county court claim - please help

illusionsss

second draft defence for critique

In The County Court

Claim No: xxxxx

Between

Nxxxxx Pxxxxx Exxxxx LTD (Claimant)

-and-

xxxxx (Defendant)

_____________________________________
DEFENCE
_____________________________________


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


2. The Defendant is the registered keeper of the vehicle in question, registration xxxxx. The particulars of the claim, state the legal basis is brought against the Defendant for ‘breach of the terms of parking" by the driver. 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 when parking at xxxxx car park on xxxxx2018.


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


4. The Particulars of Claim state that the Defendant; was the registered keeper and/or the driver of the vehicle. 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.


5. The Defendant is the registered keeper of the vehicle. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice and/or Notice to Keeper failed to comply with the statutory wording and/or deadlines set by the POFA. Any non-compliance voids any right to ‘keeper liability’.


6. The Claimant's signs are unlit and not clearly visible (especially in the dark when the APNR cameras captured the vehicle). Terms and conditions text is displayed in a font which is too small to read by the naked eye while in a stationary or moving car. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.


7. The Claimant did not offer a sufficient grace period to the Driver as per the IPC Code of Practice (of which Nxxxxx Pxxxxx Exxxxx LTD is a member of). Paras. 15.1 states "Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site."

7.1. On xxxxx.2018, ANPR cameras captured the Driver entering the car park at xxxx and leaving the car park at xxxx, a total of 6 minutes, in the dark, time that is insufficient to read, understand and decide whether to stay or leave the site. The entrance signs of the car park are too far away for any driver to be able to read them from the car with the naked eye. The additional signs are within the car park and past the point where the ANPR camera has captured an entry time and therefore a grace period should be given to read the additional signs and decide whether to adhere to the terms of the contract or leave the car park.


8. The Claimant is put to strict proof of full compliance that it has sufficient proprietary interest in the land under the correct address, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.


9. IPC Code of Practice paras. 14.1 states "You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the Code.".

The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges with no evidence of how these extra charges have been calculated.
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. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.


10. The Defendant believes the costs on the claim are disproportionate and disingenuous.

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."

10.1. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.

10.2. The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
Not withstanding the Defendant's belief, the costs are in any case not recoverable.

10.3. The Claimant described the charge of £50 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.
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.

10.4. 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.

10.5. 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.

10.6. 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.

10.7. 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. In addition to the original PCN, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60. 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.

10.8. 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. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. The Defendant believes the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and 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. On the basis of the above, the Defendant requests the court to strike out the claim.


12. 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.


13. 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.


14. 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 the facts contained in this Defence are true.

Signature xxxxx

Date xxxxx

Big_Boi

Only quickly skimmed it, but there is a typo in paragraph 6. It should state ANPR, but you have APNR.

illusionsss

got it thank you

illusionsss

So I've read else where that if you submit defence online you might only have limited characters to write, so when i'm ready, how would I go ahead to submit this by the way?

Redx

KeithP will probably tell you that when he replies, it's why you were asked for the issue date of 17th june

illusionsss

right, i will wait, but since you helped with the defence, does it look ok to you now? I modified the bits you said

KeithP

illusionsss wrote: »

Issue date on the claim is 17 june. I acknowledged yesterday by the way.

With a Claim Issue Date of 17th June, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 22nd July 2019 to file your Defence.

That's over three 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.

illusionsss

Guys, I would like your input if it's worth sending a CPR31.14 to the solicitors or not?
Just posted the SAR on 1st class with proof of postage.

KeithP

You can only use CPR31.14 to request documents that they have mentioned in their Particulars of Claim.

What documents have they mentioned in their POC?

You can however, ask them for copies of the evidence they intend to rely on.

illusionsss

POC says in summary parked in breach of the terms of parking sipulated on the signage (the 'Contract')
Claimant claims £100 for PCN, £60 contractual costs and statutory interest of £15

Last week when I joined another forum I was advised to send a CPR31.14 and ask for copy of the landowner & pking co contract, kadoe contract between pking co and dvla and copy of site signage and map

However I briefed quickly on this forum and don't see anyone else sending CPR31.14's so I didn't either.