County court claim

bows

Plenty of reading done, perhaps too much?

this where i'm at not sure about the flow or if i will actually send a SAR
Thanks in advance..

In the County Court Business Centre
Claim Number: ___

Between:

X and Y

DEFENCE


Preliminary

1) The Particulars of Claim lack specificity and the methodology used by Premier Parking Solutions has been previously reported to the British parking association as harassment (X) . The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant invites the court to strike out the claim as having no prospect of success and/or to limit the Claimant only to the unevidenced allegations in the Particulars. Alternatively, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim and allow The Defendant the right serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings


2) The vague 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. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation. The Claimant has failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.


3) It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark X which is the subject of these proceedings. The vehicle is insured with [provider] with X named drivers permitted to use it.

4) It is admitted that on X the Defendant's vehicle was parked at and a valid ticket was purchased to park in this particular car park and displayed on the dash.

5) It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

6) Neither the Defendant, nor any other possible drivers, recall any 'parking charge notice' (PCN) fixed to the windscreen of the car at the time. Also as per initial correspondence with PPS in X, nor does the Defendant or any other possible drivers recall adequate signage to indicate parking zones or parking bays intended for private use. Had any contravention apparently taken place (and this is not confirmed), it can only have been that signage on and around the site in question was small, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice (CoP). Having only the vague Particulars of Claim (POC). Any contractual agreement - and thus any breach - is denied.

6.1 The Claimant was a member of the BPA at the time and committed to follow its requirements, and the Defendant puts the Claimant to strict proof of compliance with the applicable Code of Practice.

6.2. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver, that a ticket was issued to the windscreen or that signage was beyond adequate. The registered keeper was unaware of the PCN and does not admit to being the driver of the vehicle in question on the date in question, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of charge and prescribed Notice to Keeper letters in time/with mandatory wording.

6.3. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.3.1. there was a 'relevant obligation'; either by way of a breach of contract, trespass or other tort; and
6.3.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

6.4) It is unclear If ANPR was used or not. The law states If ANPR was used you don't get a windscreen ticket but the NTK has to arrive by day 14 after the alleged event, If there’s no ANPR then there has to be a windscreen ticket and the NTK must arrive between day 28 and 56 again with day zero being the day of the alleged event.
Since there was no windscreen ticket the PPC was recieved out of time and the NTK is non POFA 2012 compliant. The Protection of Freedoms Act 2012 Schedule 4 (the POFA) has not been complied with.

6.5 ) To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

7) In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar 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 - both upon entry to the site and throughout.

7.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
7.2. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
7.3. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee's ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
7.4 The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

8) The charge is, accordingly, unconscionable in this context, with ParkingEye v Beavis distinguished. From research of similar cases and given the woeful POC and lack of any previous information, the Defendant doubts that any legitimate interest or clear signage applies in this case.

9) This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free.

10). It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Premier Parking Solutions Ltd and that this chain of contracts was valid in its entirety on the date of the alleged offence. In addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

11) No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

12) The POFA does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. That sum cannot have exceeded the BPA CoP ceiling of £100 and the Claimant cannot recover additional charges.

13). The Claimant has inexplicably added 'costs or damages' bolted onto the alleged PCN, despite using a solicitor to file the claim, who must be well aware that the CPR 27.14 does not permit such 'admin' charges to be recovered in the Small Claims Court.

14). In any event, the Beavis case confirmed that a parking firm not in possession cannot plead their case in damages and could only collect the already inflated parking charge (in that case, £85) which more than covered the very minimal costs of running an automated/template letter parking regime.

15) The Claimant is put to strict proof to show how any alleged costs/damages have been incurred and that it formed a prominent, legible part of any terms on signage, and that it was, in fact, expended. To add vague damages plus alleged 'legal costs' on top is a wholly disingenuous attempt at double recovery, and the Defendant is alarmed by this gross abuse of process.

16). Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste PPS robo-claims at all, on the balance of probabilities.

17) According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

18) The Defendant intends to send a SAR to the Claimant, for response during October 2018, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/or in the event that the Court orders the Claimant to file & serve better particulars.

19) The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents, alleging 'debts' for parking is not something the Courts should be seen to support.

20) The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, BW legal, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).


21). It is denied that the Claimant is entitled to the relief claimed or any relief at all. In summary, it is the Defendant's position that the poorly pleaded claim discloses no cause of action, is without merit, and has no real prospect of success.
The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.


22) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

System

If a judge was to say to you Mr Bows, what are the facts and where is your evidence - something they want - what would you say? And would the following paragraphs stand up to that scrutiny?

