BW Legal Letter of Claim

KeithP

Para 3 - leave out the words 'clearly signed/lined'. You don't want to inadvertently create the impression that the car park was 'clearly signed'.

Urb14

KeithP wrote: »

Para 3 - leave out the words 'clearly signed/lined'. You don't want to inadvertently create the impression that the car park was 'clearly signed'.

Thanks! Shall I submit this to MCOL now?

DEFENCE


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

2. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a red envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

3. Accordingly, it is denied that any contravention or breach of terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

4. The car appears to have been penalised for parking in a particular bay that was not marked as 'no parking' at all and the car was not obstructing other cars. It appeared to be a bay that could be used, as other drivers have been seen to do at that site before, and it seems the Claimant leaves this bay unmarked, to use it to entrap drivers, contrary to the doctrine of good faith and open dealing.

5. The Particulars of Claim does not state whether they believe 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.

6. 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.

7. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

8. 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 pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

9. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

10. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

11. It is denied that the Claimant fulfilled its requirements to erect suitable entrance signs in accordance with Schedule 1 of the IPC’s Code of Practice.

12. It is denied that the Claimant’s signs constitute a fair or relevant contract. The terms and conditions of the sign, or the acceptance of a liability, are not synonymous with a contract.

13. In the alternative, any contract that was established was invalid under the doctrine of impossibility of performance as the Defendant had no means of securing a valid parking permit. The terms and conditions of parking detailed on the Claimant's signs can only apply to those with the authority to park.

14. The POFA, 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.

15. 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.

KeithP

Urb14 wrote: »

Thanks! Shall I submit this to MCOL now?

I am not offering an opinion on your Defence either way, but definitely do not use MCOL to submit your Defence.

When the time comes, file your Defence with the County Court Business Centre by email using the guidance offered in post #25 above.

Coupon-mad

Looks good to go.

Urb14

Hi guys, my hearing is scheduled for the 8th November. Just realised that I was supposed to send copies of documents I am intending to rely upon at the final hearing as well as a witness statement, to the claimant and court over a month ago. The claimant did this within the deadline and sent me their evidence and witness statement.

Had a lot going on in the past couple of months unfortunately and didn't give this case as much attention as I should have (my own fault). My question is whether it is even worth showing up to court now?

Le_Kirk

It is obviously catching - you are the third one today and there have been quite a few recently. Look through today's threads and find the advice given in those. Alternatively search with witness statement too late as your keyword(s). Change the radio button from threads to posts. Then write your WS and get it to the court (hand delivered) on Monday

Coupon-mad

My question is whether it is even worth showing up to court now?

https://forums.moneysavingexpert.com/discussion/comment/76451314#Comment_76451314

Urb14

I am in the process of getting my WS written but after reading through the WS sent through by VCS, there are couple points things I could use some help with:

1) Additional £60

They say that the additional £60 is in line with IPC CoP, and rely on Beavis as well as Chaplair Ltd v Kumari (2015). They refer to it as 'debt recovery' and 'damages'.
I still think this is unfair and I don't want to have to pay more than I need to if I lose the case. What could I respond with, if anything?

2) Contract with landowner

They enclosed a copy of an agreement between VCS and Excel Parking Services. It doesn't say anywhere that Excel own the land, it just says that they are allowing VCS to occupy the land and issue PCN's. Also I heard Excel owns VCS anyway?

Sorry for the lengthy post guys, would really appreciate your help. Wish I didn't leave this so late.

Le_Kirk

1) Issuing of Non-PCN

They are referring to the hybrid non-PCN as a 'warning card'. Does it say anywhere in POFA Schedule 4 or IPC CoP that they can't do this? I've had a look at both and can't see why it wouldn't be allowed, as unusual as it is.

I thought I read last week about a success over VCS where the judge threw out the "this is not a parking....." and the DVLA have banned them from using it. Search for VCS threads from last week.

Castle

Le_Kirk wrote: »

I thought I read last week about a success over VCS where the judge threw out the "this is not a parking....." and the DVLA have banned them from using it. Search for VCS threads from last week.

This one perhaps?

https://forums.moneysavingexpert.com/showpost.php?p=76367359&postcount=36