Help with IAS Appeals process

shawon007

Hi Guys,

I've remade the defence - can you please review as I have to have this submitted very soon.

I've made references to the vandalised signage and also to the ABUSE OF PROCESS with reference to two past hearings. Do you think there is anything to add / remove?

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

2. The Particulars of Claim state that 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.

3. 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.

4. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

5. 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.

6. 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 and is an abuse of process.

This is further supported by many county court Judges striking out cases in recent months without a hearing due solely to adding 'damages' that the claimant cannot justify.

In claim number F0DP163T on 11th July 2019, District Judge Grand sitting at the county court at Southampton, struck out an overtly inflated (over £100) parking firm claim without hearing for that reason.

In claim number F0DP201T on 10th June 2019, District Judge Taylor struck out the claim as an abuse of process.

DJ Grand stated: ''IT IS ORDERED THAT the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998.”,

According to Ladak v DRC Locums UKEAT/0488/13/LA a claimant can only recover the direct and provable costs f the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

7. The terms on the Claimant’s signage was contradictory to the terms of the other signage in the car park. The first signage that is read from a vehicle entering the car park states the parking charge is £1 while the only other signage states the charge is £100. The Claimant admits that the signage is incorrect / vandalized. It is, therefore, denied that the contradicting nature of the Claimant's signage is capable of creating a legally binding contract.

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.

Le_Kirk

Every paragraph requires a number. Is that the most up-to-date information about the Abuse of Process? If you search for beamerguy's thread you will find that Coupon-mad has added more. Also you could read a thread by CEC16. Alternatively, having introduced it in your defence, you can go to town in your Witness Statement.

shawon007

Le_Kirk wrote: »

Every paragraph requires a number. Is that the most up-to-date information about the Abuse of Process? If you search for beamerguy's thread you will find that Coupon-mad has added more. Also you could read a thread by CEC16. Alternatively, having introduced it in your defence, you can go to town in your Witness Statement.

Can I go into more detail in the WS? Do I have to add all the information of the cases here?

I'm hoping TBH they would drop the case once they see a defence.

Le_Kirk

Providing you have mentioned it in the defence, your WS can support, back-up and provide evidence of the defence points. Search the forum for posts by Coupon-mad where she has recommended using a supplementary WS due to the amount of information now available making the standard WS quite unwieldy.

Umkomaas

Can I go into more detail in the WS? Do I have to add all the information of the cases here?

Definitely, the place for more detailed input is in the WS.

I'm hoping TBH they would drop the case once they see a defence.

Have you read other threads on the forum? Show me any thread where on receipt of the defence the solicitors discontinue the claim. The longer they push the case on, the more chance the defendant might capitulate and pay, then maybe the sols also earn more.

It's unlikely that, other than a cursory glance-over, anyone is reading your defence. Even the advocate who will represent the claimant won't get a copy of anything much earlier than the day before the hearing.

shawon007

Le_Kirk wrote: »

Providing you have mentioned it in the defence, your WS can support, back-up and provide evidence of the defence points. Search the forum for posts by Coupon-mad where she has recommended using a supplementary WS due to the amount of information now available making the standard WS quite unwieldy.

I've mentioned the abuse of process in point 6. I can go into more detail in the later stages.

Do you see any other points I should add, or is that sufficient as a defence?

Le_Kirk

It has everything that a standard Bargepole defence would have plus the abuse of process. However, you still need paragraph numbers.

shawon007

Le_Kirk wrote: »

It has everything that a standard Bargepole defence would have plus the abuse of process. However, you still need paragraph numbers.

Ok I'll add the paragraph numbers.



What do you think about point 7 of my defence re. the contradicting signs? Do you think the court takes this into account?

KeithP

shawon007 wrote: »

What do you think about point 7 of my defence re. the contradicting signs? Do you think the court takes this into account?

I think you should change this sentence...

The Claimant admits that the signage is incorrect / vandalized.

to:

The Claimant admits that the signage is incorrect.

There is no need for you to provide the Claimant's excuses.

waamo

shawon007 wrote: »

Ok I'll add the paragraph numbers.



What do you think about point 7 of my defence re. the contradicting signs? Do you think the court takes this into account?

It's an extremely important point. A contradictory contract has to be interpreted in a manor most favourable to the consumer. That is enshrined in law.