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Draft County Court Defence
tintin05100
Posts: 5 Forumite
About 6 months ago I parked in Leeds at the address of a college I was teaching at. The land however did not belong to the college (even though the same address was on a building as you entered the car park). The college told me my car was in the wrong place, I moved it to the correct car park. This took less than 10 minutes.
They sent me a parking charge through the post a couple of weeks later, I ignored them, contacted the business who owned the land and they refused to deal with me.
I followed the advice on this forum, ignored all the letters, debt collectors etc and received a LBC a couple of months ago. I engaged them trying to follow the Pre-Action Protocol and their legal team refused my request of a copy of their contract with the land owner. I wanted to see if they had permission to chase payments from people without allowing for any grace parking period. They have photographic evidence taken by an individual (presumably the disgruntled business owner), of my empty car, a small sign 7 feet up on the space next to my car, with a timestamp that shows the photos were all taken in under a minute of each other. The sign says the car park is for permit holders only.
I have only ever engaged the case as the keeper and not the driver. I've pasted my defence below. I've tried to read as much as possible and understand how to create a defence but I do struggle with the legal side so please bear with me.
Any comments are gratefully received -
In the County Court
Claim Number:
Between
xxxx (Claimant)
And
xxxx (Defendant)
Defence Statement
Preliminary Matters:
(1). The Claimant failed to provide a copy of their written contract when requested by the Defendant as required in the Practice Direction - Pre-Action Conduct and Protocols - 6(c).
No indication is given as to the Claimant’s contractual authority to operate at ********** as required by the Claimant’s Trade Association's (IPC) Code of Practice B1.1 which states:
‘1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an
operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.’
(2). The Claimant has not supplied the Defendant with all relevant documents in order to construct a proper defence.
I'd refer the court to Para 4 on proportionality, and point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the claim was issued by the Claimant's own legal team who must be fully aware of the correct procedure before issuing proceedings.
(3). The Claimant has failed to comply with their own trade association’s (IPC) code of conduct on ‘grace’ periods when parking -
‘15.1 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.
15.2 Drivers must be allowed a minimum period of 10 minutes to leave a site after a pre-paid or permitted period of parking has expired.’
The vehicle was parked for under 10 minutes whilst the driver ascertained the correct car park for their engagement as a lecturer at ***********, (the same address as the alleged parking violation).
On the basis of the above, we request the court strike out the claim for want of a cause of action.
Statement of Defence
I am XXXXX, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident. The Defendant denies liability for the entirety of the claim for the following reasons.
(1). The identity of the driver of the vehicle on the date in question has not been ascertained.
1. The Claimant did not identify the driver.
2. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
3. The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage.
(2) The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
1. The Claimant has disclosed no cause of action to give rise to any debt.
2. The Claimant has not supplied any evidence to demonstrate how ‘grace periods of parking’ are dealt with.
The Particulars of Claim are incompetent in disclosing no cause of action.
(4) The Claimant has not complied with the Practice Direction - Pre-Action Conduct and Protocols.
1. I'd refer the court to Para 4 on proportionality, and point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by the Claimant’s own legal team who clearly must be aware of the correct procedure before issuing proceedings.
(5). The Claimant are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
3. The Claimant is put to 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.
(6)
1. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule specifically disallows.
2. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
(7) The signage was inadequate to form a contract with the motorist.
1. The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read.
2. The sign fails because it must state what the ANPR data will be used for. This is an ICO breach and contrary to the Code of Practice.
3. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.
(8) The driver did not enter into any 'agreement on the charge', no consideration flowed
between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
(11)
1. 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 ‘local’ recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges of £60 to the £100 with no evidence of how this extra charge has 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.
I believe the facts stated in this defence are true.
(Name) (Signature) (Date)
They sent me a parking charge through the post a couple of weeks later, I ignored them, contacted the business who owned the land and they refused to deal with me.
I followed the advice on this forum, ignored all the letters, debt collectors etc and received a LBC a couple of months ago. I engaged them trying to follow the Pre-Action Protocol and their legal team refused my request of a copy of their contract with the land owner. I wanted to see if they had permission to chase payments from people without allowing for any grace parking period. They have photographic evidence taken by an individual (presumably the disgruntled business owner), of my empty car, a small sign 7 feet up on the space next to my car, with a timestamp that shows the photos were all taken in under a minute of each other. The sign says the car park is for permit holders only.
I have only ever engaged the case as the keeper and not the driver. I've pasted my defence below. I've tried to read as much as possible and understand how to create a defence but I do struggle with the legal side so please bear with me.