1, 2, 6.5, 7.2, 7.3. 7.4, 14, 16, 17, 19, 20 and 21?

Have you repeated yourself or said essentially the same thing in different ways. A judge has a simple job which is clarity and certainty. Have you been able to help your case or hinder it?

nosferatu1001

Send the SAR
Its free
It cannot hurt you but only help
Stop prevaricating. Just get it sent out.

Have you had a look at the example by Bargepole, on post 2 of the newbies thread? It is much shorter, less waffle.

bows

Yes i have looked, trying to cut mine down at the moment, any suggestions welcome.

bows

Version 2, plus, where is a good SAR exemplar please?

IN THE COUNTY COURT

CLAIM No:xxxx

BETWEEN:

X

-and-

Y

DEFENCE

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

2. The Particulars of Claim lack specificity and the methodology used by Premier Parking Solutions has been previously reported to the British parking association as harassment (21/12/15) by the registered keeper. 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. 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) The facts are the Defendant is the registered keeper of vehicle registration mark x which is the subject of these proceedings. The vehicle is insured with [provider] with X named drivers permitted to use it. On X the Defendant's vehicle was parked at the X and a valid ticket was purchased to park in this particular car park and displayed on the dash.

4) Neither the Defendant, nor any other possible drivers, recall any 'parking charge notice' (PCN) fixed to the windscreen of the car at the time. Also as per initial correspondence with x in Y, nor does the Defendant or any other possible drivers recall adequate signage to indicate parking zones or parking bays intended for private use. It can only have been that signage on and around the site in question was small, unclear, with a font unreadable from a passing car, nor prominent and did not meet the British Parking Association (BPA) Code of Practice (CoP). Also, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom. 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. ) The Claimant is put to strict proof if otherwise.

5) The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver and that a ticket was issued to the windscreen or that signage was beyond adequate. The registered keeper was unaware of the PCN and request proof it was administered correctly on the date in question, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of charge and prescribed Notice to Keeper letters in time/with mandatory wording. Since there was no windscreen ticket the PPC was recieved out of time and the NTK is non POFA 2012 compliant.


6) The Claimant was a member of the BPA at the time and committed to follow its requirements, and the Defendant puts the Claimant to strict proof of compliance with the applicable Code of Practice.

7) 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.

8) 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.

9) The Claimant is put to strict proof to show how any further alleged costs/damages have been incurred and that it formed a prominent, legible part of any terms on signage, and that it was, in fact, expended. To add vague damages plus alleged 'legal costs' of £50 on top is also a wholly disingenuous attempt at double recovery, and the Defendant is alarmed by this gross abuse of process.

10) The Defendant intends to send a SAR to the Claimant, for response during October 2018, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/or in the event that the Court orders the Claimant to file & serve better particulars.

11) The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents, alleging 'debts' for parking is not something the Courts should be seen to support.

12) The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, BW legal, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).


13) 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. or to limit the Claimant only to the unevidenced allegations in the Particulars. Alternatively, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim and allow The Defendant the right serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings

14) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.


I believe the facts contained in this Defence are true.

Name
Signature
Date

bows

No reply so sent the second one...
Again, where is an SAR exemplar please?
Received a 'directions questionnaire today'

Umkomaas

bows wrote: »

Again, where is an SAR exemplar please?

Sorry if the forum doesn't jump instantly to attention! We are helping others too.

There are no templates, but you should get enough ideas from reading the following thread:

https://forums.moneysavingexpert.com/discussion/5849784/june-2018-start-of-the-new-ppc-and-dvla-fightback-gdpr-related

Alternatively, you could simply require one of the few regulars to do it for you! :cool:

bows

I'm sorry, i don't follow or understand the tone?

I was told in the first reply "There are many experts on here who will help with your defence" I am just trying to see if that is possible..

It has been a week between requests for an SAR exemplar,

I have received alot of critique and some advice on dates, other than that no writing has been done for me. Nor have i requested any or received any. Nor have i requested anything in a hurry

I have stated i am not well, twice. Yet been told to
"Stop prevaricating"
"Two weeks between posts is not going to get the job done in time"

So i'm sorry but your last post appears to be in contradiction to my intent or to the input i have received thus far, or my seemingly inadequate methodology. I don't intend to offend. I need help.

bows

Is there anyone who can please explain what or why i have received a 'directions questionnaire' which appears half filled in from BW legal?
thanks

The_Deep

Because BWL send them out. They do not have to, but they do. Everything they do is intended in some way to entrap you.

Do you fully understand the nature of the beast who torments you? If not watch this video.


http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41.