Court proceedings for auto repair visit

nosferatu1001

cant you post it here as text?
Dropbox is blocked where I am

beamerguy

nosferatu1001 wrote: »

cant you post it here as text?
Dropbox is blocked where I am

Just looked at it, it's very long ... why are you blocked ?

foofcat

Sure I can. I did Dropbox so that I wouldn't have to redo all the formatting on here. It is rather long (suggestions for making it more concise are welcome) but I didn't want to miss anything out and also added a fair amount of spacing to make it as readable as possible.

Here's the text for anyone who can't access dropbox:

IN THE COUNTY COURT
CLAIM NO: XXXXXXX
BETWEEN PARKING CONTROL MANAGEMENT (UK) LIMITED (CLAIMANT)
-and-
XXXXXXXX (DEFENDANT)

As the registered keeper of the relevant vehicle at the material time, the Defendant denies liability for the entirety of the claim, for each of the following reasons:

1) The Defendant was not, and could not have been the driver during the time of the alleged contravention.

a) At the material time, the Defendant was not in possession of the vehicle. The vehicle was with an auto repair garage on the day in question.

b) The Court’s attention is drawn to the distinction between the ‘registered keeper’ (‘RK’) and ‘keeper’ as defined in the Protection of Freedoms Act 2012 (‘PoFA’), Sch4, para 2 which states:

“Keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the “registered keeper.”

c) PoFA 4.1 states: ‘The Creditor has the right to recover any unpaid parking charges from the “keeper” of the vehicle.’

d) The Defendant will prove by way of a valid receipt that the garage had possession of the vehicle at the time and was thus ‘the keeper’ pursuant to PoFA, para 2.

e) This proof rebuts the presumption under PofA that the RK was ‘the keeper’ meaning the RK cannot be pursued even if the Claimant had complied with the Act – which is denied.

f) The Claimant is put to proof that the Defendant was driving or the keeper (rather than registered keeper) at the time of the alleged contravention.

2) Failure to comply with the conditions of Schedule 4 of the Protection of Freedoms Act 2012, with regards to keeper liability and valid Notice to Keeper.

a) Proceedings to recover the ‘unpaid parking charge’ were issued by the claimant on XXXX.

b) In an email dated XXXX – three months before the Claimant had begun proceedings – the Defendant informed the Claimant’s Agent who the driver of the vehicle was at the time of the parking event. This removed any right the Claimant had to pursue the RK under the provisions of PoFA (Sch4, para 5.2).

c) In their reply dated XXXX, the Claimant’s Agent gave false information to the Defendant stating it was ‘too late’ to name the driver and that the Defendant could still be pursued under PoFA. The Claimant themselves stated it was ‘too late’ in a letter sent to the defendant dated XXXX, four months before they filed proceedings.

d) This selective citing of PoFA 2012 was a misrepresentation that can only be viewed as an attempt by the Claimant and their Agent to intimidate the Defendant into paying their baseless charge.

e) The Defendant has reasonable belief that the Claimant has breached her right to data protection by passing the Defendant’s details on to Gladstones Solicitors after the Defendant had already discharged liability and named the driver.

f) Such conduct by a professional parking company and serial litigant, with full knowledge of the relevant laws, is clearly vexatious and crosses the threshold for unreasonable behaviour, pursuant to CPR 27.14(g).

g) The Notice to Keeper (‘NTK’) dated XXXX did not specify the duration of time in which the parking event took place, a requirement of PoFA (Sch4, para 9). Further to this the timestamps on the evidence on the Claimant’s website read 16:36 and 16:37, yet the time of incident on the website is 17:11. The Defendant respectfully requests the Court ask the Claimant to clarify these discrepancies.


