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BE LEGAL DEFENCE - Final Draft
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Supersaver2017
Posts: 51 Forumite
Hi guys, getting closer to a final draft now so if you all could take another look I would be most grateful.
Statement of Defence
1. The Particulars of Claim do not disclose any reasonable grounds for bringing the claim and as such, are an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 by failing to provide a copy of the contract or details of any agreement by conduct. The particulars also fail to describe how the amount claimed has been calculated and do not provide a copy of the contract or details of any agreement.
2. Practice direction 22 para 3.1 sets out who may sign a statement of truth. Para 3.10 states that ‘A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer’.
3. The claim is signed by ‘BW Legal’. This therefore does not comply with the requirements.
4. The claim arises from the Claimant issuing an invoice or ‘Parking Charge Notice’ for £100 to the Defendant’s vehicle xxxxxx on xx/xx/2014. The defendant has from the outset denied any liability in respect of the claim and has repeatedly requested that the Claimant provide evidence of any legal basis to their claim which the Claimant has to date failed to do.
5. The driver entered the registration of the car, paid the correct tariff, and the machine issued a ticket which unbeknown to the driver showed an incorrect registration of the car. The machine shouldn't allow an incorrect registration to be printed on the ticket and indicates a malfunction between the P&D machine and Excel’s systems.
5.1 If the ANPR was directly linked to the P&D machine/system, it would be impossible for anything other than a valid registration number to be printed on the ticket.
5.2 The machines Excel use nationally seem particularly prone to failure, and several complaints that charges have been issued even when a valid ticket has been purchased have been made in other attempts made by the Claimant. It is also noted that when these failures have occurred previously it has been refused to cancel charges even when CCTV evidence from nearby shops show tickets were purchased.
6. The Claimant has, since June 2014, subjected the Defendant to a barrage of letters, demanding ever increasing sums of money but refused to respond to reasonable requests to provide the evidence necessary to support their claim.
6.1. These letters have often misrepresented the legal process, in attempts to threaten and intimidate the Defendant into paying the amount demanded. Numerous requests have been made for letters which provide the required information in line with the Pre-Action protocol, which have all been ignored and replied to in the form of template letters.
6.2. It is apparent that this Claimant has made no attempt to improve its misleading and aggressive business practices and unclear signs, since the cases of:
(i) Excel v Hetherington-Jakeman* (2008) where the Judge found the demands were not sent to inform a driver or narrow any issues, but were intended to "frighten or intimidate", and
(ii) Excel v Cutts** (2011) where the Judge ruled that Excel's signage was deficient and later Excel's owner publicly derided the court ruling as "an embarrassment to the judicial system" describing DDJ Lateef, as "not fit to serve the civil court."
6.3. The Claimant is a serial litigator and the issuing of this Claim without any legal basis appears to be another attempt to intimidate the Defendant, who does not have the legal expertise of the Claimant, into paying an unsubstantiated charge. This shows a complete lack of respect for the court process and also demonstrates the failure of the Claimant to attempt to mitigate losses, by escalating a £1.00 parking fee (which was in fact paid) into a demand for £254.90.
6.4 The Claimant has further failed to comply with Practice Direction by refusing to respond to the Defendants request to use an independent form of dispute resolution.
7. The Claimant was a member of British Parking Association in June 2014, and in order to access the data of a registered keeper from the DVLA, BPA members must fully comply with the applicable Code of Practice, which they have failed to do with respect to their signage in this case.
7.1. It is worth noting that this Claimant has previously been suspended by the DVLA from accessing registered keeper details, due to failure to comply with the Code of Practice in terms of the words on its signs.
7.2 Namely points 19.1 - When you issue a parking charge notice the charges you make have to be reasonable arising from enforcement under three different circumstances: when a motorist breaks the terms and conditions of a parking contract, when a motorist trespasses by parking without permission, agreed charges that are advertised in the contract; for example, for an overstay.
8. It is denied that the Claimant is the landowner of the land in question or that they have any other right or proprietary interest in the land.
9. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and issue enforcement proceedings in their own name and can demonstrate a clear chain of authority from the landowner.
9.1 In the absence of strict proof, I submit that the Claimant has no case and invite the court to strike the matter out.
