Notice of Proposed Allocation

starnold444

Dear Amanda

Claim number XXXX

Please can you confirm receipt of this complaint.

Regarding Claim Form XXXX I am writing to draw to your attention that the Claimant has deliberately backdated the Particulars Of Claim, which were served separate to the Claim Form pursuant to CPR Rule 7.4(1)(b).

The Claim form was issued on 11th October 2017, stating that the Particulars of Claim would be provided to me within 14 days after service of the claim form

The further Particulars of Claim and covering letter were sent under cover of 3rd November 2017. However, they were dated the 11th October 2017, but not actually posted until the 1st November 2017 and received on the 3rd November 2017.

The Particulars of Claim should in fact have been served on 25 October (14 days after service of the Claim Form). As such, they were served 6 days late. Please record the late service of the Particulars on the court file, and the true date on which they were served.


According to the court rules (Rules 9 and 15.4(1)(a) my Defence is not due to be filed until 14 days after the Particulars of Claim - in this instance 15th November.

The Claimant has made a poor attempt to conceal the actual date on which it served the further Particulars of Claim by backdating them by 6 days, together with the covering letter. This is clearly demonstrated by the post mark on the envelope they arrived in, which shows the date of posting as 1st November 2017, a copy of which I have provided as evidence The Civil Procedure Rules are quite clear - under Rule 3.8 the court should apply the sanctions unless the Claimant has applied for relief under 3.9.

I cannot fathom any reason for the Claimant having backdated its further Particulars of Claim, other than to try to gain an advantage by making it appear that I have filed my defense late, or by confusing me into having to rush to file my defense prematurely (which I did). This is a serious matter and I ask that this is formally noted on the court file.

This is a commercial Claimant pursuing many other claims of this nature. It must therefore have knowledge of, and understand, the Civil Procedure Rules and these sorts of blatant breaches should not be allowed because they prejudice Litigants in Person who are not versed in court procedures and the court rules. It is with some difficulty that I have understood the various obligations and time limits set out in the Civil Procedure Rules, as a Litigant in Person, whereas the commercial Claimant has no such excuse.

Yours Faithfully

starnold444

We have the DQ to fill in already but wanted to raise a complaint as well. There is nothing further to add to our defense from the letter we submitted.

Draft letter below and need to add in the bits from the complaint letter/email

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Claim Number: *********

I am ********, the defendant in this matter and was the registered keeper of vehicle (make model and reg). I currently reside at (first line of address).

I deny that the driver is liable for the entirety of the claim for each of the following reasons:

1. The Claimant has failed to serve particulars of claim timeously and the defence is prepared without prejudice to the defendant’s primary case that there is no claim to defend where the particulars are out of time and no application for relief from sanction has been filed.

The Claimant has made a poor attempt to conceal the actual date on which it served the further Particulars by backdating them by 16 days, together with the covering letter. Breach by the Particulars of Claim and the covering letter being backdated 11th October, whereas they were only posted on the 1st November and received on 2nd November. This is clearly demonstrated by the post mark on the envelope they arrived in, which shows the date of posting as 1st November, a copy of which can provide as evidence.

This is a commercial Claimant pursuing many other claims of this nature. It must therefore have knowledge of, and understand, the Civil Procedure Rules and these sorts of blatant breaches should not be allowed because they prejudice Litigants in Person who are not versed in court procedures and the court rules. It is with some difficulty that I have understood the various obligations and time limits set out in the Civil Procedure Rules, as a Litigant in Person, whereas the commercial Claimant has no such excuse.

2. The Claim Form issued on the 11th October 2017 by Civil Enforcement Ltd 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)”.

3. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). 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”,
b. This is a speculative serial litigant, issuing a large number of “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. Furthermore, the Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the “Letter before County Court Claim” should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. “Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure

iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided”.
e. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted
f. Alternatively, the Defendant asks that the Claimant is required to file Particulars 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 a reasonable time to file another defence.

5. 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.

a. 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) is the sum on the Notice to Keeper.

6. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 “legal representative’s costs were incurred.

7. 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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage “contract”, none of this applies in this material case.

8. In the absence of any proof of adequate signage contractually bound the Defendant then therefore cannot have been no contract and the Claimant has no case
a. The Claimant is put to strict proof 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. It is believed the signage was not lit 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
iii. 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
iv. 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

9. No standing – this distinguishes this case from the Beavis case:
a. It is believed Civil Enforcement Ltd 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.

10. 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.

11. 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.

12. It was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who clarified the fact that a registered keeper can only be held liable for parking events on private land if the parking operator fully complies with the POFA, Schedule 4, and not by presumption or any other legal argument.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:
• Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 11th October 2017.
• 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.

Loadsofchildren123

starnold444 wrote: »

The claim form issue date is 11th Oct.
The PoC sent to me has 11th Oct on the cover letter and 1st Nov on the envelope.
I received them on 3rd Nov.

Below are the updated sections - is that now correct based on the dates above?

