liability
The Defendant puts the Claimant to strict proof that he was the driver of the vehicle at the time that the parking contravention is alleged.

To the extent to which the Claimant will rely upon the criminal proceedings in Elliot v Loake to establish driver liability, the Defendant will aver that there is no such presumption in the civil courts or in statute for any driver contraventions or alleged breaches of law. etc.

(a) Keeper Liability

[insert usual forum boilerplate defence] etc etc.

[Deleted User]

Almost forgot
Under a subheading of 'damages claimed:'
The Defendant denies any liability to the Claimant for the sums claimed under contract (or at all). The Claimant is put to strict proof.

Further, it is denied that the CLAIMANT is entitled to claim legal costs in connection with small claims proceedings or within the terms of any parking contract as alleged. The Claimant is required to prove both entitlement to all such costs and the quantification of the same.

Interest on any damages claimed is at the discretion of the Court. The claim to interest is not admitted.

nosferatu1001

I love that lead in Absolutely nails them to their claim that they cant provide more details, if theyve only used half the allowed space....

[Deleted User]

Absolutely nails them to their claim that they cant provide more details, if theyve only used half the allowed space....

It's always been a feeble excuse, but yes: if you cut and paste the exact wording into MS Word and use the character count function, itll tell you just how lazy they are.:D

DollyDee_2

Johnersh wrote: »

Almost forgot
Under a subheading of 'damages claimed:'
The Defendant denies any liability to the Claimant for the sums claimed under contract (or at all). The Claimant is put to strict proof.

Further, it is denied that the Defendant is entitled to claim legal costs in connection with small aims proceedings or within the terms of any parking contract as alleged. The Claimant is required to prove both entitlement to all such costs and the quantification of the same.

Interest on any damages claimed is at the discretion of the Court. The claim to interest is not admitted.

Should the second paragraph read Claimant (not Defendant) in the first line of the first sentence and "small claims proceedings" (not small aims proceedings) a bit further on?

Dollydee
(apologies if I'm mistaken.

[Deleted User]

Nope, you're quite right (now edited). Since my day job exclusively involves bringing claims against defendants, that was an inevitable (if an embarrassingly fundamental) typo that I was going to make at some point...

Bell-liv

Round two:
Thanks for all the assistance, much cut and pasting later - im again open to any thoughts and advice: