Letter Before Claim

Scorpion84

Ok guys. Thanks for boosting my confidence in what I thought, from the beginning, was the right thing to do. As soon as I have anything ready I will post it here.

Coupon-mad

We certainly will - it's what we do every day here, you will see from other threads.

Scorpion84

Hi guys. After hours of trying to find something suitable to my case I finally managed to compose (or copy I should say) something. As all this legal jargon is all new to me I hope that you can help me understand whether it all makes sense. Before I paste it, let me type the particulars of claim so you could advise me whether it all links.

The driver of the vehicle with registration XXX (the ‘Vehicle’) parked in breach of the terms of parking stipulated on the signage (the ‘Contract’) at Beckenham Gym [address], on [date] thus incurring the parking charge (the ‘PCN’). The driver of the vehicle agreed to pay the PCN within 28 days of issue yet failed to do so. The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. THE CLAIMANT CLAIMS: £100 for the PCN, £60.00 contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest of £19.80 pursuant to s69 of the County Courts Act 1984 at 8.00% per annum continuing at £0.04 per day.

And my defence:

In the County Court
Claim Number: xxxxxxx

Between

XXX

v

Xyour nameX


DEFENCE



I am XXXX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXX when it was parked at XXXX. The NtK stated the contravention as “Failure to Pay for the Duration of Stay .”

3. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the Claimant's case that:
a. There was a contract formed by the Defendant and the Claimant on XXXXX
b. There was an agreement to pay a sum or parking charge
c. That there were Terms and Conditions prominently displayed around the site
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.

4. It is denied that:
a. A contract was formed
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.

5. It is further denied that the Defendant is liable for the purported debt.

Rebuttal of Claim

6. On the day in question the driver was an authorised patron of the onsite business, Gambado play centre, where spent £359 on a pre-booked birthday party. As stated on the sign (provided by the Claimant) customers of the centre can extend their stay, free of charge, by entering their vehicle registration on to the touch screen pad located at reception. The Defendant has already proved that patronage and it is the Claimant's own failure, caused by their complicated touch screen system forced on untrained staff at Gambado centre.
a) The Claimant appears to be indecisive whether the free parking is 2 or 3 hours, providing different photographic proofs, and at the same time misleading the regular users of the centre.

7. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

8. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £60 or £30 if paid within 14 days.

9. The signage on this site was inadequate to form a contract with the motorist so to the point XXX has now placed signage inside their venue warning customers who have parked in the car park.
a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice.
b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent.
c. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

10. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £60 to £160. The Defendant submits the added costs have not actually been incurred by the Claimant and are an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then the particulars fail to include “a copy of the contract or documents constituting the agreement”.
b. The Protection of Freedoms Act paragraph 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

Non-disclosure of reasonable grounds or particulars for bringing a claim:
11. The claimant are not the lawful occupier of the land. The Defendant has real 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 action regarding this claim.
a. 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.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
c. 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.
d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

12. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:

13. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.

14. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘robo-claim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’


Lack of standing.
The claimant is unlikely to be the the landowner of the car park in question, and will have no proprietary interest in it. This means that the claimant, as a matter of law, will have no locus stand to litigate in their own name. Any consideration would have been provided by the land owner, and only they would have been able to sue for any damages or trespass.
16. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

17. The Defendant believes the terms for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

19. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

20. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

I believe the facts stated in this Defence Statement are true.

Signed

Coupon-mad

That's an old template and surely your PCN wasn't for failure to pay?

I would use bargepole's concise defence from the NEWBIES thread and add your facts to that template, worded something like this:

On the day in question the driver was an authorised patron of the onsite business, Gambado play centre, where the family spent £359 on a pre-booked birthday party. Customers of the play centre can extend their stay, free of charge (beyond three hours and thus completely bypassing restrictions) by entering their vehicle registration on to the touch screen pad located at reception. The Defendant has already proved that patronage and it is the Claimant's own failure, caused by their complicated touch screen system forced on untrained staff at Gambado centre, that has resulted in a penalty that breaches the doctrines of open dealing, clear/fair terms and good faith.

