VCS - MCOL - Defence

isthisajoke

Hello,

I am here from pepipoo. Thread;
http:// forums.pepipoo.com/index.php?showtopic=106337&st=0[/url]

Where we are up to;
We are at the defence stage which needs to be submitted asap.
Claim Issued on 02/07/2019
AOS completed 12/07/2019
Defence to be submitted by 4pm 31/07/2019

Summary;
Alleged offence was captured via ANPR of car in car park for more than 2 hours.
NTK was never received from VCS. First contact was 'Final Reminder Notice' (Feb 2016) demanding £100 with no proof of alleged offence (12/2015).
LBC was sent and so SAR requested in which NTK was included.
4 people where insured to drive the car on the date of the alleged offence and the RK was not the main user of the vehicle and due to the time passed it is impossible to say who the driver was.

Defence first draft in fist post.

isthisajoke

I ………………., the Defendant in this matter am registered keeper of vehicle ………………

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

2. The Defendant denies any abuse of the parking facilities or in fact any breach.

3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the
Protection of Freedoms Act 2012 (POFA). By not serving a notice containing statutory
text (or) within the required time period, the Claimant is unable to hold the Defendant
liable under the strict ‘keeper liability’ provisions.

3.1 No Notice to keeper was ever served on the Defendant, despite this being a requirement of the POFA at Section 4(5)(b) which states; The notice must be given by sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
As such the Claimant has never gained the right to claim the unpaid parking charge from the registered keeper.

4. The Defendant denies any liability as the registered keeper as established in the case ‘Excel v Smith’ that a registered keeper cannot be assumed to be the driver nor held liable on any flawed citation of CPS v AJH Films.

4.1 The Defendant denies any knowledge of who was driving the vehicle on the date of the alleged offence due to the amount of time passed and the number of people (4) insured to drive the car on the date of the alleged offence.

5. The POFA, 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.

6. Signage in place was not prevalent and not brought to the attention of motorists
sufficiently as to comply with the code of practice of the Claimant’s accredited trade
association.

7. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis
case) which was dependent upon an undenied contract, formed by unusually prominent
signage forming a clear offer and which turned on unique facts regarding the location and
the interests of the landowner.

8. The Defendant questions that the Claimant has authority to bring this claim. The proper
Claimant is the landowner. Strict proof is required that there is a chain of contracts
leading from the landowner to Vehicle Control Services Limited and that Vehicle Control
Services Limited have the locus standi to bring this matter to court.

9. For all of the reasons stated above the Defendant asks that the learned judge utilise the
discretionary powers of case management and strike out this claim as vexatious and
frivolous.

10. Abuse of process - ... (still reading up on this)

STATEMENT OF TRUTH



Any advice would be greatly appreciated.

KeithP

isthisajoke wrote: »

We are at the defence stage which needs to be submitted asap.
Claim Issued on 02/07/2019
AOS completed 12/07/2019
Defence to be submitted by 4pm 31/07/2019

You have a few more days than you thought.
Your Defence does not need 'to be submitted asap'.

With a Claim Issue Date of 2nd July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 5th August 2019 to file your Defence.

That's nearly three weeks away. Loads of time to produce a good 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.

isthisajoke

Thank you KeithP,

Current Draft - I have added a large section on abuse of process any advice appreciated;
Also a couple of Q's;
Is the claim struck out during the hearing or before/after?
The defendant is self employed and can not take time to attend court (runs a toddlers group that many people rely on) so can this be dealt with without attending and keeping a good chance of winning?



I ………………., the Defendant in this matter am registered keeper of vehicle ………………

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

2. The Defendant denies any abuse of the parking facilities or in fact any breach.

3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the
Protection of Freedoms Act 2012 (POFA). By not serving a notice containing statutory
text (or) within the required time period, the Claimant is unable to hold the Defendant
liable under the strict ‘keeper liability’ provisions.

3.1 No Notice to keeper was ever served on the Defendant, despite this being a requirement of the POFA at Section 4(5)(b) which states; The notice must be given by sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
As such the Claimant has never gained the right to claim the unpaid parking charge from the registered keeper.

4. The Defendant denies any liability as the registered keeper as established in the case ‘Excel v Smith’ that a registered keeper cannot be assumed to be the driver nor held liable on any flawed citation of CPS v AJH Films.

4.1 The Defendant denies any knowledge of who was driving the vehicle on the date of the alleged offence due to the amount of time passed and the number of people (4) insured to drive the car on the date of the alleged offence.

5. Signage in place was not prevalent and not brought to the attention of motorists
sufficiently as to comply with the code of practice of the Claimant’s accredited trade
association.

6. The Defendant questions that the Claimant has authority to bring this claim. The proper
Claimant is the landowner. Strict proof is required that there is a chain of contracts
leading from the landowner to Vehicle Control Services Limited and that Vehicle Control
Services Limited have the locus standi to bring this matter to court.

7. 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.

8. 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."

8.1. The Defendant also disputes that the Claimant has incurred £60 debt collection costs.

8.2. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. Not withstanding the Defendant's belief, the costs are in any case not recoverable.

8.3. The Claimant described the charge of £60 "debt collection charge" not "contractual costs". Civil Procedure Rule (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

8.4. 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.

8.5. 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.

8.6. 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.

8.7. 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.

8.8. 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...''

9. 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.

10. 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. 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.

12. 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.

Name xxxxx

Date xxxxx

Redx

isthisajoke wrote: »

Also a couple of Q's;
Is the claim struck out during the hearing or before/after?
The defendant is self employed and can not take time to attend court (runs a toddlers group that many people rely on) so can this be dealt with without attending and keeping a good chance of winning?

it can be struck out at any time by the judge, its their call

it can also be discontinued by the claimant at any time too , or if they fail to pay the hearing fee

it can be asked to be heard "on papers" by the defendant as long as the defendant writes to their local court over a week prior to the hearing, so say 10 days before

keeping a good chance of winning is by attending court on the day to counter anything, not attending degrades those chances significantly

ie:- you cannot have the cake and eat it

isthisajoke

Thanks Redx,

I cant see anywhere in the newbies thread about choosing a date, is it possible to choose a date/request a date that doesn't clash with the group?

Also any comments on the draft defence?

Redx

the DQ stage tells you about telling the court about when the defendant is unavailable , which is after any defence is filed

there is a walkthrough by member bargepole for starters, plus the thread by LOC123 as well , plus guidance on the MCOL website too, where you could download a DQ form and read it

I only make common sense comments about any defence, not legal comments as such


so incorrect parking company , incorrect statements , spelling errors , telling people to add what others have said like abuse of process, previous court cases like BEAVIS etc

so where it says "IT IS ORDERED" there should be something before it like

The judge stated "IT IS ORDERED" or similar

KeithP

Later in the process, at Directions Questionnaire time, the Defendant is asked to give all dates in the next six months when they are not available to attend a hearing.

Coupon-mad

Sounds like you need to read bargepole's Court Procedures post, linked
in the NEWBIES thread under the red heading, as that will show you what to do when and what to expect.

isthisajoke

Coupon-mad wrote: »

Sounds like you need to read bargepole's Court Procedures post, linked
in the NEWBIES thread under the red heading, as that will show you what to do when and what to expect.

I did read it but thought it only applied to holidays, Thank you!

isthisajoke

Redx wrote: »

so where it says "IT IS ORDERED" there should be something before it like

The judge stated "IT IS ORDERED" or similar

Thank you, will add this