Claim Form - Originated from PCN where machine was broken.

Coupon-mad

Hi mate,

I'm a lady, but hi!

just putting defense together at the moment. I'm curious if you could help me with the 'review the cases' part.
So I'm thinking if possible to have case 2 deferred under the res judicata. Despite me being aware of required procedure the second visit (pay by debit card), these cases are otherwise identical and are caused by the same initial problem - the broken machine.

Do you mean case 2 has not yet proceeded to court?

If not, then you can only reply to any LBC they send you about case 2, by saying that the facts are already about to be tested in court in claim xxxxxxx and as such, to proceed to court a second time for a case that turns on the same facts would be a gross abuse of process, given the doctrine of res judicata, they cannot have another go in the hope of getting a different result on a different day in court.

If they are both at claim stage already, and slowly working their way through court as separate claims, all you can do is address the issue in a covering letter at every stage where you serve & file any documents, and request that a Judge finally considered the matter and merges the claims to be heard as one hearing.

iiydro

Hi Coupon-Mad, my apologies.


So I had intended to finalise my defence for the claims this evening and submit. I've attempted to log-on to the moneyclaims service and having great difficulty. The website is atrociously designed and complex.


Can I confirm, if the issue date on the letter is the 29th Aug. The service date would be 3rd September. With the AOS completed for each claim, the extended defense period would mean the final date of submission is the 1st October - is this correct?


Also, if I was to submit my defences to this forum - is that a good idea? I'm unsure of what others have done in the past.

KeithP

Do not even consider using MCOL to submit your Defence.

The reasons for that are well explained in the NEWBIES FAQ sticky thread.

I asked you on 5th September, and again on 19th September, for the Date of Issue on your Claim form.
You didn't answer that question.
I felt that asking twice was enough.



As you have done the AoS, then with a Claim Issue Date of 29th August, you have until 4pm on Monday 1st October 2018 to file your Defence.

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 then re-read post #2 of the NEWBIES thread to find out exactly how to answer each question.


But you already know that - post #21 told how to submit your Defence.

iiydro

My apologies KeithP, just getting a little hot under the collar about this. Couldn't have come at a busier time for me. A lot of information to consume in a short period of time.


Thank you again - I have since found the topic by bargepole regarding send via post OR scan as PDF and send via email as you have mentioned.


Unsure if this could possibly help at this point in the case, however I have mentioned it to the owner of the business who I was visiting (who as of a few months ago has employed me). They have mentioned this to their landlord to seek cancellation. If the PPC accept this demand by the landlord, what proof would I require from them to admit into court to have the claim cancelled?


Thank you

iiydro

Also wish to add, while searching the forums, I have come across an identical court claim letter in another topic.
I will link the reply rather than the document attachment.
https://forums.moneysavingexpert.com/discussion/5744703/parking-change-notice-pictures-attached&highlight=myparkingcharge#9


In addition Coupon-Mad, I feel your reply on this same thread could be a great structure for myself.
https://forums.moneysavingexpert.com/discussion/5744703/parking-change-notice-pictures-attached&highlight=myparkingcharge&page=2#22

Coupon-mad

As yours is a myparkingcharge PCN, I strongly suggest you adapt your defence to be more like the one you found about this, as it exposes VCS as telling untruths in the POC, where they try to turn what a driver was told was 'not a PCN' into a CN and hope no-one notices.

Unsure if this could possibly help at this point in the case, however I have mentioned it to the owner of the business who I was visiting (who as of a few months ago has employed me).

They have mentioned this to their landlord to seek cancellation. If the PPC accept this demand by the landlord, what proof would I require from them to admit into court to have the claim cancelled?

Yep you need a paragraph like point #8 here:

https://forums.moneysavingexpert.com/discussion/comment/74835333#Comment_74835333

HTH

iiydro

Ok, here goes. Coupon-Mad, Kevin and any one who I may have missed. I thank you - you are doing a great service. I hope God repays you in kind.

[FONT="]IN THE COUNTY COURT

CLAIM No:

BETWEEN:

Removed (Claimant)

-and-

Removed (Defendant)[/FONT]

[FONT="]DEFENCE STATEMENT[/FONT]

[FONT="]
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration Removed, of which the Defendant is the registered keeper, appears from a lack of evidence supplied by this Claimant, to be parked on the material date on private land, not causing an obstruction and parked in accordance to the designated lined parking bays.

