Is Claim Form valid? FURTHER UPDATE CLAIM HAS BEEN STRUCK OUT - ALL OVER?

Coupon-mad

No idea and no time to look at anything except new defences people write now.

Show us YOUR draft based on one you find when you search - adapt it, make it make sense and post it here.

You can easily tell if one you find among your results (and DON'T just read the first one!) is right.

Romeo5793

Here is my Defence. if you could give me your thoughts and any suggestions for improvement, I would be most grateful.

In The County Court

Claim No: XXXXXXX

Between:

Civil Enforcement Ltd (Claimant)

-and-

XXXXXXX (Defendant)

_____________________________________
DEFENCE
_____________________________________

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

1.2 Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's 'Parking Charge Notice ('PCN')'.

2. The Claim Form issued on XXXXXX by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by 'Civil Enforcement Limited' as the Claimant's Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

3. 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.

3.1. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was ‘in breach of terms + conditions (T+Cs)’. The generic ‘Claim for monies relating to a Parking Charge for parking in a private carpark managed by the Claimant in breach of the terms + conditions (T+Cs)’ does not constitute sufficient detail about what the Defendant’s claim actually is, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and has failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date on two separate visits on that date and neither stay contravened the terms and conditions.

4.1 The allegation appears to be based on images recorded by the claimants 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 for longer than the free parking times advised in the terms and conditions.

4.2 This site is a busy shopping site with multiple vehicles queuing up to both enter and exit at the same time. Here is only evidence of one ANPR camera recording images of both entrance and exit to the site. It is the Defendant’s understanding that the ANPR must have only had a sufficiently clear view to be able to record the entrance of the first visit on the material date and the exit of the second visit on the same date.

5. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN under circumstances where they could not be sure that their ANPR had accurately captured the vehicle’s movement.

6. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance camera at an enclosed car park with one entrance and exit where there would likely be no cars unconnected to patrons, no trespass or 'unauthorised' parking events.

7. They are furthermore required to explain why there are no PDT machines available at the site or, in fact, any way to pay or even register as a visitor to the premises served by the site, against the rights and interests of unsuspecting but circumspect visitors to the site who are at constant risk of being caught out by this trap.

8. 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.

9. The Claimant is put to strict 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, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

10. The Claimant has failed to comply with the strict requirements of the Protection Of Freedoms Act 2012, schedule 4 (PoFA 2012). The driver of the vehicle has not been identified. The Defendant admits to being the registered keeper of the vehicle on the material date, but there is no evidence of who was driving. As the Claimant has not identified the driver, it cannot be assumed the keeper/driver are one and the same at the time of the supposed contravention (POFA 2012).

11. Costs on the claim - disproportionate and disingenuous

11.1 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.

11.2 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..

11.3 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.

11.4 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.

11.5 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.

11.6 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). The Claimant is claiming £182 plus costs to a total of £267.68. 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.

11.7 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...''

11.8 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.

11.9 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.

11.10 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.


I believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

Great, that's the first part done.

The only thing I would remove would be the bits saying they haven't shown who the driver was. In your case, as you are sure about it being two visits, admit to being the driver (or deny being the driver if you weren't, and are only the keeper. Be honest and open).

Now, what about this?

you will be counter claiming for £300 due to data misuse under the DPA and having no reasonable cause to obtain the keeper's data from the DVLA at all.

If you are up for a counter-claim to force the case to a hearing, an initial court fee is payable (Google search to find out how much for £300) but you can potentially be compensated for this.

Romeo5793

Thank you. I am the RK, partner was driving - but tells me that the 2 visits is what happened as they were working round the corner and popped in before and after as wanted to look at new phones they were thinking of buying. The have emails from the client office showing that they were working there that day.

Anyway, I guess I will remove that part as I don't think that we are denying that I am the RK or that my partner was driving the car on that day or there is any value in trying to confuse this.

Removing: 10. The Claimant has failed to comply with the strict requirements of the Protection Of Freedoms Act 2012, schedule 4 (PoFA 2012). The driver of the vehicle has not been identified. The Defendant admits to being the registered keeper of the vehicle on the material date, but there is no evidence of who was driving. As the Claimant has not identified the driver, it cannot be assumed the keeper/driver are one and the same at the time of the supposed contravention (POFA 2012).

Thank you for your help, it is much appreciated.

Romeo5793

Regarding a counter claim, I can see what you are saying and part of me thinks it would be fun to do that and force them to admit how shoddy their tactics are in court. At what point in the procedure would I have to decide to do that - before or after I submit the defence on Wednesday by 4pm?

Can you remind me where the formatting info is for the defence as a PDF that I am going to email to the court please. Should I wait until the last minute i.e Wednesday?

Coupon-mad

You must decide now, as it goes WITH the defence and you pay a small fee (£35? check).

Read Henry Hippo's thread on pepipoo v UKPC (Google it and read).

I helped him win a counter claim on that forum where I sometimes post as SchoolRunMum. With a double visit, it is a classic case for you to counter-claim as they should NEVER have got your data at all.

Your defence MUST say this!

I am the RK, partner was driving - but tells me that the 2 visits is what happened as they were working round the corner and popped in before and after as wanted to look at new phones they were thinking of buying. The have emails from the client office showing that they were working there that day.

Anyway, I guess I will remove that part as I don't think that we are denying that I am the RK or that my partner was driving the car on that day or there is any value in trying to confuse this.

Noooo!! YOU MUST talk about the double visit!

Can you remind me where the formatting info is for the defence as a PDF that I am going to email to the court please.

Bargepole's thread about COURT PROCEDURES, linked in the NEWBIES thread post #2, under the red heading 'IMPORTANT - KNOW WHAT HAPPENS WHEN'.

Romeo5793

I have changed point 10. only to include the drivers motives as suggested:

10. The Claimant has failed to comply with the strict requirements of the Protection Of Freedoms Act 2012, schedule 4 (PoFA 2012). The driver of the vehicle has not been identified. The Defendant admits to being the registered keeper of the vehicle on the material date, but was not the driver. The driver was working at a client location nearby and made two separate short visits to the commercial premises at the site before and after work to look at new phones they were thinking of buying in the shop.

Coupon-mad

Good.

Read Henry Hippo's pepipoo thread v UKPC (not his one v District Enforcement). It's easy enough to copy that style of counter claim.

Romeo5793

Will do, I have time to organise it tomorrow if that's what we decide. Thanks again for all your help. You are a star, as I am sure you know!

Romeo5793

They've declined my invitation to cancel and discontinue the case "due to the stage it's at".

Is there any significance to this?