10. If the court is minded to accept that the Claimant has standing, then I submit that the signage at the site at the time and date of the alleged event was insufficient to reasonably convey a contractual obligation and also did not comply with the requirements of the BPA Code of Practice to which the Claimant was a signatory at the time. The signage was inadequate in terms of the following:
• Lack of illumination of signage (and the car park), poor visibility
• Lack of clarity and prominence of terms and conditions
• Illegible text due to font size, density, colour and complexity
• Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
• Lack of relevant terms and conditions, such as the fees for parking
• Inadequate positioning of signs, at unsuitable heights
11. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, particularly during the hours of darkness, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the night in question.
12. In the absence of any signage that contractually bound the Defendant then there can have been no contract, the Claimant has no case, and as such, the court is invited to dismiss the claim.
13. Even had the terms and conditions been sufficiently prominent, terms which are unfair are not legally binding. Terms which are considered unfair include requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation. It is also unfair to impose disproportionate sanctions for breach of contract. A charge of £100.00 for an assumption of failing to pay a sum of £1.00 (which was in fact paid on the day) from being prominently displayed in the first place can be considered a disproportionate sum. I again refer to the BPA Section 20.1 When a vehicle is parked in a private car park, the normal rule is that the driver is responsible for paying the tariff fee (if any) for parking, for following the terms and conditions which apply, and for paying any parking charges. As the payment was made this is disputed.
14. It is anticipated that the Claimant may seek to rely on the Supreme Court ruling in the case of Parking Eye v Beavis. This case can be easily distinguished from ParkingEye v Beavis as Excel Parking have not demonstrated any commercial justification for the amount being charged and the wording of the notices was not clear, and a comparison should not and can not be made between the supreme and county court.
15. The Claimant is attempting to claim additional charges such as legal costs of £50.00. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.
16. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The keeper can only be held liable if the claimant has fully complied with the strict requirements. The Claimant has not established whether the Defendant was the driver on the day in question and have not clarified whether they are pursuing the Defendant as Keeper or as Driver.
17. The Claimant is put to strict proof of all his assertions
18. Considering all the above circumstances, I respectfully ask that the court dismiss the claim.
I believe the facts stated in this defence are true.
Statement of Defence
1. The Particulars of Claim do not disclose any reasonable grounds for bringing the claim and as such, are an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings. The particulars fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5 by failing to provide a copy of the contract or details of any agreement by conduct. The particulars also fail to describe how the amount claimed has been calculated and do not provide a copy of the contract or details of any agreement.
2. Practice direction 22 para 3.1 sets out who may sign a statement of truth. Para 3.10 states that ‘A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer’.
3. The claim is signed by ‘BW Legal’. This therefore does not comply with the requirements.
4. The claim arises from the Claimant issuing an invoice or ‘Parking Charge Notice’ for £100 to the Defendant’s vehicle xxxxxx on xx/xx/2014. The defendant has from the outset denied any liability in respect of the claim and has repeatedly requested that the Claimant provide evidence of any legal basis to their claim which the Claimant has to date failed to do.
5. The driver entered the registration of the car, paid the correct tariff, and the machine issued a ticket which unbeknown to the driver showed an incorrect registration of the car. The machine shouldn't allow an incorrect registration to be printed on the ticket and indicates a malfunction between the P&D machine and Excel’s systems.
5.1 If the ANPR was directly linked to the P&D machine/system, it would be impossible for anything other than a valid registration number to be printed on the ticket.
5.2 The machines Excel use nationally seem particularly prone to failure, and several complaints that charges have been issued even when a valid ticket has been purchased have been made in other attempts made by the Claimant. It is also noted that when these failures have occurred previously it has been refused to cancel charges even when CCTV evidence from nearby shops show tickets were purchased.
6. The Claimant has, since June 2014, subjected the Defendant to a barrage of letters, demanding ever increasing sums of money but refused to respond to reasonable requests to provide the evidence necessary to support their claim.
6.1. These letters have often misrepresented the legal process, in attempts to threaten and intimidate the Defendant into paying the amount demanded. Numerous requests have been made for letters which provide the required information in line with the Pre-Action protocol, which have all been ignored and replied to in the form of template letters.
6.2. It is apparent that this Claimant has made no attempt to improve its misleading and aggressive business practices and unclear signs, since the cases of:
(i) Excel v Hetherington-Jakeman* (2008) where the Judge found the demands were not sent to inform a driver or narrow any issues, but were intended to "frighten or intimidate", and
(ii) Excel v Cutts** (2011) where the Judge ruled that Excel's signage was deficient and later Excel's owner publicly derided the court ruling as "an embarrassment to the judicial system" describing DDJ Lateef, as "not fit to serve the civil court."
