Claim Form - what next

Claimmyass

Hi,

I have just read the FAQs and hence the post:
So we (as in we're a company, with company cars registered to our office) received the below letter.
h[t][t]ps:ibb[dot]co/gW7EtU

All I have done so far is acknowledged through moneyclaim gov uk to extend to 28 days.

Background, that I can gather so far:

• Car was parked behind shops
• We own one of the shops
• Landlord will NOT cancel the PCN (prehaps too late anyway)
• Ignored lots of letters (NOT me!)

Please help, I don't want a CCJ against the company and I want to pay these robbers even less!

Cheers

Quentin

https://ibb.co/gW7EtU




All help is in the Newbies FAQ!


#2 there covers all advice on court claims from receipt of the lbcca to the hearing



You only get a ccj against you on the register for 6 years if you either ignore the claim or lose in court and don't pay it off in full within a month of the judgement

Spend time studying that post, construct your defence and post it here for comment before sending it

Coupon-mad

We will help, when we see your first draft defence, based on others.

Look at those posted recently by bargepole, which include the words 'the facts are'.

Claimmyass

So having read the post by bargepole, I have drafted the below letter, please can you advise if the content seems correct:

---

County Court Business Centre
4th Floor St Katharine’s House
21 -27 St Katharine’s Street
Northampton
NN1 2LH

CLAIM No: XXXXX
ISSUE Date: XXXXX
BETWEEN:

UK Car Park Management Ltd
19 New Road
Brighton
BN1 1UF

-and-

XXXXXX
________________________________________
DEFENCE STATEMENT
________________________________________

I am the Defendant, XXXX, DOB XXXXX and reside at XXXXX and it is admitted that I was the driver of the vehicle on the day of this event.

Save as specifically admitted in this defence the Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre-action correspondence.

Preliminary matters:

The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).

The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “parking charges” which does not give any 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', so I have had to cover all eventualities and this has denied me a fair chance to defend this in an informed way. I have asked questions in the form of a Part 18 request but have not received any response.

The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and 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. On the basis of the above, I request the court strike out the claim.

In further support of there being a want of cause of action:

The PCN was issued on a poorly signed private road, the Vehicle was parked directly behind our shop and was being unloaded. I was completely unaware that the site was 'private land' or being enforced by any restrictive terms, due to insufficient signage. I refer to the IPC Code of Practice (CoP) Part E, highlighting that adequate and clear entrance signs are required.

There were no entrance signs at all to show that drivers were entering an area of 'parking enforcement' or 'private land'. The road was not marked as a no-stopping zone nor transparently signed as a permit-holders or 'managed' site, as their CoP requires.

The only sign was attached to perimeter fencing enclosing a building. There was nothing to suggest that one sign could relate to parking where my vehicle was located. There was no clearway sign nor red lines/hatched lines to communicate 'no stopping' and certainly nothing was seen about permits or how to obtain one, or the charge itself.

The PCN was NOT placed on the windscreen of the car, no received photos show a PCN on the Vehicle despite requests.

The Supreme Court Judges in the Beavis case held that a CoP is effectively 'regulation' for the private parking industry, full compliance with which is both expected and binding upon any parking operator.

Any ‘charge’ or terms on signage on the day was not seen but even if the court believes signs were displayed, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015.

Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis case, the Claimant offered no licence to park if ‘unauthorised’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

It is submitted that (apart from properly incurred court fees) any added solicitors fees 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 any event.

It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

The court is invited to strike out the claim, due to no cause of action nor prospects of success.

The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.


I believe the facts contained in this Defence Statement are true

---

Many thanks!

Le_Kirk

It's just DEFENCE not DEFENCE STATEMENT

Coupon-mad

That's a really old one and not based on bargepole's recent, concise ones he posted.

It is also totally unsuited to who you say the Defendant actually is:

we're a company, with company cars registered to our office

The Defendant is THE COMPANY so can't copy one written as an individual. The company writes more like this:

https://forums.moneysavingexpert.com/discussion/comment/74752275#Comment_74752275

so please can we see a draft that makes sense for the company entity, like that? As the car was parked behind a shop the company owns, you might struggle with the 'law of agency' argument if the driver parked it when on company business.

System

We own one of the shops

This may be similar to a residential claim. Do the deeds of the shop give any indication of easements or other rights to have company vehicles on site? [Easement argument]

IMHO there will be a basic right to access the property (pass and repass) and to load/unload as a function of carrying out a business. So were the vehicles actually parked? And was the parking a necessity to carrying out that business. [The necessity argument]

This presumes you were on communal areas and not something demised to another person/company.

you might struggle with the 'law of agency' argument

Agency law might actually work in your favour depending on the answer to the point above - necessity/easement.

Lastly, there may be scope for a counter claim against UKCPM and your "landlord" (please describe) if they were involved in the tortuous interference with any easement or grant or other arrangement. Alternatively just go for a injunction at their cost but see a property lawyer to check the docs/facts first.

Claimmyass

Is this any better???

