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Coupon-mad

jrc123 wrote: »

HI Redx

claiming I will be doingI read I can claim upto £95 plus travel plus parking etc.

But I also read about making a claim after about taking my data? stress? being a con company?

is this something I can do? or any posts relating to this?

Did you manage to have a look at my defense?

thanks

If you are serious about a counter-claim, read Henry Hippo's threads on pepipoo. One is about byelaws land and still ongoing with a hearing happening in a few weeks, and one has been won already. Both his cases included a counter-claim that I helped to write and the one that has been heard, was granted by the court.

It costs £25 up front to claim for a few hundred, but you would need to word it well, cite the right case law and explain the level of distress in detail, like Henry Hippo did on pepipoo forum.

should mention the original appeal where I stated I stopped when I was unwell , read the sign and drove off?

Yes and state that this is on all fours with Vine v Waltham Forest (search the forum for defence Miss Vine to see how people have used that case).

Your defence is very wordy at the start. I would cut out the waffle. Here is an example I wrote the other day, where only the first 2 paragraphs mention the robo-claim/lack of POC issue:

https://forums.moneysavingexpert.com/discussion/comment/74116029#Comment_74116029

HTH

jrc123

Morning all,

I have updated my defence as Coupon Mad mentioned above.
*Points 1 + 2 I have change to less word robo-claim/lack of POC issue
*Point 4 - quotes Miss Vine.

Is this ok submit now?

I have quoted

*Byelaws
*Roboclaim, lack of info
*Miss Vine

Are there any old cases where someone has put they have appealed prior?
Should I quote the Beavis case? if so what part?
Should I quote about the inflated costs now at over £250+

---

Claim Number XXX
Between:
XXX Limited v XXX

I am XXXXXXXXXXX, the defendant in this matter and registered keeper of vehicle XXXXX. I currently reside at XXXXXXXXXXXXX.

I deny I am liable for the entirety of the claim for each and every one of the following reasons:


Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to fully engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation. The Claimant failed to respond to the Defendant's letter dated 6th December 2018, asking for more evidence, and merely proceeded to issue a claim.

Background
3. The Defendant further denies that any contract was formed because the driver did not "park" according to the ordinary meaning of that word or according to the definition in POFA; the driver merely drove into the site, read the sign which wasn’t accepted and exited the site. A period of only 2 minutes passing between the time of entry and the time of exit recorded by the Claimant. The driver cannot therefore have accepted any contractual terms (if any, which is denied) that were offered by the Claimant. Of which there is evidence shown in photos of the driver reading the sign, not accepting the contract by driving off.

The IPC code of conduct states that a grace period (15.1 & 15.2) must be allowed in order that a driver might spot signage, go up to it, read it and then decide whether to accept the terms or not. A reasonable grace period in any car park would be from 5-15 minutes from the period of stopping. This grace period was not observed and therefore the operator is in breach of the industry code of practice. Additionally no contract can be in place by conduct until a reasonable period elapses.

(15.1) Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.

(15.2) Drivers should be allowed a sufficient amount of time to leave a site after a pre-paid or permitted period of parking has expired.

4. In the Consumer Rights Act 2015 there is a 'Requirement for transparency':
(a) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(b) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
I submit the case 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' The driver had not seen the terms and consequently, was not deemed bound by them. This judgment meant that if terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked and the signs were obscured and could not have been seen and read from a driver's seat before parking.

In the case of the defendant no signs can be found at the entrance of the site, the first signs can only be seen when driving down the road and need to be read up close.

5. Photographic evidence shows the claimant going to read the sign at the time of 9:12am and not accepting the contract and leaving the site at 9.14am. This is within the time frame mentioned in point 3 prior.

Failure to set out clearly
6. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(a) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the IPC Code of Practice and no contract formed to pay any clearly stated sum.
(b) The signage was not visible, any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from an authorised party using the premises as intended.
(c) 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.
(d) Absent the elements of a contract, there can be no breach of contract.
(e) The signs were not compliant in terms of the font size, lighting or positioning.

7. The Claimant’s signage which is found further down the road and not at the entrance with the largest font at this site states “This Road is Private Property. Any parking is prohibited at all times in accordance with Railway Byelaw 14. Any Trespassers will force legal action. 24 hour access for railway use”. The claimant's claim should be struck out because any claim of breach of byelaws is a matter for Magistrates' court, and if the claimant is suggesting that they can run contract law alongside byelaws on 'non-relevant land' (as defined in the POFA) then it is a fact that a registered keeper/driver cannot be held liable in law, in any case. The case should also be brought forward by the landowner within 6months of which this time has now passed.

8. In addition, the Consumer Rights Act 2015 rules that if signage has multiple interpretation the interpretation most favourable to the consumer applies. It is clear from this the signage with the largest font should apply.

9. In the alternative, if it was held that the signage was contractually valid, it would be impossible for a motorist to have read the terms and conditions contained therein from a moving or stopped vehicle, and if the vehicle is stopped, the ‘contravention’ according to the Claimant is already committed.

10. The above point was recently tested in several cases regarding Hayes and Harlington station. There a similar situation arises as the vehicles were charged for briefly stopping but the signs are far away from vehicles and high up.

In all cases it was ruled that no contract was entered by performance as the signage could not be read from a vehicle. No transcripts are available but as PCM UK were the claimant in all cases they will be fully aware of the cases; C3GF46K8, C3GF44K8, C3GFY8K8 ,

11. BPA CoP breaches - this distinguishes this case from the Beavis case:
(a) the signs were not compliant in terms of the font size, lighting or positioning.
(b) sum pursued exceeds £100.

