Court claim received - Help!!

Superbimmie18

Hi

I have been ignoring a PCN and subsequent debt collector letters for nearly a year now from Civil Enforcement Limited androgen the impression it wouldn't lead to anything and have today received a court claim form from the County Court Business Centre.

I have read through the Newbie thread which was very useful in understanding the process etc and I now want to look at making my defence and am hoping someone will be able to assist.

In short my main defence is that the signs had only recently been installed in the car park which is linked to my doctors surgery, I parked without realising and was told by the receptionist that the new restrictions were in place and to move my car. I therefore did so (car was parked for 12 mins which was the time it took to park and find out then move it) and then the PCN landed on through my door.

Any support and guidance on how to progress my defence will be extremely appreciated.

Redx

thats a witness statement (WS)


study the defences in post #2 of that NEWBIE thread , then draft one that is similar, especially look at CEL defences and the ones by member BARGEPOLE


once drafted , post it below for critique

Coupon-mad

In short my main defence is that the signs had only recently been installed in the car park which is linked to my doctors surgery, I parked without realising and was told by the receptionist that the new restrictions were in place and to move my car. I therefore did so (car was parked for 12 mins which was the time it took to park and find out then move it) and then the PCN landed on through my door.

You need to use Bargepole's short defence example as a base, then add in stuff about grace periods, by searching the forum for these words:

defence grace periods true

Change the default search to SHOW RESULTS AS POSTS and you will see defences.

What is the date of the claim?

What EXACT WORDS (minus the VRN) are in the Particulars of Claim on the left?

Superbimmie18

Thanks both. I am looking through the various suggested threads now. coupon-made, in answer to your points:
Date of the claim is 01\10\18
Particulars: Claim for monies relating to a Parking Charge for parking in a private car park managed by the claimant in breach of the terms + conditions. Drives are allowed to park in accordance with T+Cs of use. ANPR cameras and\or manual patrols as used to monitor vehicles entering + exciting the site.
Debt + damages claims the sum of ****
Violation date ****
Time in *** time out ***
PCN REF ****
Car reg *** Car park ****

Hope this is what you were after.

Coupon-mad

Yes, that's useful for us to know. Usual menu of choices template, 'and/or'!

So you know this much:

In short my main defence is that the signs had only recently been installed in the car park which is linked to my doctors surgery, I parked without realising and was told by the receptionist that the new restrictions were in place and to move my car. I therefore did so (car was parked for 12 mins which was the time it took to park and find out then move it) and then the PCN landed on through my door.

And should now draft a defence as advised, and show us:

You need to use Bargepole's short defence example as a base, then add in stuff about grace periods, by searching the forum for these words:

defence grace periods true

It will be quite easy to draft a defence once you see what's what.

KeithP

With a Claim Issue Date of 1st October, you have until Monday 20th October to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread.

Having done the AoS, you then have until 4pm on Monday 5th November 2018 to file your Defence.

Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


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 your Directions Questionnaire and then re-read post #2 of the NEWBIES thread to find out exactly what to do with it.

System

the signs had only recently been installed in the car park which is linked to my doctors surgery, I parked without realising and was told by the receptionist that the new restrictions were in place and to move my car.

That is a very powerful argument as long as a) you don't mind outing yourself as the driver and b) you can get the surgery to confirm when the new arrangements went in. Parking companies are supposed to allow a bedding in period but they are too fond of scamming.

The problem with a template is that they are all over the place when the simple facts of the matter as above, are actually what the judge wants. There is no way they can win as penalising someone for a short period, where there are new signs, and where the error was rectified could ever be covered by the Beavis principle.

Superbimmie18

Hi all, sorry for the delayed response I have had other things on that have prevented me from being able to dedicate the time to this to compile a good defence. I have now spent a bit of time following your guidance and reading various posts etc so have pulled together the below defence which hopefully looks OK to submit over the weekend.


One thing I wanted to check was that, if one of the points we are going to use is that the signs have only recently been installed, should this be put into the defence somewhere or would it just be a point to be made in the witness statement?


Thanks

---

In the Count Court ****
Claim No: ****
Between:
***** (Claimant)
-and-
**** (Defendant)

---

Defence

---

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


2.[FONT=&quot] The Claim Form issued on **/**/2018 by ****** was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “******* Limited”. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by ****** Limited, as the Claimants Legal Representative. Practice Direct 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer. CLAIM FORM SIGNED *** (CLAIMANTS LEGAL REP)[/FONT]


3. The Particulars of Claim state that Drivers are allowed to park in accordance with T+Cs of use. 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 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. i) The Claimant has chosen to ignore the BPA Code of Practice in relation to "grace periods" 13.1 which states:
"If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the 'parking contract' with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.


The driver had only been in the car park for 13 minutes and believes that this is not an unreasonable grace period for entering the car park, waiting for a space, parking in that space, and reading the terms and conditions, and a “reasonable period” to leave the car park.





ii) The Claimant has also chosen to ignore the BPA Code of Practice in relation to "new restrictions" 18.10 which states:
"Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/ temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones."




The signs had only recently been installed in the car park and it was the first time the driver had entered the car park since installation. In line with the grace periods the driver required more time and information to leave the car park.



[FONT=&quot]5. The Claimant are not the lawful occupier of the land. The Defendant has the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.
i) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
ii) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
iii) The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. [/FONT]



6. The Claimant is in breach of the Governments NHS Patient, visitor and staff parking principles regarding "Contracted-out car parking" which state:
"Contracts should not be let on any basis that incentivises additional charges, eg ‘income from parking charge notices only’."

7. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 as per the PCN issued on **/**/****. This appears to be an added cost with no apparent qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
The Protection of Freedom Act Para 4(5) states "The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified)."


8. i. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.

ii. The Defendant also disputes that the Claimant has incurred £50 legal representative costs. CPR 27.14 does not permit these to be recovered in the Small Claims Court. In 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.

iii. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.


9. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.
The defendant believes that the claim has no merit or reasonable prospects of success and invites the court to strike out the claim.


I believe the facts stated in this defence are true.

Coupon-mad

One thing I wanted to check was that, if one of the points we are going to use is that the signs have only recently been installed, should this be put into the defence somewhere or would it just be a point to be made in the witness statement?

Yes, add it in as point #4 and quote the BPA CoP about new restrictions where none existed previously.

Also mention the Govt 'NHS Parking Principles' (Google them) that are breached by this regime because the PPC third party makes all their money only from penalising people, which is against the will of Government and contrary to a specific instruction to NHS Trusts, in a formal Memorandum about such car parks, which applies equally to NHS clinics as it would to a hospital, regardless of the landowner, these Principles prevail.

I am going to disagree with IamEmanresu on this one and say, do not forego the protection of saying there can be no keeper liability, because this Claimant does not use the POFA and cannot hold a registered keeper liable under any applicable rule of law. I'd definitely include that in a CEL defence, don't go too narrow with your arguments, too early, given that CEL often still discontinue when a defence is comprehensive.

Superbimmie18

Thanks Coupon-mad, I have added into section 4 and also added a new section 6 re the NHS principles

Coupon-mad

And add in the usual thing about the Claimant not being able to rely upon the POFA Schedule 4.