PCN taken to court (BW Legal) - Advice needed

KeithP

To start your own thread click on this blue button:

Having done that, please delete your post from this thread. Thanks.

beamerguy

KeithP wrote: »

To start your own thread click on this blue button:

Having done that, please delete your post from this thread. Thanks.

You like myself use the green skin of this forum but
there is another skin which is different as Umk pointed
out to me a while back. New members default to the new one
I think

KeithP

That's right, but if Lehcar was to click on the blue button in my post that will start a new thread.

No need to go looking for it. Nothing could be simpler.

bartolas

@IamEmanresu Thanks for your support, I'll update the defence and post it again here to have more comments.

You've also missed the not so subtle hint to change the numbering of you paragraphs ...

And about the numbering, what should be changed?

bartolas

Hi all,

find below the second draft of my defence... Can I have your feedback please?

The defence needs to be sent Monday, so I just have the weekend to prepare it...

+++++++++++++++++++++

IN THE COUNTY COURT

Claim Number: ********

Between:
COUNTRYWIDE PARKING MANAGEMENT LIMITED (Claimant)
-and-
XXXXXXXX (Defendant)

_________
Defence
_________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is admitted that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date at XXXX.

3. The Claim Form issued on the 16 July 2018 by BW Legal Service Limited was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by BW Legal Service Limited as the Claimant's Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

4. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states "Parking Contravention" which does not give any indication of on what basis the claim is brought. 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. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

5. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").

6. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offense has been committed. Those provisions do not apply to this matter.

7. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

8. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner to form a contract with the driver. The signage is not visible from some of parking spaces or when a high vehicle is parked in the parking space in front of the signs. The signage are also displayed in a font which is too small to be read and it are not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3 Authority to Park and Primacy of Contract. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

9. 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.

10. 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.

11. The Defendant also disputes that the Claimant has incurred £50 legal representatives' costs. The Claimant described the charge of £50.00 "legal representative costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court. It is also admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

12. Finally, the Defendant would like to bring to attention the fact that 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 thousands of similar poorly pleaded claims. 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. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

13. 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 the facts contained in this Defence are true.

Name
Signature
Date

+++++++++++++

Thanks in advance

bartolas

Hi Guys,

Can I please have some feedback about the defence posted below?

@Coupon-mad, @KeithP, @Umkomaas, @IamEmanresu, @Bargepole Can I have your comments on my draft?

The defence is due to be filed by 4pm tomorrow, so I'm running out of time and struggling to understand if what I wrote is good enough.

Redx

use post #66 in this thread https://forums.moneysavingexpert.com/discussion/5823752/scs-law-lbc-by-ukpc&page=4 to hone yours, as there are some things that need adding like the title and altering the footer etc


when finished , it needs to look like that example above by BARGEPOLE posted this morning

bartolas

Hi Redx,

I've update the draft to add the header/titles (I was aware of the missing elements I've just omitted them to keep the draft shorter)

Can I please have your comments on the content of the defence?

Umkomaas

Can I please have some feedback about the defence posted below?

@Umkomaas,

Sorry, I don't get involved at this end of the spectrum. I concentrate my efforts on helping fight private parking at the early stages, which is where I first started getting involved in this stuff.

The fact is that much of this has morphed into a quasi-legal forum, not something it was intended for, with increasingly unrealistic demands being placed on the handful of regulars who come here each day. It's at this point I made the decision not to advise on court cases, otherwise I'd be dealing with my own court case (the one in the divorce court!)

Redx

bartolas wrote: »

Hi Redx,

I've update the draft to add the header/titles (I was aware of the missing elements I've just omitted them to keep the draft shorter)

Can I please have your comments on the content of the defence?

see the Umkomaas response above, because I too do not get involved in legal cases (read my signature)

I will comment on common sense items or blatant errors , but those of you expecting a free legal team to look over your court cases are expecting far too much

the people who come on here with legal training and knowledge can likely be counted on one hand, so pointless spraying names about unless you know for a fact that they have the legal experience to help you


this is a parking charge forum, not a legal case/legal aid forum