Letter Before Claim - SCS Law & UKPC - CASE WON!

DAngel

Hi all I want to start writing my defence but have not received the CCC yet. What is the system in terms of the numbered points? I have read a few posts and googled, but still unclear what format to follow, or do i just make up my own numbering system using my defence points?

Le_Kirk

If you pop to the NEWBIE section post #2 and scroll down a bit, you will find about 17 defences, written by various posters. Just use one of those (probably a concise one written by Bargepole) and adapt it to suit.

DAngel

Hi guys, quick update to let you know that the Claim form has arrived today, Issue Date 9th July and i have Acknowledged Service of the claim via MCOL.

i'll be in the process of writing the defence over the next few days and will pop draft up here once it's done.

I believe I have until 11th August to file the defence, so starting nice and early so I can get your help.

Thanks in advance! Watch this space....

KeithP

DAngel wrote: »

Hi guys, quick update to let you know that the Claim form has arrived today, Issue Date 9th July and i have Acknowledged Service of the claim via MCOL.

I believe I have until 11th August to file the defence, so starting nice and early so I can get your help.

Almost right, but 11th August is a Sunday.

With a Claim Issue Date of 9th July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 12th August 2019 to file your Defence.

That's over four weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the last minute.


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

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

DAngel

Hello all, after a few weeks of reading countless forums and defence examples, i've managed to piece mine together as below.

Main arguments are:
primacy of contract
unclear signage
unclear parking terms

Whilst writing this, lots of thoughts have sprung to mind about what an absolute shambles this so-called operation has been from start to finish, in particular, how unclear the 'contract' is between the MA and UKPC, and the absolute lack of communication with residents.

Looking forward to your comments and suggestions for my defence:

Claim Number: *******

Between
xxxxxxx xxxxx (Claimant)

v

xxxxxxx xxxxxxx (Defendant)
DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

Background
3. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings.

3.1. The Defendant firmly believes parking by legitimate tenants does not constitute "unauthorised parking". This suggests an act of trespass not pleaded by the Claimant, and not able to be recovered from a party not in possession, in any case.

3.2. It is denied that the Defendants vehicle was parked, on a number of the material times, within the areas indicated on the Claimants evidence on the annotated site map. The court will be provided with an area map and photographs to demonstrate this. The Defendant avers that the Claimants photographic evidence will also confirm this.

Authority to Park and Primacy of Contract
4. It is denied that the Defendant was in breach of any parking conditions or was not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the tenancy agreement, which cannot be fettered by any alleged parking terms. The tenancy agreement contract terms provide the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives. This is detailed without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit.

5. There is no mention on the tenancy agreement of any potential parking charges, or contractual agreements with a private parking company. A copy of the tenancy agreement will be provided to the Court, together with witness evidence that prior permission to park had been given by both the occupier and leaseholder.

6. The Defendant avers that the operator signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease or tenancy agreement. There is a large body of case law to support this. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The court will be referred to similar cases should the matter proceed to trial.

7. Accordingly, it is denied that:

7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant

7.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

8. Further and in the alternative, it is denied that the claimant's signage set out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that “vehicles must be parked within marked bays”, giving no definition of the term 'marked bays’, nor indicating which bays are allocated to whom. Furthermore, the signage within the Claimants evidence also makes reference to the fact that “A valid parking permit must be displayed at all times”, yet residents were never informed of a permit scheme, nor issued with any such permits.

8.1. The Defendant submits that any signage present on the site even if seen by a motorist was not clear or legible in its construction, and therefore not able to form a contract. The Defendant brings to the attention of the Court A0QZ7658 UKCPS v Anonymous 4/7/14 at Bradford, and A3QZ1305 UKCPS v Anonymous 2/7/14 at Sheffield. The Judges in these cases found that UKCPS Ltd signs were ‘gibberish, too wordy and with conflicting terms’. The Defendant submits that the signs on this site fall into the same description and are therefore unable to form a contract even if seen.

8.2. The Defendant avers that the operator signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease or tenancy agreement. There is a large body of case law to support this. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The court will be referred to similar cases should the matter proceed to trial.

Alternative Defence - Failure to set out clearly parking terms
9. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67, in so far as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear throughout the site.

9.1 The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.

9.1.1 At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation. Signage on site was not clearly legible or visible and one of the nearest signs was mounted on the side of a wall, almost completely covered by shrubbery. Clear photographic evidence will be provided to the court.

9.1.2 The largest wording present on the signage states “NO UNAUTHORISED PARKING” This signage is forbidding, and does not constitute an offer of a contract. The defendant will rely on the judgements of DDJ Ellington in UKPC v Masterson B4GF26K6[2016].

