Defence assistance

KeithP

Readytowin wrote: »

- Issue date of Claim Form is 05/06/19
- AOS has been completed online

With a Claim Issue Date of 5th June, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 8th July 2019 to file your Defence.

That's over a week away. Loads of time to produce a 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.

Readytowin

Thanks very much Keith, I'll do that tonight and update this post with the following stages.

Readytowin

P.S - I was also told when requesting SAR from BW Legal that I could not obtain the original documentation from NCP (including photographic evidence) due to this having to put a hold on the case so they couldnt do it? I also asked if I were to contact NCP directly whether I would get the same response, I was told by BW Legal that yes, NCP would just refer me back to them so I cannot get this evidence before the court case basically.

Is this worth questioning / mentioning?

Readytowin

AND....

Should I counter claim for all the time lost in defending myself?

Redx

Just email a SAR to the DPO at NCP, regardless

A counter claim would be hard to prove, I suspect you mean claiming for costs, totally different, the newbies sticky thread tells you about claiming costs, please read it and the links as well

KeithP

Readytowin wrote: »

Thanks very much Keith, I'll do that tonight and update this post with the following stages.

Slow down. Stop rushing.

As I said, you still have over a week to file your Defence.

Leave it here for a few days for further comment.

Readytowin

Ok, fair point! Just want to get it done with but think its a good idea to wait for others to see it too. I will also email a SAR to NCP, thanks Redx.
Here is the final.

IN THE COUNTY COURT

CLAIM No:XXXX

BETWEEN:

NATIONAL CAR PARKS LIMITED (Claimant)

-and-

XXXXXXX (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 XXXXX of which the Defendant is the registered keeper, was present but not parked on the material date in the car park allocated to Company National Car Parks Limited at XXXXX. Due to the tightly spaced and small size of the car park, other vehicles were stuck and had to manoeuvre themselves out of the way in order for parked vehicles to leave their spaces, through a line of traffic of vehicles already waiting to park. No space was found on the day, so after waiting for some time the vehicle left the car park without parking.

3. The Particulars of Claim state that it is in relation to a parking contravention, where there is no evidence that the vehicle was parked in the car park at all – only that it entered the car park then left 14 minutes later.

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. The terms on the Claimant's signage are 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 can create a legally binding contract.

6. The terms on the Claimant's website under section 5.4 state:
“By parking your vehicle in the Car Park you consent to us capturing, using and processing your VRM and personal details via CCTV and ANPR for enforcement purposes, to calculate the relevant parking tariff (if applicable) and to recover any outstanding Parking Charge. This includes our right to request and obtain the details of a vehicle’s registered keeper from the DVLA.”
As the vehicle did not park, this would therefore not fall under the terms and conditions of which the Claimant states and there is no consent to the details being captured.

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. Under the British Parking Association Code of Practice, Version 7, Section 13, 13.1, states that drivers must have the chance to read the terms and conditions before they enter into a ‘parking contract’. If, having had that opportunity, they decide not to park but choose to leave the car park, they must be provided with a reasonable grace period to leave, as they will not be bound by a parking contract. The vehicle was present at the location for under 15 minutes and did not park – this time was taken by the vehicle searching for a space, waiting for others to leave.


9. 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.


10. To explain further the costs on the claim being disproportionate and disingenuous;
CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
o (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
o (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. 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.

12. 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.

13. 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.

14. 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.

15. 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.''

16. 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.
17. 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.

18. 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.

19. 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 also 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:

Readytowin

Redx wrote: »

A counter claim would be hard to prove, I suspect you mean claiming for costs, totally different, the newbies sticky thread tells you about claiming costs, please read it and the links as well

This is exactly what I meant, and I will read through, thank you

Readytowin

Going to submit my defence today, thanks all for the help and will keep you updated

Readytowin

Defence has been marked as received on MCOL, now I wait for the DQ right?