Notice of Proposed Allocation

starnold444

We have receive a Notice of Proposed Allocation to the Small Claims Track, how do we respond in the box where it says do you agree?

Below was the letter we submitted as part of our original defence to the original Claim form.

I have read the newbies post 2 but it doesn't explain how to respond to the Notice of Proposed Allocation?

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

1. The Claim Form issued on the 11th October 2017 by Civil Enforcement Limited was not
correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited (Claimant’s Legal Representative)”.

2. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

b) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

c) The Schedule of information is sparse of detailed information.

d) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs.

e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

f) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

(i) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
(ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
(iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
(iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
(v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
(vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
(vii) If Interest charges are being claimed, the basis on which this is being claimed

g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.!

Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £250.22 for outstanding debt and damages.

4. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

5. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

a) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.

b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.

c) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

(i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
(ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) It is believed the signage and 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 by an authorised party using the premises as intended.
(iv) 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.
(v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

d) BPA CoP breaches - this distinguishes this case from the Beavis case:!
(i) the signs were not compliant in terms of the!font!size, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) there is / was no compliant landowner contract.

6. No standing - this distinguishes this case from the Beavis case:
It is believed Civil Enforcement do not hold a legitimate contract at this car park. 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.

7. No legitimate interest - this distinguishes this case from the Beavis case:
This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.

8. 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.
9. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

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

(a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 11th October 2017.

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

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 confirm that the above facts and statements are true to the best of my knowledge and recollection.

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nosferatu1001

Well yes it odes. You have to agree to small claims - its the appropriate track.
Given you only have 2 posts, does this relate to another thread somewhere?

System

Here is what you do. Download a copy of the N180 form here https://formfinder.hmctsformfinder.justice.gov.uk/n180-eng.pdf

Fill it in (see below) and send a copy to the court and to the other side

A1 = Say NO to mediation. Mediation is run by a commercial company on behalf of the courts and their success is measured by how many cases are kept out of court. They are not interested in the merits of the case, only whether you will pay or not. So say No.

B = fill in all the details, your name, your address, etc. This is the address that all the paperwork will be sent to. If you are moving home within 6 months make sure you have mail redirection in place. You will get a default CCJ if the paperwork doesn't get to you as the Courts see it as your responsibility to give a correct address.

C1 = YES to small claims track

D1 = name of your local County Court – unless you are a Limited company, the case files will be transferred there. They will ask for theirs but protocol dictates it is your court.

D2 = NO to expert evidence

D3 = 1 witness (or more if you are going to get another person to provide a statement)

D4 = Put down the dates of any pre-booked holidays, NO to interpreter (unless you need one)

You send a copy to the courts and another copy to the Claimant company. Keep a copy for yourself. There is a long delay (20+ weeks) between this form and an actual day in court.

starnold444

Yes I saw that bit but I wasn't sure what I am supposed to put in the box "If No, Say why".

Plus I only received the POC after submitting my original defence to the Court Claim form, is that normal? I wasn't sure from the original post(s).

This is my 1st and only thread on this claim as I managed to get the letter etc without having to start a thread

starnold444

Thanks, will it always go to court?

System

"If No, Say why".

You've said it. The Claimant has not followed Pre-Action protocol and you are uncertain of the basis of the claim and whether the Claimant has any intent to follow procedures in the future.

starnold444

Confused....So I should agree to go to small claims or not based on my letter above?

starnold444

As they didn't follow the pre-action protocol by providing me with the Particulars of Claim before submitting the claim to the court does that mean I should not agree with it going to small claims court?

The POC where sent to me on 11th November (envelope) but are dated 11th Oct (letter)

Loadsofchildren123

Is this CEL suing you?


There is a big scam going on at present with them serving their PoC late, litigants in person don't realise this because they don't sit and pour over the rules every day..... now that we know about it, the Newbies thread has been updated. But this is too late for you.


So, what you should have done (but don't worry, it's not fatal) is NOTHING AT ALL until those PoC were received. Then you should have filed your AoS followed by your defence.


The question now is - is there anything in the PoC which you didn't deal with in your defence?


If the answer to this is no (I understand CEL send draft PoC with the LBC anyway so you would have known how they were making out their case) then you still need to draw the late service of the PoC and their backdating (assuming they were as they are in everyone else's threads) to the court's attention in a letter which you send with your DQ - the complaint you need to make depends on whether their PoC were late or not. See the advice given on this thread yesterday:
https://forums.moneysavingexpert.com/discussion/5727770
and see also RustyRascal's thread.


If the answer is yes, then with your DQ you need to send a letter to the court asking for it to give you permission to file an Amended Defence.


Explain that you didn't realise that under Rule 9 and 10.3(1)(a) you should not have returned your AoS until after the further PoC were served, nor should you have filed your Defence. Your Defence was served on x date, the PoC on y date (z days later than they should have been served according to rule 7.4(1)(b)). Explain that the reason you made the mistake was because MCOL sent you the response/defence pack with the Claim Form, whereas it shouldn't have been provided to you until the further PoC were served (rule 7.8(1)(a), which was rather misleading and led you to believe you had to acknowledge and defend straight away.


It is prejudicial to you (a litigant in person) for the C to be allowed to rely on PoC which not only were filed late, but which you had not seen when you drafted your defence, without you being given permission to file an Amended Defence.


Say in the letter that the court has the power to make such an order of its own volition, exercising its inherent case management powers under rule 3.3(1) and (4).


You might also ask the court to order that witness statements be served sequentially, rather than exchanged, because the further PoC and the LBC before it are so vague that you still don't understand the claim fully (eg they claim you are in breach of contract but have not provided a copy of all of its terms).

Loadsofchildren123

agree to small claims


you need to urgently read up on the current issue with the mass backdating of PoC by CEL, which I assume is the PPC in your case. Read as many other current CEL threads, there are quite a few of them, and look at the two I mentioned above.

starnold444

Thank you and read through the threads.

I have covered everything in my defence so will now review the letter from the other thread to point out that the PoC was received late and therefore MCOL haven't upheld their process and should be struck out.

How shall I respond to my DQ? Shall I say No to agreeing to the Small Claims court and ask them to review my letter/email about the late POC?