2.1. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a yellow/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

2.2. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN. [/FONT]
2.3. The Defendant denies liability for the charge, not least because the driver on the material date did not enter into any contract with the Claimant because no contract was 'there to be seen' and the £100 was buried in small print and not prominently proclaimed in the 'large lettering' and contrast that would meet Lord Denning's 'Red Hand Rule' for such an onerous term.
[FONT="]2.4. In addition, the Defendant identifies the Pay & Display machine located in the area mentioned in the Particulars; to be in a neglected state and none operational. No clear instruction was affixed to the machine with direction to the Defendant. [/FONT]
[FONT="]2.5. The Defendant denies a breach of contract as the primary source of payment was none operational. The Claimant failed to ensure their terms of the service agreement to which they are claiming a contravention of, has occurred. The Pay & Display machine, the on-site available source of payment, to the knowledge of the Defendant, was owned and operated by the Claimant.

3. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. 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.

4. 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.

5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. [/FONT]
[FONT="]5.1. The Claimants signage, attached to a wall perpendicular to the area in which the Defendant’s vehicle was and therefore outside of direct, clear view.

5.2. Evidence of the vehicle, registration Removed, has not be provided by the Claimant to demonstrate the position of the: vehicle versus Claimants signage. The Claimant is put to strict proof.

5.3. Even if the Court is minded to consider that the driver of the vehicle could view the sign, the Defendant wishes to highlight once more, the predominant demonstration of required action, the Pay & Display parking machine was in a neglected state and none operational.[/FONT]
[FONT="]
5.4. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

5.5. County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.

6. 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 pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

6.1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

6.2. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

7. The POFA, 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.

8. 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.[/FONT]
[FONT="]9. Upon receiving the claim, the Defendant contacted the business owner of Removed, to whom the Defendant was a customer of, on the material date. The business owner was not happy to support a third-party parking firm suing their customers. The business owner has sent an email to their landlord, whom in turn has demanded a cancellation by the Claimant for this claim. This clearly nullifies any legitimate interest excuse, and the PCN would have been cancelled earlier had the Claimant openly informed recipients of NTKs of their complaint options.[/FONT]
[FONT="]9.1. Instead, the Claimant routinely channels victims towards the kangaroo court of the IPC Trade Body 'appeal' system which was exposed by Parliamentary debate in February 2018, as having an astonishing conflict of interests, with the so-called' Independent Appeals Service being run by the IPC Trade Body Directors, who also have a significant interest in taking parking cases to court under the guise of robo-claim firm QDR & ZZPS. The Defendant had no chance at appeal, but clearly would have had the unfair charge cancelled at the outset by the business owner, had they known this was even an option.[/FONT]
[FONT="]9.2. The Defendant had attempted to appeal the ‘CN’ with the Claimant via post. Identifying the Pay & Display machine was neglected and not functional; in addition to including a cheque made out to the Claimants legal business name, of £4.00. This cheque covered the Claimant’s ‘rate of parking’ for two hours (£2.00) on the material date, at the location identified in the Particulars. This appeal was dismissed by the Claimant claiming an alternative payment method was available. The Defendant claims frustration of the condition wherein and suspicious of rogue-trading parking companies, does not see this as a suitable, safe option.[/FONT]
[FONT="]10. The Defendant wishes to highlight to the court, the Claimant is pursuing an additional claim for identical circumstance against the Defendant. The Defendant requires the additional claim to be reviewed under res juridicata. The second claim reference is Removed.[/FONT]
[FONT="]
[/FONT]
[FONT="]I believe the facts contained in this Defence are true.[/FONT]
[FONT="]Name[/FONT]
[FONT="]Signature[/FONT]
[FONT="]Date[/FONT]

Also wish to add, I will submit the above defence for both claims. Only changing the mention and reference of the additional claim in point 10.

Coupon-mad

none operational.

should be

non-operational.

and

res juridicata.

should be

res judicata.

Le_Kirk

..... and it's just DEFENCE [STRIKE]STATEMENT[/STRIKE]

iiydro

Thank you!
Do you think this is good enough to submit? I like this template a lot, it definitely gives you a good understanding on how to go about it.