Is this a letter before court?

Dudleydave

Hi All,

Is there any further comments please regarding my Defence, it is only a first draft but would really appreciate any advice, guidance, corrections or amendments.


Thanks in advance.




In the County Court Business Centre
Claim Number: XXXXXXXX

Between:

XXXXXXX v XXXXXX




Defence Statement



I am xxxxxx xxxxxx, being the Defendant in this case. I am an unrepresented consumer with no experience of Court procedure. Should I not present my case as professionally as the Claimant's, I trust that the Court excuses my inexperience and reserves any criticism for the extremely sparse particulars filed by the Claimant's Solicitors.

This claim refers to parking incident at XXXXXXXX (named car park) on the XXXXXXX 2017.



1. As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons.

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

b). It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement. The Claimant is not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.


c). The outstanding time that is alleged to be unpaid for; which the Claimant states, I believe that allowing for this Grace period these minutes are negligible.

d). It is denied that there was a contract made between the Claimant and the driver through signage or that there was any agreement between the Defendant or driver of the vehicle and the Claimant.


e). The Claimant had stated that there was clear signage at the time of the incident, this is disputed, the Defendant states that since the incident the signage has been replaced with new boards and pay stations which suggest that the previous signage within the said car park were indeed inadequate.



2. The Claimants signs were in small print, the terms were illegible and a driver could not reasonably be expected to read and understand the terms of parking on entering and using the car park.



a). It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver. The signs were unclear and did not offer a contract to park. As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid.



b) The signs did not comply with the requirements of the Code of Practice of the British Parking Association to which the claimant is a member.



3. In the same Code of Practice to which the Claimant is a member of, it states a reasonable Grace Period at the end of the parking period should be a minimum of 10 minutes after the parking contract has ended.

4. The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis (2015) case. The Claimant as a third party firm incentivised to issue penalties, have any overriding 'legitimate interest' (like there was in the Beavis case) nor complex contractual arrangement that can disengage Lord Dunedin's penalty rule.

5. The Claimant has added unrecoverable sums to the original parking charge.

a). The Defendant also disputes that the Claimant has incurred £50 legal representative's costs to pursue an alleged £170 debt.



b). The Claimant described the charge of £50.00 "legal representative's costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.


6. The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed, adding further unexplained charges of varying amounts (£40, £70. £50, £25) with no evidence of how this extra charge has been calculated. This appears to be an added cost with no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.


7. If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

8. Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

9. At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1.38/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.



10. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.


11. The Claimant, despite repeated requests from the Defendant has not responded with:


a). The details of the claim (where it is claimed the car was parked, for how long, how the monies being claimed arose and have been calculated, what contractual breach (if any) is being claimed)



b). A copy of the contract with the landowner under which they assert authority to bring the claim



c). A copy of any alleged contract with the driver



d). A plan showing where any signs were displayed



e). Details of the signs displayed (size of sign, size of font, height at which displayed)
A detailed explanation of costs that you have added on to the original charge, what that represents and how it has been calculated





12. The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant disputes the claim. There has been nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs.




13. The Defendant asks that the court gives consideration to exercise its discretion to strike out or dismiss the case under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8) and/or for the claim having no realistic prospects of success.

14. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.


15. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

The Claimant has not complied with the relevant pre-action protocol.

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




XXXXXXXXX

Coupon-mad

Defence Statement

should be

DEFENCE

EDIT - 2020 - IF YOU ARE READING THIS OLD THREAD, STOP!

WE NOW HAVE A TEMPLATE DEFENCE AT THE TOP OF THIS FORUM.

Dudleydave

Many thanks CM

I hope my latest draft below addresses those errors.

Any other thoughts or comments prior to submitting?

In the County Court Business Centre
Claim Number: XXXXXXXX

Between:

XXXXXXX v XXXXXX

DEFENCE Statement

I am xxxxxx xxxxxx, being the Defendant in this case. I am an unrepresented consumer with no experience of Court procedure. Should I not present my case as professionally as the Claimant’s, I trust that the Court excuses my inexperience and reserves any criticism for the extremely sparse particulars filed by the Claimant’s Solicitors.

This claim refers to parking incident at XXXXXXXX (named car park) on the XXXXXXX 2017.

1. As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons.

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

b). It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement. The Claimant is not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.

2. It is denied that there was a contract made between the Claimant and the driver through signage or that there was any agreement between the Defendant or driver of the vehicle and the Claimant.

a).. The Claimants signs were in small print, the terms were illegible and a driver could not reasonably be expected to read and understand the terms of parking on entering and using the car park.

b). It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver. The signs were unclear and did not offer a contract to park. As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid.

c) The signs did not comply with the requirements of the Code of Practice of the British Parking Association to which the Claimant is a member.

d). The Claimant had stated that there was clear signage at the time of the incident, this is disputed, the Defendant states that since the incident the signage has been replaced with new boards and pay stations which suggest that the previous signage within the said car park were indeed inadequate.

