SIP Court case help

Lamilad

The_Deep wrote: »

If you pay them £60, you will be funding the importation of drugs into the UK, white slavery, people smuggling, FGM, tax evasion, illegal H.M.O.s, and God knows what else.

Do you really want that on your conscience?

Not mention Noel Edmonds television career. :eek: For the sake of us all... don't pay it!

lafferdog

The date I have to submit by is mid june, and hearing a month later.

lafferdog

ok, I have the letter and cheque for the sar which I will send tomorrow, hopefully will get in time.

Am I doing a title search on the land registry site?

lafferdog

I am about to to a Title Register, and it is £15. Is that the right service?

Coupon-mad

That first version that you posted (now removed) reads like you've looked at witness statements, not defences.

You need a Gladstones defence like those linked in post #2 of the NEWBIES thread, not a WS yet. Not the story of what happened, but your defence. Why not also just search this board for 'Gladstones defence'? You will see a much more hard-hitting version re-hashed by people.

lafferdog

thanks for getting back, this is so out of my comfort zone, I have dyslexia so this is really difficult for me.

I have found a defence I am hoping is relevant to my case, I understand i will need to amend it, but would really appreciate some help on what to do next.

In my witness statement I have said I parked the car, so is point 3 redundant?

Is this at least the points I need to have in my defence?

---

1) It is admitted that the defendant, XXXXXX XXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle.

2) It is denied that any indemnity costs are owed and any debt is denied in its entirety.

3) 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.

4) This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors in their claim. The Particulars are not clear and concise, so I have had to cover all eventualities in defending a 'cut & paste' claim. This has caused significant distress and has denied me a fair chance to defend this claim in an informed way.

5) 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.

6) This claim merely states: “parking charges and indemnity costs if applicable” which does not give any 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'. 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'.

7) 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.

8) 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.

9) 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.

10) 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.

11) 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.

12. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement or even any licence to park without a permit, the Beavis case does not assist the claimant and in fact, supports my defence. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant. As the Supreme Court in the Beavis case held, ParkingEye would not have been able to recover any sum without agreement on the charge and any issue of trespass would be limited to the landowner themselves claiming for a nominal sum. The amount claimed is an extravagant and unconscionable penalty. Even if all the conditions had been met to disengage the penalty, the Supreme Court in ParkingEye v Beavis was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable ( ParkingEye v Somerfield).
In summary this case differs to 'the Beavis case' as:
i) The Private Parking Charge has not followed an "effectively binding" code of practice.
ii) The Claimant has no commercial justification
iii) The Claimant did not follow the IPC or BPA Code of Practice
iv) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
v) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

13) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott vs Loake(1982) in which there was irrefutable evidence of the drivers identity. The Protection of Freedom Act 2012 Schedule 4 has not being complied with and the claimant may not quote reasonable assumption. 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"(2015).

14) 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. The lack of diligence in this claim demonstrates admirably that at best a ‘copy and paste' is the closest a human, legally trained or not, came to the information transmitted from claimant to the Money Claims Online system. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.

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

16. 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, and also refused my asking for alternative dispute resolution via POPLA.

17. 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.

18. 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.

Coupon-mad

In my witness statement I have said I parked the car, so is point 3 redundant?

Do you mean in your original appeal (pre-court) you admitted being the driver? It makes no sense that you've already filed a 'witness statement' before a defence.

And yes, anything about the POFA is redundant as you admitted to driving (MISTAKE), so delete this:

3) 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.

I have only had time to skim-read it but that defence is much better at first glance, but needs something near the start that clarifies for the Judge, what the entire case is about and what your argument is, about the faded marking (nothing about you assuming it was OK, not asking random people in the car park, nor admitting to being in the wrong in any way - blame their markings).

lafferdog

Thanks so much for getting back, the constant anxiety this is causing me gets slightly less at each step forward.


I have added some points (3 and 4) giving an overview of the case, and removed the one mentioned above.

Should i include the scans of the appeal I sent and letters from them? and the photo of the hatchings?

Any better?

1) It is admitted that the defendant, XXXXXX XXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle.

2) It is denied that any indemnity costs are owed and any debt is denied in its entirety.

3) The hatched markings in the car park that are in question are severely faded, and due to the nature of the floor in the carpark are not very visible. The area where the hatched markings are does not block any through passage and so parking there would cause no inconvenience. I have attached photos to support this.

4) The appeal process which was explained on the ticket was followed by the defendant but was not followed through by the prosecution and at no time was the £60 fine offered as described on the ticket.

5) This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors in their claim. The Particulars are not clear and concise, so I have had to cover all eventualities in defending a 'cut & paste' claim. This has caused significant distress and has denied me a fair chance to defend this claim in an informed way.

6) 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.

7) This claim merely states: “parking charges and indemnity costs if applicable” which does not give any 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'. 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'.

8) 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.

10) 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.

10) 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.

11) 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.

12) 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.

13. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement or even any licence to park without a permit, the Beavis case does not assist the claimant and in fact, supports my defence. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant. As the Supreme Court in the Beavis case held, ParkingEye would not have been able to recover any sum without agreement on the charge and any issue of trespass would be limited to the landowner themselves claiming for a nominal sum. The amount claimed is an extravagant and unconscionable penalty. Even if all the conditions had been met to disengage the penalty, the Supreme Court in ParkingEye v Beavis was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable ( ParkingEye v Somerfield).
In summary this case differs to 'the Beavis case' as:
i) The Private Parking Charge has not followed an "effectively binding" code of practice.
ii) The Claimant has no commercial justification
iii) The Claimant did not follow the IPC or BPA Code of Practice
iv) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
v) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

14) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott vs Loake(1982) in which there was irrefutable evidence of the drivers identity. The Protection of Freedom Act 2012 Schedule 4 has not being complied with and the claimant may not quote reasonable assumption. 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"(2015).

15) 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. The lack of diligence in this claim demonstrates admirably that at best a ‘copy and paste' is the closest a human, legally trained or not, came to the information transmitted from claimant to the Money Claims Online system. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.

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

17. 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, and also refused my asking for alternative dispute resolution via POPLA.

18. 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.

19. 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.

Lamilad

I'm confused by para 14. I thought, as per CM's comment above, you were dropping the 'not the driver' arguments after previously admitting to being the driver?

Have I misunderstood something?

lafferdog

Lamilad wrote: »

I'm confused by para 14. I thought, as per CM's comment above, you were dropping the 'not the driver' arguments after previously admitting to being the driver?

Have I misunderstood something?

I am the only one misunderstanding all this, thanks for pointing it out, any more help would be good

Do the first points I added seem right?