6.3. The Claimant is a serial litigator and the issuing of this Claim without any legal basis appears to be another attempt to intimidate the Defendant, who does not have the legal expertise of the Claimant, into paying an unsubstantiated charge. This shows a complete lack of respect for the court process and also demonstrates the failure of the Claimant to attempt to mitigate losses, by escalating a £1.00 parking fee (which was in fact paid) into a demand for £254.90.
6.4 The Claimant has further failed to comply with Practice Direction by refusing to respond to the Defendants request to use an independent form of dispute resolution.
7. The Claimant was a member of British Parking Association in June 2014, and in order to access the data of a registered keeper from the DVLA, BPA members must fully comply with the applicable Code of Practice, which they have failed to do with respect to their signage in this case.
7.1. It is worth noting that this Claimant has previously been suspended by the DVLA from accessing registered keeper details, due to failure to comply with the Code of Practice in terms of the words on its signs.
7.2 Namely points 19.1 - When you issue a parking charge notice the charges you make have to be reasonable arising from enforcement under three different circumstances: when a motorist breaks the terms and conditions of a parking contract, when a motorist trespasses by parking without permission, agreed charges that are advertised in the contract; for example, for an overstay.
8. It is denied that the Claimant is the landowner of the land in question or that they have any other right or proprietary interest in the land.
9. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and issue enforcement proceedings in their own name and can demonstrate a clear chain of authority from the landowner.
9.1 In the absence of strict proof, I submit that the Claimant has no case and invite the court to strike the matter out.
10. If the court is minded to accept that the Claimant has standing, then I submit that the signage at the site at the time and date of the alleged event was insufficient to reasonably convey a contractual obligation and also did not comply with the requirements of the BPA Code of Practice to which the Claimant was a signatory at the time. The signage was inadequate in terms of the following:
• Lack of illumination of signage (and the car park), poor visibility
• Lack of clarity and prominence of terms and conditions
• Illegible text due to font size, density, colour and complexity
• Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
• Lack of relevant terms and conditions, such as the fees for parking
• Inadequate positioning of signs, at unsuitable heights
11. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, particularly during the hours of darkness, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the night in question.
12. In the absence of any signage that contractually bound the Defendant then there can have been no contract, the Claimant has no case, and as such, the court is invited to dismiss the claim.
13. Even had the terms and conditions been sufficiently prominent, terms which are unfair are not legally binding. Terms which are considered unfair include requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation. It is also unfair to impose disproportionate sanctions for breach of contract. A charge of £100.00 for an assumption of failing to pay a sum of £1.00 (which was in fact paid on the day) from being prominently displayed in the first place can be considered a disproportionate sum. I again refer to the BPA Section 20.1 When a vehicle is parked in a private car park, the normal rule is that the driver is responsible for paying the tariff fee (if any) for parking, for following the terms and conditions which apply, and for paying any parking charges. As the payment was made this is disputed.
14. It is anticipated that the Claimant may seek to rely on the Supreme Court ruling in the case of Parking Eye v Beavis. This case can be easily distinguished from ParkingEye v Beavis as Excel Parking have not demonstrated any commercial justification for the amount being charged and the wording of the notices was not clear, and a comparison should not and can not be made between the supreme and county court.
15. The Claimant is attempting to claim additional charges such as legal costs of £50.00. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.
16. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The keeper can only be held liable if the claimant has fully complied with the strict requirements. The Claimant has not established whether the Defendant was the driver on the day in question and have not clarified whether they are pursuing the Defendant as Keeper or as Driver.
17. The Claimant is put to strict proof of all his assertions
18. Considering all the above circumstances, I respectfully ask that the court dismiss the claim.
I believe the facts stated in this defence are true.
0
Comments
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Please add this to your original thread. It's very confusing for posters to flit from one thread to another. Keep everything in the same place for context.
Copy and paste this into your other thread, then delete this one. If you can't delete it, delete the text and change the title and text to, duplicate post or similar.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Apologies, I created a new thread as I was getting no response on my previous one. With the deadline drawing closer I thought this would be the best point of call and make it more recent.0
This discussion has been closed.
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