Defence Statement Needs Beefing Up

NoahUB

Coupon-mad wrote: »

Needs a heading: DEFENCE

And changes here; lose the address, but say early on that you were not the driver:

I would delete #5 and #9

You have two x point 3) and I would delete then second (longer) point #3 entirely and move the first one down as at the moment it's joined into #2 and hidden.

You said this was your main point of defence but you didn't include it! Add it, I suggest it should be just before the Saeed v Plustrade point.

Many thanks for the speedy response, I asked a friend to read over it and he said it was flawless. I guess he should have went to Specsavers. Ive managed to make amendments to my defence letter and have incorporated your points. I assumed from other letters the defamation in point 5 held value as well as mentioning not receiving an ADR in point 9.

Well here it is minus the formalities at the top.

DEFENCE


1. It is acknowledged that the defendant, Mustafeez Butt, is the registered keeper of the vehicle but it is denied that the Defendant was the driver on the alleged date.

2. It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in it's entirety. The date of the alleged incident is xx/xx/xx17 as per the particulars of claim. I am perplexed as to why the Claimant waited until now to bring proceedings nearly a year on.

3. The Defendant has prepared the defence on the presumption that the alleged parking contravention is in reference to an occasion whereby the Defendant’s vehicle was parked in an industrial parking space at the mentioned location.

4. The Defendant disputes that the Claimant has incurred solicitors costs of £xx to prepare the claim. The Defendant refers the Court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action.

5. I am yet to have knowledge of all documents provided to the court in support of the application.

6. The Defendant believes that his personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing.

7. The Defendant has no liability as they are the keeper of the vehicle and the Claimant has failed to comply with the strict provisions of POFA 2012 to hold anyone other than the driver liable for the charges.

a) The driver has not been evidenced on any occasion.

b) There is no presumption in law that the keeper was the driver and nor is the keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and the barrister, Henry Gleenslade, when explaining the POFA 2012 principles of ‘keeper liability’ as set out in Schedule 4.

8. I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

9. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

10. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

11. At the time of the alleged incident the nearby warehouse units were undergoing construction/renovation that lead to debris, paint and materials littering the car park heavily. The severity of the disorder meant no bay markings were visible and at the time no sign was displayed stating bays were not in use. In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well-known and well established principle that ‘a grantor shall not derogate from his grant’

12. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

13. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

14. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) 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 Unfair Terms in Consumer Contracts Regulations 1999.
d) 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.
e) Absent the elements of a contract, there can be no breach of contract.

15. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

16. The Defendant denies that the Claimant has the authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor does he have any interest in the land. He therefore lacks the capacity to offer parking.

a) The Claimant has failed to provide strict proof of a chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred in the Lease.

b) Alternatively, even if a contract could be established, the provision requiring payment of £xxx.xx is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015.

17. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

SIGNED__________________ DATE_____________

[Deleted User]

There's a lot of padding in that defence to an exclusion of the exploration of the real issues. It needs to be targeted. It reveals that you're cheesed off, yes, but some of that hides your better points.

At the time of the alleged incident there was warehouse units under construction/renovation where debris, paint and materials littered the car park, HEAVILY. To the point where no bay markings were visible,
If relevant, I suggest arguments like:
i. there were no marked bays;
ii. if there were marked bays they were not visible and/or maintained;
iii. the claimant is put to proof that there were marked bays and that they were visible to the ordinary motorist visiting the premises
iv. in the event that the court finds that there were marked bays or that parking on the site was suspended by reason of the building works there was no sign to say bays were not in use

Delete 2 - your case is clearly going to be that indemnity costs can't be recovered nor can liquidated damages. It does no good to say that you don't know what they are. They've got 6 years to bring a claim, so give up the point on a mere year's delay

This

The claim also states "parking charges/damages and indemnity costs if applicable" which gives no indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'.
Because of this, I have had to cover all eventualities in defending such a 'cut & paste' claim which has caused significant distress and has denied me a fair chance to defend this claim in an informed way.
Therefore, as an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.

can become:
The particulars of claim lack specificity, and fails to distinguish inter alia whether the claim is brought under contract or on a tortious basis (trespass). The Defendant reserves the right to serve an Amended Defence upon the Claimant clarifying the case that the Defendant is asked to answer.

If you're gonna argue failure to comply with protocols seek the debarral from any claim to interest and link it back to the inadequate particulars. If they mess up pre-issue that is all the more reason why the PoC need to be detailed.

The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
In the circumstances the Claimant's claim is denied.

It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.
This adds nothing at all and can be omitted (you can still claim them later)

Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.
Be VERY careful accusing a party of using template documents where you are yourself. In particular I would reconsider para 16 to make it more specific to your case. Arguing about lighting would be pointless, for example, when parking in daylight hours.