3. In the same BPA Code of Practice to which the Claimant is a member of, it states a reasonable Grace Period at the end of the parking period should be a minimum of 10 minutes after the parking contract has ended.
a). The outstanding time that is alleged to be ‘unpaid for’ which the Claimant states, I believe that allowing for this Grace period these minutes are negligible.

4. The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis (2015) case. The Claimant as a third party firm incentivised to issue penalties, have any overriding 'legitimate interest' (like there was in the Beavis case) nor complex contractual arrangement that can disengage Lord Dunedin's penalty rule.

5. The Claimant has added unrecoverable sums to the original parking charge.

a). The Defendant also disputes that the Claimant has incurred £50 legal representative’s costs to pursue an alleged £160 debt.

b). The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.


6. The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed, adding further unexplained charges of varying amounts (£40, £60. £50, £25) with no evidence of how this extra charge has been calculated. This appears to be an added cost with no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
7. If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

8. Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

9. At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1.38/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

10. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.
11. The Claimant, despite repeated requests from the Defendant has not responded with:
a). The details of the claim (where it is claimed the car was parked, for how long, how the monies being claimed arose and have been calculated, what contractual breach (if any) is being claimed)

b). A copy of the contract with the landowner under which they assert authority to bring the claim

c). A copy of any alleged contract with the driver

d). A plan showing where any signs were displayed

e). Details of the signs displayed (size of sign, size of font, height at which displayed)

f). detailed explanation of costs that you have added on to the original charge, what that represents and how it has been calculated

12. The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant disputes the claim. There has been nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs.

13. The Defendant asks that the court gives consideration to exercise its discretion to strike out or dismiss the case under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8) and/or for the claim having no realistic prospects of success.

14. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.


15. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

The Claimant has not complied with the relevant pre-action protocol.

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

XXXXXXXXX

Dudleydave

H All

If everyone thinks my defence statement above is ok, I will go ahead and submit it?

I'm struggling to find where on this forum this has been mentioned but am I ok emailing my defence statement through?

Where and to whom would be correct?

Thank you again for your help and advice.

KeithP

You may have already said, but what is the Date of Issue on your Claim Form?


When he is happy with the content, the Defence should be filed via email as described here:

1) Print the Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not, you son should chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here.

Dudleydave

Hi Keith,

The date of issue is the 5th July, I think you stated in a previous response I have until the 4th August?

Thanks again.

nosferatu1001

You have 33 days from date of issue, as you have acknowledged

Yes, email, as stated on the newbies thread.

KeithP

Dudleydave wrote: »

Hi Keith,

The date of issue is the 5th July, I think you stated in a previous response I have until the 4th August?

Thanks again.

No.

What I said in post #32 was:

Having done the AoS, you then have until 4pm on Tuesday 7th August 2018 to file your Defence.

Dudleydave

Sorry my mistake, I did mean to write what you just said.

I think it is there now, unless anyone has any further comments?

Thanks again Keith

Dudleydave

UPDATE:

Hi All,

Things seem to be moving quite quickly since I submitted my Defence statement, The court acknowledged receipt stating a copy has also been served on the claimant letter also suggested the claimant may contact me to resolve the dispute.

Not so, the below email & letter from Gladstones soon followed.

Dear .........................

National Car Parks Limited

-v-

......................

We act for the Claimant and have notified the Court of our Client's intention to proceed with the claim.

Please find attached a copy of our Client's completed Directions Questionnaire, which will be filed with the court upon their request. You will note we intend to request a special direction that the case be dealt with on the papers and without the need for an oral hearing

This request is sought simply because the matter is in our Client's opinion relatively straightforward and the costs incurred by both parties for attending an oral hearing would be disproportionate.

You will note our Client has elected not to mediate. Its decision is not meant to be in any way obstructive and is based purely on experience, as mediation has rarely proven beneficial in these types of cases. Notwithstanding this, our Client would be happy to listen to any genuine payment proposals that you wish to put forward.

Yours sincerely END

Attached to this was their Directions Questionnaire with their answers to the following questions being....

Do you agree to this case being referred to the small claims mediation service? NO

Do you agree that the small claims track is the appropriate track for this case? YES

Are you asking for the courts permission to use the written evidence of an expert? NO

Are there any days within the next 6 months when you, an expert or a witness will not be able to attend court for the hearing? YES

Does this all sound normal? as ever any advice would be most welcome.

Many thanks