The further Particulars of Claim and covering letter were sent under cover of 3rd November 2017 and the covering letter were both dated 11th October 2017. However, they were dated the 11th October 2017, but not actually posted until the 1st November 2017 and were therefore served received the 3rd November 2017.

The Particulars of Claim should in fact have been served on 30th 25th October (14 days after service of the Claim Form). As such, they were served 4 6 days late. Please record the late service of the Particulars on the court file, and the true date on which they were served.

According to the court rules (Rules 9 and 15.4(1)(a) my Defence is not due to be filed until 14 days after the Particulars of Claim - in this instance 17 November [OP, please count 14 days on from when the PoC were served.

The Claimant has made a poor attempt to conceal the actual date on which it served the further Particulars of Claim by backdating them by 21 6 days. This is clearly demonstrated by the post mark on the envelope they arrived in, which shows the date of posting as 1st November 2017, a copy of which I have provided as evidence. The Civil Procedure Rules are quite clear - under Rule 3.8 the court should apply the sanctions unless the Claimant has applied for relief under 3.9.

I cannot fathom any reason for the Claimant having backdated its further Particulars of Claim, other than to try to gain an advantage by making it appear that I have filed my defense late, or by confusing me into having to rush to file my defense prematurely (which I did). This is a serious matter and I ask that this is formally noted on the court file.

I've changed the dates.
Claim form dated 11 October is deemed served 5 days later, so 16th Oct, so PoC should have been served 30th, but weren't served until 3rd November - so they are backdated by 21 days (should have been dated 1 Nov, the day posted) and were served 4 days late.
PoC served 3 Nov means your defence should have been due 17th.

Loadsofchildren123

starnold444 wrote: »

Also is the 14 days working days or just 14 days

14 days (not working days)

Loadsofchildren123

Your letter at #23 is confusing because it is repeating much of your defence.


You need to focus it on your complaint about the backdated PoC which the court should not accept, and you should also run through their other breaches of the CPR. You should say that the late PoC should not be accepted absent an application under Rule 3.9 by the Claimant, and that it is your case that the claim should be struck out because of their multiple, blatant breaches of the CPR - which is where this point is relevant:


"This is a commercial Claimant pursuing many other claims of this nature. It must therefore have knowledge of, and understand, the Civil Procedure Rules and these sorts of blatant breaches should not be allowed because they prejudice Litigants in Person who are not versed in court procedures and the court rules. It is with some difficulty that I have understood the various obligations and time limits set out in the Civil Procedure Rules, as a Litigant in Person, whereas the commercial Claimant has no such excuse."


When you ask the court to strike out the claim entirely, you should say this:


Given the Claimant's multiple breaches of the CPR, I ask the court to give consideration, under its inherent case management powers, to strike out the claim. The court's powers to do so are contained in CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1.

If the court is not minded to make an order of its own volition, then the court has the power to treat this letter as an application rather than asking me to issue a Notice of Application – the power to do this is contained in CPR Part 23.3(2)(b) which provides specifically that the court may dispense with the requirement for an application notice.

The court’s powers to strike out a claim are contained in CPR Rule 3.4 and the “test” is if:
(a) the statement of case discloses no reasonable grounds for bringing a claim; or
(b) the statement of case is an abuse of the court’s process; or
(c) there has been a failure to comply with a Rule, Practice Direction or Order.
I have set out in this letter the Claimant's failures to comply with the CPR. Its failure to comply with the rules put me, an ordinary litigant in person, at a significant disadvantage. [and then put in the paragraph here that I've put in " " earlier in this post - add this to the end of it "Two examples of the prejudice caused to me is that I have been given no opportunity to consider the basis, or the strength, of the claim, and my defence to it, and no opportunity to engage in discussions with the Claimant with a view to reaching agreement or at least narrowing the issues, and the late service of the Particulars of Claim caused me to file an early defence, before I had sight of the Particulars."]

Loadsofchildren123

Just by way of clarification:
"under cover of" means the date of the covering letter - ie the letter sent with the PoC. So your "covering letter" was also backdated. It should have been dated on the day of posting, ie 1 November.

starnold444

Thanks for all your help LOC! Email has now been sent and will send the letter/email with my DQ response.

Just double checking I need to send a copy to CEL as well as the address on the DQ?

Loadsofchildren123

copy of what to CEL? The DQ? Not sure, the newbies thread will say. If you mean your letter, then yes I'd send it to CEL. CEL are a company which usually discontinues where it sees a fight being put up. So the more you show you're fighting the more likely they'll discontinue.

starnold444

Thanks.

Can you share a link to a draft letter to send alongside my DQ?

They have responded to my email to say

Good Afternoon

Please do not use this email address for court correspondence as it is not manned daily. Please forward your email to the correct email address: ccbc@hmcts.gsi.gov.uk

Regards

CCBC/MCOL/TEC/CAPS Helpdesk Manager
CCBC Northampton

starnold444

Can you provide me a link to a draft letter to send alongside my DQ? Sorry struggling to find one and have been searching the forums and your posts.