Also, add this from IamEmanresu (now an archived user as he is too busy to post here) which he put in post #6:

There is clearly an implicit term there for customers to have a longer period - a term that cannot be overridden by a sign.

and of course add the other defence point he told you to include, see post #7.

Scorpion84

Wow! Did not expect such a quick response. Thank you Coupon- mad. Working on it now. Will post as soon as finished. I did read the Newbies thread. Don’t know how it happened that I missed the defence from bargepole. Thanks again

Scorpion84

Ok, so I was not sure at which point to add my facts. I combined it with the post #6 and #7. Hope it sounds good.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

xxxxxxxxxxxx (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date outside the Gambado play centre, [address].

3. The Particulars of Claim state that the Defendant !!!8220; was the registered keeper and/or the driver of the vehicle(s)!!!8221;. 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.

4. 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.

5. Further and in the alternative, 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. Additionally, the Claimant appears to be indecisive whether the free parking is 2 or 3 hours, providing different photographic proofs, and at the same time misleading the regular users of the centre.

6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. On the day in question the driver was an authorised patron of the onsite business, Gambado play centre, where the family spent £359 on a pre-booked birthday party. Customers of the play centre can extend their stay, free of charge (beyond three hours and thus completely bypassing restrictions) by entering their vehicle registration on to the touch screen pad located at reception. The Defendant has already proved that patronage and it is the Claimant's own failure, caused by their complicated touch screen system forced on untrained staff at Gambado centre, that has resulted in a penalty that breaches the doctrines of open dealing, clear/fair terms and good faith. There is clearly an implicit term there for customers of the play centre to have a longer period of parking - a term that cannot be overridden by a sign. Continuing with a claim, when the Claimant knows or ought to have known that the customers of the Gambado centre are likely to have an extended period of parking, is unreasonable.

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 parking charge notices, and to pursue payment by means of litigation.

9. 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.

10. 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 are true.

Name
Signature
Date

Coupon-mad

Looks good to go now. Much better flow to it.

Sign & date and email it a per KeithP's instructions.

Don't disappear from the forum for too long, as I hope you've read ahead in post #2 of the NEWBIES thread and seen that defence is not your only job. Read bargepole's post linked there, about COURT PROCEDURES.

And please (my standard plea now, to save us time) no asking us:

(a) what to do about Gladstones letter pushing for the case to be heard on the papers

(b) how to fill out the DQ

(c) whether to tick yes to mediation (bargepole explains why the answer is NO).

But come back in good time once you get your hearing date at your local court, so that you can show us your Witness Statement and evidence and the rubbish version Gladstones fling out at you...

Scorpion84

Great, thank you for your help. At least this one is done. I read some threads already about what’s coming after but keep reading. Will definitely post an update once it gets to the hearing. Thanks again

Scorpion84

Hi guys. Just got a quick question. I emailed my defence to court and then filled in the DQ and posted to both the court and the claimant. The case has been transferred to the county court hearing. Today I received an email from the claimant asking for the copy of the defence (giving me 7 days) as it was my job to send it to them as well. I understood that it is the Northampton who should send a copy to the claimant. Have I not followed some procedures?

KeithP

Scorpion84 wrote: »

Hi guys. Just got a quick question. I emailed my defence to court and then filled in the DQ and posted to both the court and the claimant. The case has been transferred to the county court hearing. Today I received an email from the claimant asking for the copy of the defence (giving me 7 days) as it was my job to send it to them as well. I understood that it is the Northampton who should send a copy to the claimant. Have I not followed some procedures?

You appear to have followed the correct procedure.

The CCBC will have sent a copy of your Defence to the Claimant.

I cannot understand how the Claimant could've responded to your Defence by telling the CCBC that they wished to continue, if they had not seen your Defence. They are clearly incompetent, but we already knew that.

Having said that, why not email a copy of your Defence to the Claimant?