If this is not a car park where there was an absolute entitlement to park that was impinged upon by the building works it becomes less clear how Saeed is going to help you, but I leave that point with you to consider, having presumably read the judgment more recently than I have.

Finally, can we all please get this right. The statement of truth for some reason is being cocked up in a number of the posts on here. It's quite simple, really.

STATEMENT OF TRUTH
I believe that the facts set out in this [insert: Defence/Witness Statement etc] are true.

signature.

NoahUB

Hi folks, I have realised the title of my post is quite the opposite, I've expanded on my leading hand for the my defence and have come to the decision that the 'SAEED vs Plustrade' case is relevant as although there is no absolute entitlement to park the contributing factors leading up to the issuing of a notice follow the outline of my situation.

This is what I have managed to muster up and I feel it is suitable to submit, do correct me if I am wrong or not getting anything at all.

I do apologise to you fellows if you find this rather tedious.


DEFENCE

1. It is acknowledged that the defendant, xxxx xxxx, is the registered keeper of the vehicle but it is denied that the Defendant was the driver on the alleged date.

2. It is denied that any charges or costs as stated on the Particulars of claim are owed and any debt is denied in it's entirety. The date of the alleged incident is xx/xx/2017 as per the particulars of claim.

3. The Defendant has prepared the defence on the presumption that the alleged parking contravention is in reference to an occasion whereby the Defendant!!!8217;s vehicle was parked in an industrial parking space at the mentioned location. The Defendant reserves the right to serve an Amended Defence upon the Claimant clarifying the case that the Defendant is asked to answer as The particulars of claim lack specificity, and fails to distinguish whether the claim is brought under contract or on a tortious basis.

4. The Defendant disputes that the Claimant has incurred solicitors costs of £xx to prepare the claim. The Defendant refers the Court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action.

5. I am yet to have knowledge of all documents provided to the court in support of the application.

6. The Defendant believes that his personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing.

7. The Defendant has no liability as they are the keeper of the vehicle and the Claimant has failed to comply with the strict provisions of POFA 2012 to hold anyone other than the driver liable for the charges.

a) The driver has not been evidenced on any occasion.

b) There is no presumption in law that the keeper was the driver and nor is the keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and the barrister, Henry Gleenslade, when explaining the POFA 2012 principles of !!!8216;keeper liability!!!8217; as set out in Schedule 4.

8. I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

9. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

10. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

11. At the time of the alleged incident the nearby warehouse units were undergoing construction/renovation that lead to debris, paint and materials littering the car park heavily. The severity of the disorder meant:
a) There were no parking bays
b) If there were parking bays at the time they were not visible.
c) The claimant is put to proof that there were marked bays and they were visible to the ordinary motorist visiting the premises during the renovation of the nearby industrial units.
d) If the court finds that there were marked bays or parking on that site was suspended by reason of the building works there was no sign to say bays were not in use.

In the case of Saeed v Plustrade Limited [2001] EWCA Civ 2011 parking restrictions and a change which caused detriment to tenants and their visitors were held to be in breach of the well-known and well established principle that !!!8216;a grantor shall not derogate from his grant!!!8217;

12. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

13. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons in the circumstances the claimants claim is denied.

14. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) 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.
e) Absent the elements of a contract, there can be no breach of contract.

15. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

16. The Defendant denies that the Claimant has the authority to bring a claim. The Claimant does not own the land where the vehicle was parked, nor does he have any interest in the land. He therefore lacks the capacity to offer parking.

a) The Claimant has failed to provide strict proof of a chain of contracts leading from the landowner to the Claimant which show that they have a right to unilaterally remove or interfere with the overriding rights conferred in the Lease.

b) Alternatively, even if a contract could be established, the provision requiring payment of £xxx.xx is an unenforceable penalty clause and an unfair term contrary to the Consumer Rights Act 2015.

17. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' general particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

Statement of Truth
I believe that the facts set out in this Defence are True.


SIGNED__________________ DATE_____________

KeithP

Point 5, 8 and 17 all revert to first person.
For example, 8 should start "The defendant suggests...".

Coupon-mad

The date of the alleged incident is xx/xx/2017 as per the particulars of claim.

Remove the above, unless you are saying the Claimant got the date wrong, it isn't needed and is out of place where it's been added.

#11 should be moved up to be #4, as it took me ages to find what the defence is about.

NoahUB

Done and Done, for now.. any hints as to what I can search for to find a post on how to file a defence electronically.

Coupon-mad

You just email it as a signed/dated attachment, to the CCBCAQ email address. Not using MCOL at all at defence stage.

Coupon-mad

Not using MCOL at all at defence stage.

As above! NO.

If you even typed 'I have emailed my defence' in the MCOL defence box...THAT would be your defence.