Claim Form received, help!

Coffee321

SAR received.

I'm starting to build the defence. Can anyone help with what should be the actual crux of it.

The driver has not been identified yet.
There are photos of the car for 10mins outside a building (residence + Tesco).
The driver is a resident of the building.
There is no way to pay here, it just says 'you need a permit'.

Is this about grace periods only? (involving just the keeper)
Or identifying the driver and proving with tenancy agreement that the tenant rights to unload/load supersedes the PACE contract?

Sorry, I have been reading and reading these threads, but each case is so niche. Mine seems worryingly generic.

Umkomaas

Please go to the NEWBIES FAQ sticky, post #2 where there's a model defence outline (produced by legal expert bargepole) and use that to start your own defence. You can post it up here for critique, but be aware you might not get that as the forum is exceptionally busy and almost no one is legally qualified or gives advice on defences. So the more research into other defences that have been produced previously the more self confidence in your own might emerge.

For defences relating directly to the PPC pursuing you, do a forum search on keywords <name of PPC> defence and read others that have gone ahead of you or are in the process of current development. Draw some ideas from those.

HOW TO USE THE FORUM SEARCH FUNCTION:

Hit your 'Back' button to get back to the forum thread list. On the bar just above the threads you'll see the 'Search' function. Click on the 'Advanced Search' button and on the following page place your keyword(s) in the 'Search By Keyword(s)' and make sure the 'Show Results As' button (at the foot of the window) is changed from 'Threads' to 'Posts'.

Coffee321

I have found two defences I like, I have edited some particulars, but I think they both stand up independently. Can you see anything that needs changing.
I can't see any reason to talk through the driver being a resident.

Statement of Defence

I am XXXXXXXX, defendant in this matter.

1. It is likely to be a matter of common ground that this claim arises as the result of an alleged infraction brought about by the parking of a <Vehicle Info> motor vehicle registration number <Number Plate> on <insert date> at <Location> that in turn resulted in the issue of a parking charge notice by the Claimant.

2. As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.

3. I deny any liability in respect of the claim.

4. In the Particulars of Claim the Claimant fails to disclose the head or heads of action in which these proceedings are based and in any event no cause is disclosed that has a realistic prospect of success. Furthermore the lack of detail prevents my being able to respond in more detail.

5. The Claimant is a well-funded company with a dedicated legal staff and is a serial litigator. I submit that his issuing Particulars of Claim lacking in usable detail or that do not disclose a clear cause of action is not only remiss but smacks of a “Cut and Paste” approach to the issuing of proceedings. I further submit that this demonstrates a disregard for the dignity of the court and little concern for the Claimant’s duties in supporting the court to achieve the overriding objectives.

6. Additionally such scant Particulars leave Defendants to respond to what are at best vague details.

7. Whilst it is admitted that the Defendant was the registered keeper of the above vehicle at the time of the alleged event it is averred that the Defendant was not the driver at the relevant time and the Claimant is put to strict proof in this respect.

8. It is denied that the Claimant is the landowner of the property in question or that they have any other right or proprietary interest in the land or any demonstrable intention to occupy it sufficient to support this claim.

9. The Claimant is therefore put to strict proof that at the time of the alleged event they were in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner.

10. In the absence of strict proof I submit that the Claimant has no case and invite the court to strike the matter out.

Here is the second defence

1) It is denied that any 'parking charges or indemnity costs' (whatever they might be) are owed and any debt is denied in its entirety.
a) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

b) The Schedule of information is sparse of detailed information.

c) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success.

2) No evidence has been supplied by this claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver.

3) The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.

4) 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. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

5) I believe the term for such conduct is ‘robot-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

6) I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

7) The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

8) Under the Protection of Freedoms Act 2012, Schedule 4 (POFA), a registered keeper can only be held liable for the sum in any compliant 'Notice to Keeper' (a sum which is much less than the claim).

9) It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court. The lack of diligence in this claim demonstrates admirably that at best a ‘copy and paste' is the closest a human, legally trained or not, came to the information transmitted from claimant to the Money Claims Online system. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.
10) No Contract or evidence of Agreement between the Claimant and the land owner has been supplied, therefore it cannot be assumed that the Claimant even has authority to be issuing charge notices or even permits.