3) Failure to comply with PoFA conditions regarding the location of the event and authority of the Claimant.

a) PoFA stipulates that Sch4 only applies if the contravention took place on ‘relevant land’ pursuant to para 3.1.c of Sch4, wherein the following is not considered to be ‘relevant land’:
Any land (not falling within paragraph (a) or (b) on which the parking of a vehicle is subject to statutory control.

b) On the road in question, there is Network Rail signage which states “any parking is prohibited at all times in accordance with Railway Byelaw 14.’ As Byelaw 14 applies to the entire road, the Defendant has reason to believe that the location in question does not constitute ‘relevant land.’

c) The Defendant has reasonable belief that Claimant is not the landowner – merely an agent claiming to act on behalf of the landowner. Civil proceedings in this case are moot, as it is for Network Rail (the landowner) to pursue the driver of the vehicle under Byelaw 14 within six months of the alleged contravention. The Claimant has no authority or right to issue charges on this land in their own name and they have no rights to bring this case.

d) In the absence of strict proof from the Claimant, the Defendant submits that the Claimant was unauthorised to display their signs on this road, or to pursue either the registered keeper or whoever might have been driving at the time of the alleged contravention due to the conditions set out in PoFA, Sch4, para 3.1.c.

e) The Claimant has reasonable belief that the Claimant initially breached the Defendant’s right to data protection by requesting details of the registered keeper of this vehicle from the DVLA in the first instance, as they had no authority to do so on the road in question.


4) The Claimant did not have a valid contract with the driver at the time of the incident and cannot claim loss of any kind.

a) The Claimant’s sign stipulates: ‘No parking or waiting in this roadway, paved or yellow lined areas either wholly or partially at any time.’ The Claimant’s own sign confirms that there was no contractual permission offered. Thus, there could not have been a contract – nor a breach of any such contract.

b) In B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W, and B4GF26K2 PCM (UK) v Ms L, the judgment concluded in para 20 that ‘there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what PCM were not giving to people who parked on the roadway.’

c) This case distinguishes itself from ParkingEye v Beavis because unlike that case, the Claimant made no offer (time-limited or otherwise) for drivers to park their vehicles in the location in question. The Claimant cannot claim loss of any kind.

d) Further to this, the Claimant’s own photographs show that even with vehicles parked on both sides of the road, there was no obstruction to passing vehicles. The Claimant cannot claim loss on the basis of impediment to other vehicles.

5) Inadequate Particulars of Claim.

a) The Particulars of Claim fail to fulfil CPR 16.5 because they do not include a statement of the facts on which the Claimant relies, only referring to a parking charge with few specifics and little to no description. The Particulars fail to establish a cause of action which would enable the Defendant to prepare a specific defence.

b) The Particulars of Claim do not specify whether they consider the Defendant to be the driver or simply the RK of the vehicle – notable through the generic usage of ‘and/or.’ As outlined above, the Defendant had already discharged liability and named the driver in accordance with PoFA before these proceedings were initiated. Had the Claimant instead pursued the correct party, the Particulars would have been able to specify whether the Claimant considers the Defendant to be the driver or the RK.

c) There is no detail about why the Claimant is pursuing this course of action against the Defendant besides a generic allegation that the Defendant ‘breached the terms of parking.’ There is no detail about which terms were breached and how.

d) The Claimant has added unrecoverable sums to the original parking charge, including an additional £60 to the original alleged charge of £100 citing ‘damages and indemnity costs ‘if applicable,’ a legal fee of £50, and interest.

e) In the absence of strict proof that such damages or indemnity costs were incurred, and in light of the above points that the Claimant was unauthorised to pursue this matter, the Defendant denies that the Claimant is entitled to any such costs.

f) It is believed that the Particulars of Claim are based on templates – to wit, use of terms such as ‘if applicable’ and ‘charge(s).’ It is the Defendant’s reasonable belief that the Claimant has not incurred £50 in legal fees to pursue an alleged original debt of £100. The Defendant denies the Claimant is entitled to any interest whatsoever.

6) For all the reasons outlined above the Court is respectfully invited to strike out this claim as being entirely without merit.

The Defendant believes the facts stated in this Defence Statement are true.


