Excel Parking Letter Before Claim

KeithP

Surfit79 wrote: »

Hi KeithP thanks for your message. The date on the claim form from Northampton is the 16th July.

Surfit79 wrote: »

I have to file my defence before the 15th August.

With a Claim Issue Date of 16th July, you have until Monday 5th August to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 19th August 2019 to file your Defence. A few more days than you thought.

That's nearly four weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the last minute.


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 "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep 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.

Surfit79

Hi all,


Just preparing my defence for forthcoming court date.


Please can you cast your eyes over it and give me some feedback...…?


Many thanks as always!




I am XXXX, the defendant in this matter and was the registered keeper of vehicle XXXX. I currently reside at XXXX


I deny I am liable for the entirety of the claim for the following reasons;


I rely on the doctrine of Frustration of Contract in my defense. Whilst being driven by a colleague along the High Pavement Rd, Nottingham on the 5th February 2019 I was struck down by a severe asthma attack & required immediate emergency medical attention. High Pavement Rd is a road governed by double yellow lines thus rendering it illegal to stop at any time.


With this in mind the driver pulled into County House Car Park to look for a space to park and assess my condition, but unfortunately there was none available.


Another passenger in the car at the time Mr P**** A*****r retrieved a ****** inhaler from the boot of the vehicle we were traveling in and with this I was able to bring my asthma attack under control.


As confirmed by the ANP images kindly supplied by the PPC confirm this event took 17 minutes.


As a lifelong sufferer of Asthma it is with regret that these circumstances occurred on land managed by Excel Parking Ltd.


There was, in this case, a change in circumstances which was not the fault of either party and which rendered it impossible for the driver to perform the contract.


Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case there was no loss to the Claimant at the time the contract was breached, and so they have no valid claim for £160GBP + £25 court fee or any amount at all. The case of Nicholl and Knight v Ashton, Eldridge & C0 (1901) 2 KB 126 provides authority for this.


Furthermore the fact that my vehicle did not occupy a space in the carpark, because the carpark was full further confirms there was no loss to the claimant. I am pleased to provide a witness letter of corroboration from Mr A**** ( a former RAF pilot and upstanding member of the community) as per the sequence of events & also a letter from Nottingham University Hospital NHS Trust confirming my attendance to A&E post the event.


The Court is invited to strike out the claim of it’s own volition as having no merit and no reasonable prospects of success.


I confirm that the above facts and statements are true to the best of my knowledge and recollection.


Yours sincerely








****************

Le_Kirk

Did you read any of the example defences posted in the NEBWIE sticky, especially those written by Bargepole? Even if the circumstances don't fit with yours, you will see the style - especially the fact that defences are written in the Third Person, so "I" becomes "the Defendant" - and also all the other legal/technical points you can use.

Surfit79

Hi all!


Please would you kindly cast an eye over my defence letter to the county court and let me know if you feel it's sufficient...….?


Thanks again to all who have offered support and advice.






IN THE COUNTY COURT





CLAIM No: xxxxxxxxxx





BETWEEN:





UK CAR PARK MANAGEMENT LTD (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 never parked on the material date in a marked bay, indeed no bays were available. The Defendant suffered an Asthma attack and his colleague entered the vehicle into County House car park temporarily to offer his colleague medical treatment. With this in mind no contract was intentionally entered into. On the contrary, this was the response to a medical emergency. Witness statements are available to this effect, as well as a confirmation letter from Nottingham University Hospital A&E Dept.





3. I rely on the doctrine of Frustration of contract in my defense. Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case there was no loss to the Claimant at the time the contract was breached, and so they have no valid claim for £160 + £25 court fee or any amount at all. The case of Nicholl and Knight v Ashton, Eldridge & C0 (1901) 2 KB 126 provides authority for this.


4. 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.


5. 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.





6. The Claimant is put to strict proof that it has sufficient prorpietary 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.





7. 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.





