County court defence help

robfitch8

Hi Guys, I am currently in progress of submitting my defence to the county court.


The scenario is I overstayed a car park wherby I was a customer of the retail park but unaware ANPR was in use managed by TPS,

I have read the forums before so I'm aware of the many issues with TPS/ BW LEGAL.


The main grounds of my appeal are TPS having acknowledged my appeal, never provided an outcome of appeal or option to take the case to POPLA. (they did request extra evidence which was provided in the form of receipts/statements.)


I sent a email to TPS (including reference number) as i recieved a final notice around 1.5 months after point of appeal, having recieved no outcome of the appeal, questioning what happened to my appeal,the response was

"Thank you for your email.

Unfortunatley I am unable to re locate your appeal, please can you confirm when you sent this and how you appealled in?

Please do not hesitate to contact me for further assistance.

Kind Regards"

Once i then sent them the proof of the appeal they came back and said i lost my right to appeal due to the time taken, and that no further corrospondance would be entered into.

I specificly requested my popla reference from TPS, with no reply.

the car park in questions signage on entering stated 2 hours max stay, see signage for details, this is however normally completly blocked due to the layout of the car park, with cars exiting the car park blocking the sign, it also doesnt reference ANPR cameras are in use. the space i parked just inside the entrance to the car park and I wasnt drawn to any additional signage nor was it imediatly visiable.

I have spoken to a friend outside the forum and at present my draft is the below.
I would be greatful for any amendments/ ideas.

I will be submitting the final version on 08/2/19,

Thanks in advance if your able to help

Statement of Defence

I am xxxxxxxx, defendant in this matter and deny liability for the entirety of the claim for the following reasons:

I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, 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. The identity of the driver of the vehicle on the date in question has not been ascertained.
a. The Claimant did not identify the driver
b. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
3.
a. Whilst I followed Total parking solutions/BPA appeals processes and have edvidence they recieved and requested additional information from myself (which was supplied) , when I then chased up my appeal they later claim they couldnt find the appeal,which after a further chain of emails, followed that I lost my right to appeal and no further corrospondance would be entered into.
b. I had not recieved an appeal outcome or poppla reference to follow the BPA code of practice of which total parking is a member, even when I requested my poppla reference it was ignored by total parking solutions.
(see below BPA code of practice)
22.2 Whenever you issue a parking charge notice motorists must first use your procedures for resolving appeals, before being able to refer them to an independent appeal service. You must tell motorists at what stage the independent appeals service becomes available.
22.12 If you reject an appeal you must:
• tell the motorist how to make an appeal to IAS. This includes providing a template ‘notice of appeal’ form or a link to the appropriate website for lodging an appeal and a valid 10-digit verification code. Even if the verification code is automatically printed on an enclosed appeal form, it must still be in a prominent position on the first page of the rejection letter. • give the motorist a reasonable amount of time to pay the charge before restarting the collection process. We recommend that you allow at least 35 days from the date you rejected the challenge.

3. I was not in receipt of a compliant “Letter Before Court Claim”, under the Practice Direction, meaning the Defendant could not compile a Formal Response. This is in direct contradiction with paragraph 7 of the particulars where the Claimant’s solicitor states ‘The Claimant has complied with the requirements of the Pre-Action Protocol for Debt Claims’ and the Defendant believes that this is a deliberate attempt to mislead the court. The Defendant invites the Claimant to provide proof of their compliance.

4. Total Parking Solutions are not the lawful occupier of the land. I have 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.
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 prove 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. I have 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 right to bring action regarding this claim.


5. The signage was inadequate to form a contract with the motorist
a. The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read. The signage was only the wrong side of the road for drivers entering the car parking making it nearly impossible for a driver to attempt to read the sign as it is normally blocked by vehicles queuing to exit the car park . The sign at the entrance to the car park should be visible and also state that ANPR cameras are used at this site.

There is alternative car park signage in the car park but wasnt obvious/readable from my parked location. Car park signage font is below the required sizing. Industry standard signs recommend a minimum height of 3 inches in a bold font to have any readable impact at 30 feet.
(g)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

d. 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.


6(a) 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 £70 as per the PCN issued on 23/4/18. This appears to be an added cost with no apparent qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
b) The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

7(a)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.
b) The Defendant also disputes that the Claimant has incurred £104 legal representative costs and £25 court fees.
c) The Defendant has the reasonable belief that the Claimant has not incurred £70 costs to pursue an alleged £70 debt.
d) Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
e) The Claimant described the charge of £104 "legal representative costs’’ not "contractual costs".
CPR 27.14 does not permit these to be recovered in the Small Claims Court.
10. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
a. The Defendant denies that the driver would have agreed to pay the original demand of £70 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

I believe the facts stated in this defence are true.

KeithP

What is the Issue Date on your Claim Form?

A Defence is usually written in the third person, e.g. 3a) should start "Whilst the Defendant followed Total parking solutions...".

