Judgment for Claimant (Default)

Coupon-mad

AMTF wrote: »

I have the letter, I got the date wrong. By the 27th July, the claimant was supposed to:
"File in the court office full details of all facts and masters relied on in support of the claim", and "serve a copy to the defendant". The 10th August was for the defendant to "file in the court office full details of his defence" and "serve a copy on the claimant"

My wife phoned the court in regards to this on the day, and sent an email to the court "as per our conversation" to inform them on the 27th July that we hadn't received and claim details so we can't send a reply, and also that would be away in August so couldn't respond to any correspondence. She is still away so I've only just been forwarded that particular email. I'm not sure if that changes anything

So act quickly now and serve that defence to the court and the claimant, with a covering letter explaining AGAIN that the Claimant didn't comply with the date set by the court, and as she was away (which the court knows due to her email dated xx.xx.18) she has acted quickly, within days of receiving the Claimant's late submission, to file this defence.

Show us the defence first, no faffing and asking us from scratch, what to write.

Example defences are all over the forum, thousands of them found with one search! Copy and adapt one and let's get cracking today with it, show us the first draft.

AMTF

I must apologise, I didn't mean to make you think I wanted to get the whole defence from scratch. I just needed some advice on tweaks to make. I have my original defence to get the claim dismissed that I submitted along with my set aside, I have made alterations.

I am supplying a cover letter as mentioned above with details stating that we informed the court we could be unable to reply due to our holiday, I returned early due to work commitments, and also stating that we were unable to reply to the court earlier due to not receiving anything from the Claimant.


IN THE COUNTY COURT AT ***

Claim No. ***

BETWEEN:

Parking Control Management (UK) Limited


-- and --


***


_____________________________________


DEFENCE STATEMENT

______________________________________



1. Order dismissing the Claim

1.1. I believe that the Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

1.2. If the Claimant has obtained details of the vehicle for which the Defendant was the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

1.3. If the Claimant can evidence that the alleged incident relates to a vehicle for which the Defendant is the Registered Keeper, any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. Otherwise, the Claimant is required to prove the driver of the vehicle they claim was involved in the alleged incident. I submit that the Claimant cannot provide such evidence and further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.


1.4. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:
1.4.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the service yard in question, and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.
1.4.2. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper.
1.4.3. Claimed charge is an unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.
1.4.4. No contract with the claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to Parking Control Management (UK) Limited.
1.4.5 On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

1.5 In a letter sent to the Gladstone Solicitors dated 30th March 2018, the Defendant requested all evidence of the claim that the client held against the Defendant, there was no response received between this letter being sent and the original Claim being filed by the Claimant. This gives the Defendant no basis to defend against this Claim due to no specific details being known by the Defendant.

1.6.1 After the original claim papers were sent to a previous address held by the Defendant, a set-aside hearing was held to restart the claim process from the beginning. The Claimant failed to attend the set-aside hearing, demonstrating their lack of interest in this Claim.
1.6.2 As a result of the set-aside hearing, the Claimant was required by a court order to file the full details of all facts and matters relied on in support of the claim to the Court Office with a copy served to the Defendant by 27th July 2018. The Claimant failed to provide these within the allotted time, further displaying their lack of interest in proceeding with this Claim.

2. Order requesting remuneration of fees

2.1 The Defendant requests that *** be paid by the Claimant to the Defendant to recover monetary losses incurred by this Claim. This amount is calculated from:
2.1.1 £255 set-aside fee.
2.1.2 *** loss of earnings for the Defendant attending the set-aside hearing
2.1.3 *** loss of earnings for the Defendant’s wife attending the set-aside hearing




Statement of Truth:
I believe that the facts stated in this Witness Statement are true.
Full name: ***

Dated: 16/08/18

Signed: ***

Umkomaas

Not an expert so won't be advising on the content or thrust. Just a couple of pointers:

It's a 'Defence', not a 'Defence Statement'.

There's no place for 'I' in a defence. It should always be 'The Defendant' (using a capital 'D' each time).

Others might confirm, but phrases such as 'I understand' or 'It is understood' suggests you lack certainty, and I'm not sure that's the best basis for a strong defence.

KeithP

It says 'Defence Statement' at the top and 'Witness Statement' at the bottom.

Umkomaas

KeithP wrote: »

It says 'Defence Statement' at the top and 'Witness Statement' at the bottom.

I'm not sure what it is then? Must be one or the other, or is it some kind of hybrid? beggared if I know! As I said, I'm no court expert! :rotfl:

:doh:

This job gets no easier. There's been some pearls going through today!

AMTF

KeithP wrote: »

It says 'Defence Statement' at the top and 'Witness Statement' at the bottom.

That's my bad proof reading, it is an alteration of my original witness statement, I'll edit that. Other than that, removing the understood, and changing the I's, is there any other advice?

Coupon-mad

The Judge asked for your DEFENCE.

That is not a defence. You have copied a set aside order. And you have utter rubbish (outdated, pre-Beavis case stuff) in it, like 'no loss' which is hopeless and NOT a defence.

Just search the forum for: PCM defence predatory Watchdog and quickly read a few of the results, first thing, and adapt a proper PCM defence URGENTLY.

Please don't reply to us saying that search finds 'no results'...it finds several PCM defences.

Once you have a DEFENCE, Sign it, date it and take it in person (or get a relative or friend to hand deliver it) to the local Court tomorrow with that covering letter we discussed before.