Any comments are gratefully received -
In the County Court
Claim Number:
Between
xxxx (Claimant)
And
xxxx (Defendant)
Defence Statement
Preliminary Matters:
(1). The Claimant failed to provide a copy of their written contract when requested by the Defendant as required in the Practice Direction - Pre-Action Conduct and Protocols - 6(c).
No indication is given as to the Claimant’s contractual authority to operate at ********** as required by the Claimant’s Trade Association's (IPC) Code of Practice B1.1 which states:
‘1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an
operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.’
(2). The Claimant has not supplied the Defendant with all relevant documents in order to construct a proper defence.
I'd refer the court to Para 4 on proportionality, and point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the claim was issued by the Claimant's own legal team who must be fully aware of the correct procedure before issuing proceedings.
(3). The Claimant has failed to comply with their own trade association’s (IPC) code of conduct on ‘grace’ periods when parking -
‘15.1 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.
15.2 Drivers must be allowed a minimum period of 10 minutes to leave a site after a pre-paid or permitted period of parking has expired.’
The vehicle was parked for under 10 minutes whilst the driver ascertained the correct car park for their engagement as a lecturer at ***********, (the same address as the alleged parking violation).
On the basis of the above, we request the court strike out the claim for want of a cause of action.
Statement of Defence
I am XXXXX, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident. The Defendant denies liability for the entirety of the claim for the following reasons.
(1). The identity of the driver of the vehicle on the date in question has not been ascertained.
1. The Claimant did not identify the driver.
2. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
3. The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage.
(2) The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
1. The Claimant has disclosed no cause of action to give rise to any debt.
2. The Claimant has not supplied any evidence to demonstrate how ‘grace periods of parking’ are dealt with.
The Particulars of Claim are incompetent in disclosing no cause of action.
(4) The Claimant has not complied with the Practice Direction - Pre-Action Conduct and Protocols.
1. I'd refer the court to Para 4 on proportionality, and point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by the Claimant’s own legal team who clearly must be aware of the correct procedure before issuing proceedings.
(5). The Claimant are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
3. The Claimant is put to 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.
(6)
1. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule specifically disallows.
2. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
(7) The signage was inadequate to form a contract with the motorist.
1. The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read.
2. The sign fails because it must state what the ANPR data will be used for. This is an ICO breach and contrary to the Code of Practice.
3. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.
(8) The driver did not enter into any 'agreement on the charge', no consideration flowed
between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
(11)
1. 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 ‘local’ recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges of £60 to the £100 with no evidence of how this extra charge has 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.
I believe the facts stated in this defence are true.
(Name) (Signature) (Date)
0
Comments
-
You haven't said, but have you received a County Court Claim Form?
If so, what is the Issue Date on that Claim Form, and did it come from the County Court Business Centre in Northampton, or from somewhere else?0 -
It's just Defence, no Statement need be mentioned
Read the defences by member bargepole so you can see the basics0 -
Hi,
I've received the forms from the County Court in Colton. I replied using the MCOL and have until next week to submit my defence0 -
My mistake, the County Court is in Northampton, the issue date was the 13th June 20190
-
That is unusual. Whereabouts is Colton? I cannot find such a place which has a County Court.tintin05ryan wrote: »I've received the forms from the County Court in Colton.
Ok, what is the Issue Date on your Claim Form?tintin05ryan wrote: »I replied using the MCOL and have until next week to submit my defence0 -
Sorry, I posted a moment ago with a correction saying the court is Northampton and the issue date is the 13th June 20190
-
Phew! That's better.tintin05ryan wrote: »My mistake, the County Court is in Northampton, the issue date was the 13th June 2019
With a Claim Issue Date of 13th June, you had until Tuesday 2nd July to do the Acknowledgement of Service. Did you do the AoS by that date? I guess that's what you mean by 'I replied using the MCOL'.
Having done the AoS, you have until 4pm on Tuesday 16th July 2019 to file your Defence.
As you know, that's just a few days away.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.
0 - Sign it and date it.
-
Typo in there KP0
-
Yes, I did the AoS in time.
I've looked at other people's defence templates and tried to incorporate what I understand. I don't want to have to explain to a judge something I really don't comprehend but I'm not sure that's the right approach.
Frustrated I'm in this position and just glad there's so many people on this forum giving up their time to help.
I'll keep reading other people's defences, just hope I'm on the right track.
Thanks0
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