[Signature]
[Name]
[Date]

nosferatu1001

I would move 5) to the top a sa preliminary matters section. Logically if their claim has crap foundations you talk abou thtose first, as it undermines everything

"1) The Defendant was not, and could not have been the driver during the time of the alleged contravention.
"
I would say "The Defendant was neither the driver nor the keeper at the material time"
That way you get it across youre dealing with both.

foofcat

Ah, brilliant suggestions, nosferatu1001!

Totally agree about moving section 5 to the beginning because ideally I'd like them to strike it out. I haven't seen any other Defence Statements that have a "preliminary matters" section, I'm guessing it doesn't need to be numbered and should be formatted like a preface?

Also I'm not so confident about that section because it seems to me that Gladstones were careful to include certain required information in their (very brief) PoC. Does anyone have advice or experience about using CPR to get a strikeout? I've looked at the rules and Gladstones don't seem to have hugely violated them.

nosferatu1001

Number everything, if in doubt. Then it can be referred. to
Ive seen a fair few on here which have "preliminary matters" at the top.

Yes, of course they violated them

There is no Cause of Action listed
there is no certainty given - they go after the defendant who was the driver and or keeper, and usually have something about they complied with POFA or the defendant is the driver, etc.

They dont include a copy of the written contract they are reliant upon.
They dont include sufficient detail of the claim to enable someone to defend it. they never do. You also state how many characters of the allowed 1080 they have used, to point out that even if they blame MCOL box being small, they could have written more in!

foofcat

Okay, I see. I'm going to spend a bit of time tonight digging out some other examples to help me figure out the formatting.

And thank you (broken record) - that's made me feel a bit more confident about the basis of requesting a strike out based on the PoC. I'll spend a bit of time tomorrow redoing it to really stress that point.

Thanks again so much for the help

foofcat

Okay, so I realised that my deadline is on Sunday, and ended up submitting my statement based on the revision suggestions from nosferatu. I'm up against it currently with work things so instead of posting/formatting the text here, I'm going to paste the dropbox link here in case it's of use to anyone else (though it's still far too lengthy for my liking).

Here is the link.

Can't thank everyone enough for the help so far. Sadly I think you've not seen the last of me yet because from reading other posts this seems likely to go all the way to court and I'm sure I'll need guidance for my witness statement and preparing for court... if anyone's willing and able to advise!

Thank you again

Lamilad

Okay, so I realised that my deadline is on Sunday, and ended up submitting my statement

If you're deadline for submission falls on a weekend or bank holiday you have until 4pm the next working day to submit, so you needn't have panicked.

Doesn't matter that it's lengthy, better to have a thorough defence than the '2 liner' we heard about the other week [ needless to say, that person lost in court

I'll be surprised if they don't discontinue this - they have no chance IMO. What's the situation with the garage owner - will he write a statement admitting he/one of his employees parked the vehicle?

foofcat

If you're deadline for submission falls on a weekend or bank holiday you have until 4pm the next working day to submit, so you needn't have panicked.

Oh dear... but in a way, I'm relieved because I was having anxiety dreams about missing the deadline (haha) and at least I can relax after work tonight for the first time in weeks (for now at least).

Doesn't matter that it's lengthy, better to have a thorough defence than the '2 liner' we heard about the other week [ needless to say, that person lost in court

2 lines!? That's made me wince...No, I'm such a wordy git, that would never be a problem for me anyway.

I hope they do discontinue it. If they do, I'll start looking into the DP breach aspect properly. In terms of the garage owner, I can ask but I'm skeptical he'll be willing to provide anything that includes / admits to the name of their (ltd) company so it may be more damaging than helpful to submit anything from them... I'll have a think about it.

Thanks again Lamilad. I'm boggled by how generous you've been with your time, and very grateful.

By way of a proper "thank you" to this forum, would it be helpful for me to create and share a defence statement template that automatically takes care of formatting aspects? I could have a field at the top for people to enter their claim number, and some dummy text that people could easily replace..? One thing that took up some time was trying to get my numbering to do what I wanted it to do (alignment, formatting etc). so I wondered if it would take some of the faff out of that side of things. Just a thought .