No posting anything snail mail on a Friday.

And email the claimant their version of the defence and that covering letter.

AMTF

Coupon-mad wrote: »

Just search the forum for: PCM defence predatory Watchdog and quickly read a few of the results, first thing, and adapt a proper PCM defence URGENTLY.

This is just what I needed, thank you. I have found one and adapted it. This is what I have and will be handing into the court today:

DEFENCE

Claim Number ***

Parking Control Management UK Ltd
Vs
***


INTRODUCTION

1. It is admitted that the Defendant, ***, residing at ***, was the registered keeper of the vehicle at the time in question.

2. Rebuttal of Claim
It is denied that any 'debt' exists that could lead to a claim in law. In the alternative, if a debt is considered by the court to exist, then the Defendant is not liable because:

a) No contract was formed. There was no offer, and no consideration flowed between any parties and this location is an unmarked (or very badly marked) road, not a car park. The actual area of tarmac in which the alleged ‘parking violation’ occurred had no road markings to indicate that any rules applied. This appears to be just the sort of predatory ticketing practice the UK Government has pledged to end.

b) No agreement was reached, no meeting of minds with a driver agreeing to pay a parking charge.

c) No agreement was made to pay unspecified additional sums, which are unsupported in law.

d) The claimant company failed to comply with the terms of Schedule 4 of the Protection of Freedoms Act 2012, so cannot lawfully hold a registered keeper liable.

e) The claimant company failed to comply with their obligations within the International Parking Community (IPC) Code of Practice, of which they are a member.

f) No suitable grace period was allowed and the charge is disproportionate and has no complex legitimate interest allowing recovery of any more than damages (in this instance none), using the test established in ParkingEye v Beavis.

g) The Claimant company has no standing to charge for trespass, and made no offer, so has no grounds to allege any contract existed, or could exist, nor can a third party recover any nominal sum under the tort of trespass on land they do not own.

3. The Defendant has chosen to defend this claim as the registered keeper, as is their right.

4. As an unrepresented litigant-in-person, the Defendant respectfully asks that he be permitted to amend and or supplement this Defence as may be required following a fuller disclosure of the Claimant's case.

THE DEFENCE

The Defence will rely principally upon the following points:

5. In the pre-court stage, the Claimant’s solicitor refused to provide me with the necessary information I requested on *** in order to defend myself against the alleged debt. The request was made for:

a) an explanation of the cause of action
b) whether they were pursuing me as driver or keeper
c) whether they are relying on the provisions of Schedule 4 of POFA 2012
d) what the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated
e) Is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract
f) Is the claim for trespass? If so, provide details
g) Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”
h) a plan showing where any signs were displayed
i) details of the signs displayed (size of sign, size of font, height at which displayed)
j) Provide details of the original charge, and detail any interest and administrative or other charges added
k) Provide a copy of the Information Sheet and the Reply Form

None of the above requests were clearly answered or provided by the claimant, and have still not been to date. A copy of the signage requested in section 5(i) was received but there is no evidence to show that signs were present at this site at the time of the alleged incident.

6. Parking Control Management (Uk) Limited are 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 action regarding this claim.
6.1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
6.2. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle ‘parking’ at the location in question
6.3 The Claimant is put to prove that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge

7. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate. They are therefore incapable for the purpose of forming the basis of a contract. Further it is trite law that a term that is forbidding cannot also constitute an offer. Should the claimant rely upon the case of ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case'), insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout. I wish to point out that there is a test of good faith (reference Paragraph 205):
“The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”
It is therefore denied that any contract was formed or was capable of being formed and that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

8. There has been a breach of the IPC Code of Practise relating to entrapment: it will be shown that the means to prevent the alleged “parking violation” existed before, during and after the alleged contravention. It will also be demonstrated that the opportunity to instruct the driver of the parking “restrictions” in place was available and that it is in doubt as to whether a reasonable “grace period” was allowed as stated in IPC Code of Practice 15.1.

9. The Defendant would also cite Parking Control Management (Uk) Ltd v Christopher Bull (21/4/2016) in which the court ruled against the Claimant in a similar circumstance where the Defendant was accused of parking in a restricted area.

10. The Defendant would also like to make the court aware of the widely publicised findings of the BBC’s Watchdog programme in Series 35 Episode 4 in which Parking Control Management (Uk) Ltd. admitted that they make things up during appeals; this provides further evidence of PCM’s lack of professionalism and fictitious claims. The programme also found evidence of numerous scam/non-existent appeal procedures being employed.

11. The claimed value of £281.71 (plus court & legal representative costs) is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors in their claim.
It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice so the increase in costs from £100 to £160 appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
11.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
11.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
11.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

12. The Claimant has added further unexplained charges with no evidence of how these extra charges have been calculated.
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. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
12.1. The Defendant has the reasonable belief that the Claimant has not incurred £97 costs to pursue an alleged £100 debt.
12.2. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.

13. 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. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.
The Defendant believes the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to the Defendant’s significant detriment as an unrepresented Defendant.
The Defendant suggests 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.

Summary
14. It is submitted that the conduct of the Claimant in pursuing this claim 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).

15. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

16. The Defendant requests 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''.

17. 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.


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


Signed ***
Dated ***

AMTF

I've emailed it out and heading out to deliver the letter to the court on the way to work

Coupon-mad

Good, that's long and a bit rambling but it is a defence, at least.