---

County Court Business Centre
4th Floor St Katharine’s House
21 -27 St Katharine’s Street
Northampton
NN1 2LH

CLAIM No: XXXXX
ISSUE Date: XXXXX
BETWEEN:

UK Car Park Management Ltd
19 New Road
Brighton
BN1 1UF

-and-

XXXXXX
________________________________________
DEFENCE
________________________________________


DEFENCE

1. The Defendant is a Ltd company, and such an entity cannot possibly be held liable as 'the driver' of the vehicle.

1.1. The Claimant's citation in that case under appeal, was regarding the irrelevant case of UK Car Park Management Ltd v xxxxxxx. This was an essentially uncontested appeal case, where the driver was held to have been acting on behalf of the company and the law of agency applied, given the facts of that case.

1.2. In this current case being defended, the driver was indisputably not acting 'on behalf of' the Defendant company on the material date.

2. It is denied that there was any agreement as between the Defendant or driver of the vehicle and the Claimant, or that there was any relevant obligation or relevant contract (at all) and it is denied that the Claimant has suffered loss or damage or that there is any lawful basis to pursue a claim under contract.

2.1. The claim is denied in its entirety. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all. The Defendant company denies entering into any contract with the Claimant and denies that the driver was acting 'on the Defendant's behalf' on the material date.

3. Without any application of the law of agency in this case, 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 ("the POFA").

3.1. It is not admitted that the Claimant has complied with the relevant statutory requirements. Before seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, the Claimant must demonstrate that:

3.1.1. There was a 'relevant obligation' either by way of a breach of contract, trespass or other tort; and

3.1.2 that the alleged obligation and contractual terms the Claimant relies upon, do not impact on any statutory rights that the Defendant enjoys, and

3.1.3. that the requirement for 'adequate notice' of the parking charge was complied with and

3.1.4. the driver had ample time, under the specific given circumstances set out later in this defence, to be held to have agreed to a contract, and

3.1.5. that it has followed the required deadlines and prescribed/mandatory wording as described in the POFA, to 'transfer liability' from the driver to the registered keeper.

3.2. It is the Defendant's case that none of the above has occurred, and as such, there is no mechanism by which they can be held liable in law for the personal actions of a driver, one of several drivers in the company and in the family, who may use a vehicle that happens to belong to the company, in their own time and for their own purposes.

4. The PCN was issued on a poorly signed private road, the Vehicle was parked directly behind a shop and was being unloaded. The driver was completely unaware that the site was 'private land' or being enforced by any restrictive terms, due to insufficient signage. I refer to the IPC Code of Practice (CoP) Part E, highlighting that adequate and clear entrance signs are required.

4.1. There were no entrance signs at all to show that drivers were entering an area of 'parking enforcement' or 'private land'. The road was not marked as a no-stopping zone nor transparently signed as a permit-holders or 'managed' site, as their CoP requires.

4.2. The only sign was attached to perimeter fencing enclosing a building. There was nothing to suggest that one sign could relate to parking where my vehicle was located. There was no clearway sign nor red lines/hatched lines to communicate 'no stopping' and certainly nothing was seen about permits or how to obtain one, or the charge itself.

4.3. The PCN was NOT placed on the windscreen of the car, no received photos show a PCN on the Vehicle despite requests.

4.4. Any ‘charge’ or terms on signage on the day was not seen but even if the court believes signs were displayed, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015.

4.5. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis case, the Claimant offered no licence to park if ‘unauthorised’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

4.6. It is submitted that (apart from properly incurred court fees) any added solicitors fees 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 any event.

4.7. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

5. Given the facts, this Claimant's claim must fail and the court is invited to strike it out, or in the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the following legal points:

This is within the court's own remit, without need for an application by the Defendant, and a preliminary hearing will save burdening the court with the Claimant's usual template scatter-gun documents and baseless arguments about contractual breach, which bear no scrutiny in a claim that has no merit.

I believe the facts contained in this Defence Statement are true.

xxxxx (Director) xxxxx limited

---

Thanks

System

the driver was indisputably not acting 'on behalf of' the Defendant company on the material date.

one of several drivers in the company and in the family, who may use a vehicle that happens to belong to the company, in their own time and for their own purposes.

That should work but it may need clarification in terms of what the company does e.g meat processing for example, and what the driver was unloading e.g sawdust. If the items unloaded are clearly ones where it cannot be in the course of business, then it should be a slam dunk win.

Though if you are that guy that puts sawdust in my sausages, I'd like a word...

KeithP

With a Claim Issue Date of 13th August, and having done the AoS in a timely manner, you have until 4pm on Monday 17th September 2018 to file your Defence.

Just a week to go, but please don't leave it until the last minute.


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

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) 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'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here.

Claimmyass

We have now received a letter from the Claimants solicitor who has notified us of the clients intention to proceed. The client has elected not to mediate.
What are the options now, are we simply better of settling the amount, is its still possible to do so? If we have to attend a hearing it will cost me more than the fine in the loss of a days works.
As ever any advice welcome!