8. 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

Redx

personally I would start with the concise defence by bargepole , then add no landowner authority as seen in other defences and add the ABUSE OF PROCESS paragraphs by coupon-mad, and renumber all paragraphs.

plus add in a point or two about the facts of the case/contravention/why the defendant is not liable.

although it can be stated about a medical emergency etc, I would leave all the personal stuff until the WS , ALONG WITH THE EXHIBITS too

there is no S in DEFENCE either


and the claimant is Excel , not UK CPM


and its not a letter, its a DEFENCE, which will be signed , dated and emailed as a legal document to the CCBC (which is not a court at all, its a government office in Northampton, like the DVLA in Swansea) , manned by civil servants

no court has been allocated yet, so you wont be contacting one

Surfit79

Hi all - please can I ask for someone to cast their eye over my third attempt at a defence? I really need to submit before I go on holiday.


Thanks very much!



IN THE COUNTY COURT


CLAIM No: xxxxxxxxxx


BETWEEN:


Excel Parking Services LTD (Claimant)


-and-


xxxxxxxxxxxx (Defendant)





________________________________________


DEFENCE


________________________________________





Background





1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when entering County House Car Park on the 5th February 2019.





1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'. for the lawful conduct described below.





1.2. The allegation appears to be that the 'Parked without payment tariff for the vehicle registration mark of the vehicle on site' based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper parking in a designated parking space. Clearly there will be Excel Parking Services staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.





1.3. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was never parked on the material date in a marked bay, indeed no bays were available. The Defendant suffered an Asthma attack and the driver entered the vehicle into County House car park temporarily to safely offer the defendant medical treatment away from the public highway. With this in mind no contract was intentionally entered into. On the contrary, this was the response to a medical emergency which lasted 17 minutes. Witness statements are available to this effect, as well as a confirmation letter from Nottingham University Hospital A&E Dept.





1.4. This is clearly a case of Frustration of contract. Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach.





No standing or authority to form contracts and/or litigate





2. 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 against patrons of the County House Car Park.





Costs on the claim - disproportionate and disingenuous





3.0. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –


(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and


(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.





3.1. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.





3.2. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.





3.3. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.





3.4. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.





3.5. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.





3.6. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:


''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''





4.0. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.





4.1. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.





4.2. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.





Statement of Truth:





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





Name


Signature


Date

Surfit79

Hi all - please can I ask for someone to cast their eye over my third attempt at a defence and give feedback before I submit.


Thanks very much!



IN THE COUNTY COURT


CLAIM No: xxxxxxxxxx


BETWEEN:


Excel Parking Services LTD (Claimant)


-and-


xxxxxxxxxxxx (Defendant)





________________________________________


DEFENCE


________________________________________





Background





1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when entering County House Car Park on the 5th February 2019.





1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'. for the lawful conduct described below.





1.2. The allegation appears to be that the 'Parked without payment tariff for the vehicle registration mark of the vehicle on site' based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper parking in a designated parking space. Clearly there will be Excel Parking Services staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden 'pitfall or trap'. The ANPR cameras represent disproportionate and excessive data processing, given the nature of this location, and the Claimant's DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office's ANPR surveillance camera Code of Practice.





1.3. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was never parked on the material date in a marked bay, indeed no bays were available. The Defendant suffered an Asthma attack and the driver entered the vehicle into County House car park temporarily to safely offer the defendant medical treatment away from the public highway. With this in mind no contract was intentionally entered into. On the contrary, this was the response to a medical emergency which lasted 17 minutes. Witness statements are available to this effect, as well as a confirmation letter from Nottingham University Hospital A&E Dept.





1.4. This is clearly a case of Frustration of contract. Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach.





No standing or authority to form contracts and/or litigate





2. 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 against patrons of the County House Car Park.





Costs on the claim - disproportionate and disingenuous





3.0. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –


(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and


(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.





3.1. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.





3.2. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.





3.3. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.





3.4. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.





3.5. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.





3.6. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:


''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''





4.0. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.





4.1. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.





4.2. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.





Statement of Truth:





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





Name


Signature


Date

Le_Kirk

Order was identical in striking out both claims without a hearing:

''IT IS ORDERED THAT The claim is struck out as an abuse of process

Needs to be: -

Order was identical in striking out both claims without a hearing and here the defendant quotes from the cases cited:

''IT IS ORDERED THAT The claim is struck out as an abuse of process

This is to make sure that the judge knows you are quoting from a previous case rather than issuing an instruction/order to the court.