9.2 The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye v Beavis distinguished.

10. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

11. The Defendant asks that the court gives consideration to striking out the claim on the Court's own initiative, as having no merit and no reasonable prospects of success. The Claimant's legal representatives, SCS LAW, have artificially inflated the value of the Claim by adding costs of £60 to each penalty charge, which has not actually been incurred by the Claimant. Given that the claim is based on an alleged contractual parking charge of £90 per penalty, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

12. It is denied that the Claimant has any entitlement to the sums sought.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

beamerguy

11. The Defendant asks that the court gives consideration to striking out the claim on the Court's own initiative, as having no merit and no reasonable prospects of success. The Claimant's legal representatives, SCS LAW, have artificially inflated the value of the Claim by adding costs of £60 to each penalty charge, which has not actually been incurred by the Claimant. Given that the claim is based on an alleged contractual parking charge of £90 per penalty, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

You need to show the judge on Abuse of Process
Abuse of Process ... District Judge tells BWLegal
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal&highlight=abuse+of+process

PLEASE READ POST #14 ON THIS THREAD BY COUPON-MAD

DAngel

Claim Number: *******

Between
xxxxxxx xxxxx (Claimant)

v

xxxxxxx xxxxxxx (Defendant)
DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

Background
3. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings.

3.1. The Defendant firmly believes parking by legitimate tenants does not constitute "unauthorised parking". This suggests an act of trespass not pleaded by the Claimant, and not able to be recovered from a party not in possession, in any case.

3.2. It is denied that the Defendants vehicle was parked, on a number of the material times, within the areas indicated on the Claimants evidence on the annotated site map. The court will be provided with an area map and photographs to demonstrate this. The Defendant avers that the Claimants photographic evidence will also confirm this.

Authority to Park and Primacy of Contract

4. It is denied that the Defendant was in breach of any parking conditions or was not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the tenancy agreement, which cannot be fettered by any alleged parking terms. The tenancy agreement contract terms provide the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives. This is detailed without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit.

5.1 There is no mention on the tenancy agreement of any potential parking charges, or contractual agreements with a private parking company. A copy of the tenancy agreement will be provided to the Court, together with witness evidence that prior permission to park had been given by both the occupier and leaseholder.

6. The Defendant avers that the operator signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease or tenancy agreement. There is a large body of case law to support this. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The court will be referred to similar cases should the matter proceed to trial.

7. Accordingly it is denied that:

7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant

7.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

8. Further and in the alternative, it is denied that the claimant's signage set out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that “vehicles must be parked within marked bays”, giving no definition of the term 'marked bays’, nor indicating which bays are allocated to whom. Furthermore, the signage within the Claimants evidence also makes reference to the fact that “A valid parking permit must be displayed at all times”, yet residents were never informed of a permit scheme, nor issued with any such permits.

8.1. The Defendant submits that any signage present on the site even if seen by a motorist was not clear or legible in its construction, and therefore not able to form a contract. The Defendant brings to the attention of the Court A0QZ7658 UKCPS v Anonymous 4/7/14 at Bradford, and A3QZ1305 UKCPS v Anonymous 2/7/14 at Sheffield. The Judges in these cases found that UKCPS Ltd signs were ‘gibberish, too wordy and with conflicting terms’. The Defendant submits that the signs on this site fall into the same description and are therefore unable to form a contract even if seen.

8.2. The Defendant avers that the operator signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease or tenancy agreement. There is a large body of case law to support this. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The court will be referred to similar cases should the matter proceed to trial.

Alternative Defence - Failure to set out clearly parking terms

9. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67, in so far as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear throughout the site.

9.1 The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.

9.1.1 At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation. Signage on site was not clearly legible or visible and one of the nearest signs was mounted on the side of a wall, almost completely covered by shrubbery. Clear photographic evidence will be provided to the court.

9.1.2 The largest wording present on the signage states “NO UNAUTHORISED PARKING” This signage is forbidding, and does not constitute an offer of a contract. The defendant will rely on the judgements of DDJ Ellington in UKPC v Masterson B4GF26K6[2016].

9.2 The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye v Beavis distinguished.

10. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

Costs on the claim - disproportionate and disingenuous

11. The Defendant asks that the court gives consideration to striking out the claim on the Court's own initiative, as having no merit and no reasonable prospects of success. The Claimant's legal representatives, SCS LAW, have artificially inflated the value of the Claim by adding costs of £60 to each penalty charge, which has not actually been incurred by the Claimant. Given that the claim is based on an alleged contractual parking charge of £90 per penalty, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

12. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

13. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

14. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

15. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

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

17. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

18. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:

''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...''

19. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

20. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

21. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.
Name

Signature

Date

DAngel

Hi all, does anyone have any thoughts on my defence above? I know I have some time still, but want to allocate time to make amendments this week if there are any.

@coupon-mad?

Thanks so much!

Redx

Write The judges stated , before It is ordered

DAngel

Thanks, ive added that. I've also removed the following paragraph:

3.2. It is denied that the Defendants vehicle was parked, on a number of the material times, within the areas indicated on the Claimants evidence on the annotated site map. The court will be provided with an area map and photographs to demonstrate this. The Defendant avers that the Claimants photographic evidence will also confirm this.

This is because it is unclear from the claimant's evidence - they have sent an annotated site map and can't decipher if this is the areas patrolled, or the areas signage were posted. They have included 2 maps in the evidence, both with different markings, and i was led to believe one of those represented signage, however not sure about the other one, so if in doubt, leave it out?