Redx

agreed, get rid of the word I and use THE DEFENDANT , and for TPS its mainly THE CLAIMANT (the only 2 words that are required)

use a UK spell checker on it as there are numerous spelling mistakes like POPLA , not POPPLA (correspondence is another)

5g and d are the same paragraph (repetition) and the letters are not consecutive, either ; plus in what would be 5b it is not "my parked location", it is "the location where the vehicle was parked" or something similar

the opening line should say just the single word DEFENCE, (no STATEMENT OF)

check the BARGEPOLE examples in the NEWBIES thread post #2 for any extra points and look how his are laid out, checking his headers and footers as well, also looking at how he words his defences

Coupon-mad

That is an old defence template. You need to adapt bargepole's concise one instead.

robfitch8

THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

TOTAL PARKING SOLUTIONS (Claimant)

-and-
xxxxxxxx(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 xxxxxxxxx, of which the Defendant is the registered keeper, was parked on the material date in a marked bay at Waddon retail Park, Croydon.

3. The Particulars of Claim state that the Defendant xxxxxx was the registered keeper. 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.
a. Whilst the defendant followed Total parking solutions/BPA appeals processes and have evidence they received and requested additional information from myself (which was supplied) , when the defendant then chased up my appeal they later claim they couldn’t find the appeal, which after a further chain of emails, followed that I lost my right to appeal and no further correspondence would be entered into.
b. I had not received an appeal outcome or popla reference to follow the BPA code of practice of which total parking is a member, even when I requested my popla reference it was ignored by total parking solutions.
(See below BPA code of practice)
22.2 whenever you issue a parking charge notice motorists must first use your procedures for resolving appeals, before being able to refer them to an independent appeal service. You must tell motorists at what stage the independent appeals service becomes available.

22.12 If you reject an appeal you must:
• tell the motorist how to make an appeal to IAS. This includes providing a template ‘notice of appeal’ form or a link to the appropriate website for lodging an appeal and a valid 10-digit verification code. Even if the verification code is automatically printed on an enclosed appeal form, it must still be in a prominent position on the first page of the rejection letter. • give the motorist a reasonable amount of time to pay the charge before restarting the collection process. We recommend that you allow at least 35 days from the date you rejected the challenge.


5. 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. The entrance signage to the retail park doesn’t communicate or physically mention that ANPR Cameras are in use at the retail park,

6.
a)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 they are not obvious upon entry to the retail park, also 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.
b) The signage was only the wrong side of the road for drivers entering the car parking making it nearly impossible for a driver to attempt to read the sign as it is normally blocked by vehicles queuing to exit the car park . The sign at the entrance to the car park should be visible and also state that ANPR cameras are used at this site.
There is alternative car park signage in the car park but wasn’t obvious/readable from my parked location. Car park signage font is below the required sizing. Industry standard signs recommend a minimum height of 3 inches in a bold font to have any readable impact at 30 feet.


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.
a) 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 £70.
b) The Defendant also disputes that the Claimant has incurred £104 legal representative costs and £25 court fees.

c) The Defendant has the reasonable belief that the Claimant has not incurred £129 costs to pursue an alleged £70 debt.

d) Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
e) The Claimant described the charge of £104 "legal representative costs’’ not "contractual costs".
CPR 27.14 does not permit these to be recovered in the Small Claims Court.

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 are true.

Name
Signature
Date

KeithP

Can you please answer the question in the first reply you received yesterday?

b) The Defendant also disputes that the Claimant has incurred £104 legal representative costs and £25 court fees.

They have certainly paid a £25 court listing fee.

robfitch8

When you say issued date do you mean the date I received the court notice?


if so 8/1/2019 I received notice and i completed the AOS,

The offence date was the 24/3/18

So im literally at the last couple of days before the defence needs submitting

KeithP

robfitch8 wrote: »

When you say issued date do you mean the date i received the court notice? if so 8/1/2019 and i completed the AOS, the offence date was the 24/3/18

No, neither of those dates.

When I say:

KeithP wrote: »

What is the Issue Date on your Claim Form?

...what I actually mean is "What is the Issue Date in the Issue Date box on your Claim Form?

I really do not believe I could've made the question any clearer, but I am open to any suggestions as to how I might do that.


On what date did you do the AoS?

robfitch8

8/1/2019,

Apologies, Im away from home at present and don't have the claim form on me.

Thanks for your help and time though.

Coupon-mad

The Particulars of Claim state that the Defendant xxxxxx was the registered keeper. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices.

Say what now?

KeithP

robfitch8 wrote: »

8/1/2019,

OK, let's work on that date for the time being.

With a Claim Issue Date of 8th January, you had until Monday 28th January to do the Acknowledgement of Service.

Did you do the AoS by that date?

Having done the AoS, you have until 4pm on Monday 11th February 2019 to file your Defence.

Perhaps a few more days than you thought.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.