11) It is denied that there was a contract made between the Claimant and the driver through signage.
a) Due to the high height of the sign and lack of an entrance sign the ticket issued by the claimant was not in fact seen by the driver until they had reversed out of the bay and started driving forwards towards the exit. I believe this shows just how insufficient the placement of the signs is in the access road.

b) Notwithstanding the provisions of the POFA and/or the existing easements, and rights of way, it is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event.
c) Pace V Lengyel (from May 2017) showed that the Claimant's signs (including the one shown by the Claimant in this case) fail to enter into contract with the driver as implied by the Claimant. Nowhere on the sign does it inform the reader that by parking in the car park, he/she is entering into a contract with the Claimant. The words “contract’ or “agreement’ do not appear at all within the sign. The phrase “Terms and Conditions” are not synonymous with a contract. Furthermore the opening words of the sign appear to be design more to ward off trespassers than to enter into a contract with the driver.
d) As the signs failed to enter the Driver into a contract with the Claimant then any costs claimed on a contractual basis cannot be valid.

12) If the court is minded to accept that the Claimant has standing then I submit that the signs on site at the time of the alleged events were insufficient in terms of their numbers, distribution, wording and lighting to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.

13) In the absence of any signage that contractually bind a driver then there can have been no contract and the Claimant has no case.

14) This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

15) The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

16) I suggest the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out, due to Gladstones' template particulars for a private parking firm being 'incoherent', and ''providing no facts that could give rise to any apparent claim in law''.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a) Failed to create a contract with the driver through insufficient and incorrect signage.

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

Le_Kirk

They seem not to be in line with the latest recommended concisely written defences (NEWBIE thread post # 2 - Bargepole). All defence should be written in the third person and occasionally you slip into the first person. Also at one point you have said "the defence therefore asks ...." whereas it should be "the defendant therefore asks..."

Have a look at a couple of Bargepole's defences and see if you can incorporate anything that you need to refute what the PPC claim in their POC, assuming they did.

Coffee321

Thanks, will sort to be all 3rd person.

POC? what does that mean? (sorry)

MothballsWallet

Should be in post #5 of the Newbies thread which has the acronyms in it.

But, just this once, POC = Particulars of Claim.

Remember: the Newbies thread is your bible for dealing with these demons.

Coffee321

I have gone with bargepoles more concise defence. I've checked out the POC and there doesn't seem to be anything I haven't mentioned.
The only 'thing' I've found is throughout the CN ticket and all comms with PACE it is referred to as a Charge Notice (CN) and in the POC it is referred to as 'parking charge' (the 'PCN') and then as the PCN throughout the POC.
possibly the quote "The driver of the vehicle agreed to pay the PCN within 28 days of issue yet failed to do so." Just seems like a mad sentence to not refute.
Any other thoughts?

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Pace Recovery & Storage Ltd (Trading as Ace Security Services) (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 XXXXX at XXXXXXX that in turn resulted in the issue of a parking charge notice by the Claimant.

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. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom. ( Pace V Lengyel (from May 2017) showed that the Claimant's signs (including the one shown by the Claimant in this case) fail to enter into contract with the driver as implied by the Claimant. Nowhere on the sign does it inform the reader that by parking in the car park, he/she is entering into a contract with the Claimant. The words “contract’ or “agreement’ do not appear at all within the sign. The phrase “Terms and Conditions” are not synonymous with a contract. Furthermore the opening words of the sign appear to be design more to ward off trespassers than to enter into a contract with the driver.)

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. 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. 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 Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. The defendant denies the Claimant is entitled to any interest whatsoever. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

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

Coupon-mad

"The driver of the vehicle agreed to pay the PCN within 28 days of issue yet failed to do so." Just seems like a mad sentence to not refute.

This bit already deals with refuting that sentence:

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.

Your defence now looks ready to sign/date, scan & attach to an email to the CCBC.

Coffee321

That's great, thanks for your help.

I've tried for an hour not to ask this (looking through NEWBIES etc) but

Is there a specific way to send the email (I remember seeing a post about this) Does the email need any content or a specific subject? Obviously the attachment.

Le_Kirk

Coffee321 wrote: »

Is there a specific way to send the email (I remember seeing a post about this) Does the email need any content or a specific subject? Obviously the attachment.

Reread post # 3 in this thread. It is from KeithP and he tells everyone about their deadline and how to and where to, send the defence.