Court Claim Form Received

Coupon-mad

We know what the NTK says; I told you what it says ('issue' date) - and that isn't what the POFA says.

And there is already an example defence on this forum for a false 'CN' (that was not a PCN at all), as I already posted about above.

Motherhubbad

Coupon-mad wrote: »

No.

VCS were relying on hybrid 'THIS IS NOT A PARKING CHARGE' bits of paper in 2017. Not a PCN at all. You can tell for sure, if the NTK was issued before day 29, then the first 'CN' was a hybrid 'NOT a PCN' one.

See the example VCS defence about hybrid CNs, in the NEWBIES thread; that example is there for the taking/using.

So that was the shoddy bit of paper taped to the drivers windscreen ? :rotfl:

The NTK was issused well before day 29.

Example found, I will correct my defence accordingly in the morning.
Thank you

Motherhubbad

IN THE COUNTY COURT

CLAIM No: XXXXXX

BETWEEN: XXXXXX

-and-

XXXXXXXX
________________________________________
DEFENCE STATEMENT
________________________________________


1. It is admitted that the Defendant is the registered keeper of the vehicle in question.

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

3. 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 yellow/black 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.
3a. Accordingly, it is denied that any contravention or breach of clearly signed/lined 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 Protection of Freedom Act 2012 ('PoFA') Schedule 4 has not being complied with.
4a. Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has subsequently never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.
4b. The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time and with mandatory wording.
4c. The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

5. The Particulars of Claim do not state whether the claimant is pursuing the Defendant as the registered keeper and/or the driver of the vehicle. This indicates that the Claimant has failed to identify a Cause of Action. 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. Furthermore the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as they do not specify how the terms were breached.
5a. 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.

6. The terms on the Claimant's signage are displayed in a font which is too small to be read from a parked and/or manouvering vehicle, is situated so far back from the road to make the terms totally unreadable and is in such a position that anyone attempting to read the tiny font upon exiting a vehicle would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. (SHOULD THESE POINTS BE BROKEN INTO SUB POINTS?)


7. The Claimant is put to strict proof that it has sufficient propietary 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.
7a. It is suggested that this novel twist (unsupported by PoFA 2012 - Schedule 4) 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 PoFA, is unlikely to have been in the contemplation of the Claimant's principal.
7b. 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 CN's to cars - following the procedure set out in paragraph 8 of 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 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.

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. (PERHAPS AMALGAMATE THIS POINT INTO #3?)

9. 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 Statement are true.

This is how it's looking, following advice I've been given so far. I've added a few notes (in red) regarding areas where i'm unsure. Thanks for the great feedback so far!

Redx

remove the word STATEMENT, its DEFENCE, nothing more


see the BARGEPOLE defences for clarity

Motherhubbad

Will do,
Thank you.

Coupon-mad

yellow/black envelope

I've seen one recently posted by someone and it was red, so change that to:

yellow/black or even a red envelope...

6. The terms on the Claimant's signage are displayed in a font which is too small to be read from a parked and/or manouvering vehicle, is situated so far back from the road to make the terms totally unreadable and is in such a position that anyone attempting to read the tiny font upon exiting a vehicle would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. (SHOULD THESE POINTS BE BROKEN INTO SUB POINTS?)

No, I wouldn't. Do put right the nasty Americanism bad spelling/typo I highlighted in red, though!

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. (PERHAPS AMALGAMATE THIS POINT INTO #3?)

No, it is about something different - rebutting the added costs of £60 (are the added damages/costs £60?).

Motherhubbad

Thanks again Coupon, I'll edit and submit accordingly. Appreciate all the advice.

Motherhubbad

Hello again guys, Defence was submitted to the court & claimant.
Notice of Allocation was received.
Documentation received from Claimant.

Only problem (perhaps DETRIMENTAL) is that I've not submitted my witness statement or evidence and it was due yesterday!
If I submit this over the weekend will it be accepted or have I stuffed it? Would massively appreciate any pointers.
Thank you.

Redx

try reading other threads, like this one


https://forums.moneysavingexpert.com/discussion/5987163/missed-witness-statement-help

Motherhubbad

That's great thank you, used the advanced search but to no avail!