12. No standing - this distinguishes this case from the Beavis case:
It is unclear whether Parking Control Management (PCM) Limited hold a legitimate contract on this road. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

13. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

14. The claimant has added unrecoverable sums to the original parking charge. If Mr XXXXXXX (claimants legal representative who signed the form) is an employee then the Defendant suggests he is remunerated and the particulars of claim are templates, so it is not credible that £50 legal costs were incurred. The defendant denies the Claimant is entitled to any interest whatsoever.

Byelaws
15. Railway Byelaws –

As this land comes under railway byelaws this is not a claim to be brought by the Parking Control Management (PCM) Ltd but by the Train Operating Company which leases the land/or the landowner and the correct procedure is for such proceedings to be pursued in the magistrate’s court, not the county court.
The claimant's claim should be struck out because any claim of breach of byelaws is a matter for Magistrates' court, and if the claimant is suggesting that they can run contract law alongside byelaws on 'non-relevant land' (as defined in the POFA) then it is a fact that a registered keeper/driver cannot be held liable in law, in any case.
The IPC Code of Conduct 9.1 states; It is your (PCM Ltd) responsibility to establish whether any land upon which you operate is subject to any Byelaws. Where land is subject to Byelaws you must ensure that your practices are in accordance with them or, alternatively, that you operate a scheme that is not prohibited by them. PCM have broken this code as stated in the points above.

16. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a)Issued an erroneous claim to the defendant regarding an unknown vehicle, rendering their administration questionable.
(b) Failed to disclose any cause of action in the Claim Form issued on xxxxxxxxxxxxxx.
(c) failed to respond to a letter from the Defendant dated xxxxxxx requesting further information and details of the claim.

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

I believe the facts contained in this Defence Statement are true.

jrc123

hi all any comments?
any byelaws should I add?

thanks

Coupon-mad

DEFENCE

I am XXXXXXXXXXX, the defendant in this matter and registered keeper of vehicle XXXXX. [STRIKE]I currently reside at XXXXXXXXXXXXX[/STRIKE].

You need a heading 'DEFENCE' in the middle top, and do not need your address unless it has changed and the claim went to an old address.

Where you use an acronym like IPC, you must write it in full the first time, e.g.

The IPC code of conduct

should be

The International Parking Community Code of Practice

And it's not 'Conduct' it's 'Practice' read the right one here:

https://theipc.info/downloads

This (below) should be in point #3, maybe as 3.1

5. Photographic evidence shows the claimant going to read the sign at the time of 9:12am and not accepting the contract and leaving the site at 9.14am. This is within the time frame mentioned in point 3 prior.

This isn't written properly, the #6 interrupts your sentence:

Failure to set out clearly
6. Inadequate signs incapable of binding the driver

Remove this as they are not in the BPA:

[STRIKE]11. BPA CoP breaches - this distinguishes this case from the Beavis case:
(a) the signs were not compliant in terms of the font size, lighting or positioning.
(b) sum pursued exceeds £100.[/STRIKE]

Have you decided against a counter-claim? Your case is a bit like Henry Hippo's one v District Enforcement (and he has won a counter claim for £500 already in his other case). His transcript should be available soon - hopefully by May - as he's using some of the money to obtain it.

Are you not up for copying what he did and trying for £500 in your case, which IMHO, does lend itself to giving it a go?!

jrc123

Hi Coupon- Mad
thanks for the pointers I have amended this all now.

1. #6 This was just a number as point number 6 - should I take the number part out?
2. If i am happy to send my defense now is that ok even though there are over 28+ days to do so?
3. are there any byelaws I should add?
4. Gladstones responded to one of my letters for the LBC (hardly any details) but the second one they didnt, should i mention anything about the first one? i only mention the second.
5. I would like to counterclaim - do i do so seperately now or wait until after the trail?

thanks for all the replies as always

jrc123

is it this form link?
http://forums.pepipoo.com/lofiversion/index.php/t114450-200.html

Coupon-mad

That's one of his cases, yes, that is the one he has won already. He shows what he used & said about the significant effects and detail of his distress and Vidal Hall, Halliday, Blamires, compensation et al.

He has his other one on the go, also with a counter claim in play, which is more like yours due to the land not being 'relevant land'. You can find his other case by clicking on his username when logged in.

Both show lots of detail of his defence, WS and counter-claim, I am sure. Well worth cribbing from!

jrc123

thanks I will do that now and have a read through..

just wondered if you saw these points:

1. #6 This was just a number as point number 6 - should I take the number part out?
2. If i am happy to send my defense now is that ok even though there are over 28+ days to do so?
3. are there any byelaws I should add?
4. Gladstones responded to one of my letters for the LBC (hardly any details) but the second one they didnt, should i mention anything about the first one? i only mention the second.
5. I would like to counterclaim - do i do so seperately now or wait until after the trail?

Coupon-mad

1. #6 This was just a number as point number 6 - should I take the number part out?

NO. The problem is it cuts though a sentence and makes no sense!

2. If i am happy to send my defense now is that ok even though there are over 28+ days to do so?

Defence. And you do not have 'over 28 days to do so', surely, counting from the date of service?

3. are there any byelaws I should add?

Not at this stage, you get to file your evidence like signage photos, byelaws, etc., at WS stage.

4. Gladstones responded to one of my letters for the LBC (hardly any details) but the second one they didnt, should i mention anything about the first one? i only mention the second.

Not really, it's not a game changer.

5. I would like to counterclaim - do i do so separately now or wait until after the trail?

You MUST counter claim NOW at the same time or it costs you a fortune to add it later (not worthwhile). Now, it costs you just £25 and you will need to send your defence & counterclaim by post with a cheque, or by email then phone the CCBC to pay by card over the phone to cover the fee at the outset, so it isn't struck out.

jrc123

noted on all the above.

I'm going to read through the Henrys counterclaim and decide

will report back