Help please - Formal Demand Letter from CPM

Amaka123

OK, I have now received my claim form and just completed the Acknowledgement of Service. I have put together a draft defence but was wondering if someone could have a look at it for me. I have read lots of other defences and so I hope this is along the right lines. Any help would be greatly appreciated.

Thanks in advance.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

3. The facts of the matter are that the ‘land’ which forms the basis of the current claim consists of a street which changes from a ‘public’ road to a ‘private’ road part way up the street. There are no signs indicating when the switch from public road to private road takes place. Further up the street (of which the defendant did not pass) there are a relatively small number of poorly marked ‘parking conditions’ signs. Given this lack of clarity regarding how or where the public is, or is not, allowed to park on this street, and whereby it switches from ‘public’ road to a ‘private’ road no contract can be construed from the Claimant's signage, under the contra proferentem principle.

4. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

5. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. The Defendant didn’t actually drive past any of the Claimant’s signage where they parked. The closest sign to which the Defendant parked is placed at a low height and given that the street is often full of parked vehicles the sign would be obscured from view of any passing driver. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

7. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

8. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Statement of Truth:

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

Name
Signature
Date

KeithP

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

Redx

Change 7) by using all the paragraphs by coupon mad posted in the thread by beamerguy on abuse of process, then renumber all paragraphs

Le_Kirk

Redx wrote: »

Change 7) by using all the paragraphs by coupon mad posted in the thread by beamerguy on abuse of process, then renumber all paragraphs

I have been advising this for a while now but today came across this by Johnersh. I am confused now and not sure whether to advise posters of this or not.

Amaka123

Issue date is 17th July 2019. Yes it's from County Court in Northampton.

KeithP

Amaka123 wrote: »

Issue date is 17th July 2019. Yes it's from County Court in Northampton.

With a Claim Issue Date of 17th July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 19th August 2019 to file your Defence.

That's over four weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Coupon-mad

Le_Kirk wrote: »

I have been advising this for a while now but today came across this by Johnersh. I am confused now and not sure whether to advise posters of this or not.

I think it's personal preference and I favour attacking the costs in detail.

Johnersh is a solicitor and recommends not putting something that seems to be telling a Judge what to do.

I respect and understand that, but we've seen for years, that County Court Judges are showing themselves time & again to be clueless about those fake costs, so I wanted them to see it written down in detail in defences.

And it gives the OPs a crib sheet to explain at their hearings, why the costs are disallowed (POFA and Beavis and the ATA/DVLA £100 ceilings, plus the CPRs about double recovery and proportionate costs). Rather than having to think on their feet, there it is in their defence, verbatim.

Too many Judges don't seem to give a toss about the proportionality or spot the double recovery lie. I want them to give a toss, or at least give the costs a moment's thought.

Johnersh and other legally qualified people have also told us not to put case law into defences. But specifically for forums, IMHO there is method in the madness by doing so.

It means the OPs here are armed with that info in their defence from the start and instead of us having to spend hours talking them through case law for the first time at WS, they might just already be halfway there, from their reading.

Having already helped with their defence, the hope is that well prepped OPs get the fact that they are meant to file the case law that was mentioned in the defence, at WS stage, and are halfway there with little WS help needed. That's how I see it.

Legally qualified posters such as bargepole have also said that we shouldn't be telling posters not to have a little chat with the rep at their hearing before they go in, as it's a useful chance to narrow the issues.

My answer to that is, that's fine for an experienced lay rep or very confident OP, BUT it is daft advice for your average poster here who will have no idea what to say when cornered, might say the wrong thing/accept court papers ad hoc or worse, be persuaded to settle, under threat 'you are going to lose and pay huge costs' or 'your defence is pants/copied from t'internet and the Judge will hate you...'!

So the above are 3 instances where what I tend to advise in practice on here, is not what I know a legally qualified poster might say.

But there is reason behind it to get people to where they might win and we can't spend the time we spend on defences, on WS as well. We'd drown if we had to start again and coach people massively on new things at WS stage.

[Deleted User]

Johnersh and other legally qualified people have also told us not to put case law into defences.

Not quite. I've no problems with arguing fake costs or referring to the names of cases - sorry if that wasn't clear. My point was that it's enough to add after the legal arguments about breach of the indemnity principle (which must be made) something like: "indeed in X v Y At Southampton CC [a case also brought by PPC] similar costs were held to be an abuse of process, culminating in the strike out of the claim."

You've then made the argument and can talk through the judgment at the hearing.

My key objections are:

1. Losing your best arguments in a sea of commentary about other cases; and
2. As Couponmad summarises - appearing to tell a judge what to do. The strike out cases are superb, but it's a rare power. Perhaps more likely is to strike the costs and to hear the argument.

There's a balance to be struck and, of course this has some art to it rather than pure science. Hence I'm not too bold in calling anyone out as absolutely wrong. Clear and concise should be a target, which is why I prefer referring to rather than quoting extensively from, relevant cases.

Not every case is the same and everyone needs to be happy with their defence. Happy drafting!

Finally even if you lose, you can still argue about the bolt-on costs and the claimed costs. Those arguments might include:

1. Rejecting the bolt on costs (seeking the excursion of the £60 added)
2. Rejecting the interest (this is calculated on the PCN but also upon bolt on costs too. If the bolt-on £60 goes, so does any interest claimed on it. Further, the £60 bolt on is usually added later - but interest is claimed on the whole sum backdated to the parking incident. Basically, on any view, the interest is incorrectly calculated.
3. It's worth a go, even if you've lost, asking the court to make "no order for costs." Whereas the loser normally pays the winner's costs, if you've managed to exclude the 50% uplift the PPC routinely seeks, the argument is that they have lost part of their claim and should not be permitted to recover the costs of that. Further, that part of the claim should never have been pursued. They have verified the claim with a statement of truth when they must've known the costs were never incurred and there was no basis to claim them. As such no order with each party bearing their own costs is appropriate.

Coupon-mad

Thanks Johnersh, good tips for people about to attend a hearing. I like this:

It's worth a go, even if you've lost, asking the court to make "no order for costs."

Whereas the loser normally pays the winner's costs, if you've managed to exclude the 50% uplift the PPC routinely seeks, the argument is that they have lost part of their claim and should not be permitted to recover the costs of that. Further, that part of the claim should never have been pursued.

They have verified the claim with a statement of truth when they must've known the costs were never incurred and there was no basis to claim them. As such no order with each party bearing their own costs is appropriate.

[Deleted User]

Thanks. It may not work as an argument, of course, but if everyone made that submission and it worked only half the time, it'd still be worthwhile....