Help with IAS Appeals process

shawon007

waamo wrote: »

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.

Oh wow, I didn't realise that. Thanks I have evidence from the IAS where they admit the sign was vandalised. Took a copy of the web page and will submit as evidence.


And thanks above poster for the correction!

shawon007

How is this defence:

[FONT=Arial, sans-serif]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. 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.

I believe the facts contained in this Defence are true. [/FONT]

Coupon-mad

Remove this as it is incorrect (we've decided there are no legs in challenging the legal fee of £50) and thus, it does not feature in my wording in post #14 of the ABUSE OF PROCESS thread:

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.

I feel you need to add a paragraph at the start saying if you were the driver and what sort of car park it is, what your business was in parking there and why you believed you were authorised/permitted.

We assume this was a permit car park but you were unaware, or only unloading something? What facts? Tell the Judge early in the defence and don't hide behind being the 'keeper' in a case where you should be admitting to driving, given you really want to talk about the inadequate/small print and ambiguous signs with knowledge as an honest witness.

Your defence is completely lacking on those facts but is fine as a base apart from that. But you really do need to understand the way to argue against the £60, at WS stage later on.

shawon007

Hi Coupon,

Thanks for the advice.

I have amended the defence:

---

1. The defendant was the registered keeper and driver of the vehicle with registration number XXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. 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 entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

3. 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.

4. 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. It is, therefore, denied that the contradicting nature of 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.”

7. 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.

---

I think that's a solid defence! what do you think?

DoaM

You've still not quite got it ... you are at DEFENCE stage at the moment, right? Your defence outlines the points that you'll raise to defend the claim ... the WITNESS STATEMENT stage expands on the defence points and provides the detail and evidence.

At the moment your point 6 is overloaded (IMO).

PS - in respect of point 4 (misleading signage), the legal term that describes waamo's post #51 is Contra Proferentem.

shawon007

DoaM wrote: »

You've still not quite got it ... you are at DEFENCE stage at the moment, right? Your defence outlines the points that you'll raise to defend the claim ... the WITNESS STATEMENT stage expands on the defence points and provides the detail and evidence.

At the moment your point 6 is overloaded (IMO).

PS - in respect of point 4 (misleading signage), the legal term that describes waamo's post #51 is Contra Proferentem.

Hi Doam,

Thanks for your reply.

I noticed point 6 being longer than the rest as this was taken from Coupon-mad's post on Abuse of Process. I wanted the information in the defence to highlight in detail the Abuse of Process to the court officials.

As for point 4, amended as below:

4. The terms on the Claimant’s signage was contradictory to the terms of the other signage in the car park. This is a case of Contra proferentem. 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. It is, therefore, denied that the contradicting nature of the Claimant's signage is capable of creating a legally binding contract.

What are your thoughts?

waamo

shawon007 wrote: »

Hi Doam,

Thanks for your reply.

I noticed point 6 being longer than the rest as this was taken from Coupon-mad's post on Abuse of Process. I wanted the information in the defence to highlight in detail the Abuse of Process to the court officials.

As for point 4, amended as below:

4. The terms on the Claimant’s signage was contradictory to the terms of the other signage in the car park. This is a case of Contra proferentem. 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. It is, therefore, denied that the contradicting nature of the Claimant's signage is capable of creating a legally binding contract.

What are your thoughts?

Rather than use the Latin I would refer to the Consumer Rights Act. It's primary legislation so they will struggle to counter it.

shawon007

Ok, Please see (hopefully) the final defence revision and I'll note any comments:

---

1. The defendant was the registered keeper and driver of the vehicle with registration number XXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. 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 entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

3. 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.

4. The terms on the Claimant’s signage was contradictory to the terms of the other signage in the car park. This violates the Consumer Rights Act 2015, Section 69(i). 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. It is, therefore, denied that the contradicting nature of 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.”

7. 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.

Coupon-mad

I'd change it at this stage, to this, then you don't have to have a quote and you are covering the fact that BW Legal sought to appeal the order, and that was outright refused by the Court:

6. The Protection of Freedoms Act 2012, Schedule 4, at paragraph 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.

6.1. 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 ever justify. This is known to have occurred at Caernarfon, Southampton, Isle of Wight and Warwick courts in recent weeks, all of which are in the public domain and proved with a copy of the Judge's Order summarily striking out the claims, which are tainted by the £60 falsely added by the cartel-style modus operandi of more than one robo claim solicitor. As an example, a copy of a recent Order by District Judge Grand is attached to this defence.

6.2. An application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge in that case (which is on all fours with this one) and a hearing was held on 11th November 2019. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:

(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed, and even if it had been on the signs) was in breach of POFA, due to paras 4(5) and 4(6).

(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed, and even if it had been on the signs) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.

(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

Attach a copy of DJ Grand's Order, and in fact wait a day as I asked CEC16 to add the 11th November Order (much more thorough I'm sure, although I haven't seen it yet) to his thread this week. Use that one if you can wait for it to be posted.

Normally we say no attachments with a defence, but bargepole tells me he is now attaching a copy of DJ Grand's Order to every defence he submits for people.

So that one attachment could result in a strike out! Fingers crossed...

shawon007

Thanks CM, Ill amend point 6 accordingly.

By attachment, do you mean when I email the courts with my defence, attach another document (DJ Grand's Order) to the email? Where can I get a copy of the Order?

Am I correct that I don't need to do anything by post - all online? I have to have my defence submitted by 16th Dec that leaves today and tomorrow :S