VCS MCOL Claim received - defence drafted

cathodegirl

Hello everyone
I wondered if you'd be kind enough to comment on my defence please.
Ive read the newbies threads.
Date of "offence" February 2016
MCOL Claim Form dated 1 July 2019
Acknowledgment of Service submitted 5 July 2019
Subject Access Request filed 4 July 2019

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What happened - settling into new city, bit lost, found some spaces, winter evening, dark and open to road, didn't see signage. Looking after event I see some signage but it is tiny and is at 45 degrees facing street (which is clearly signed).

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Draft as follows:
Section 3 Defence
1. As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.
2. The Claimant has not complied with pre-action protocol, under the Practice Direction as a compliant ‘Letter before County Court Claim’ was not issued. The particulars of claim fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3 – 7.5
I submit that the claimant has failed to comply with these requirements in that the Letter Before Claim dated 20th April 2019 contains no particulars of the claim. It:
• provides no statement of fact beyond the assertion that Terms and Conditions were breached
• alleges that Terms and Conditions were breached but provides no detail of these
• included a series of unexplained and undetailed claims, charges and interest totalling £230.78; this is the payment that was demanded to avoid this current claim

3. The particulars of claim fail to comply with Practice Direction 22, paragraphs 3.1 – 3.10
I submit that the claimant has failed to comply with these requirements in that
(i) The Letter Before Claim dated 24 April 2019 contains no signature. The typed name of J.Burgess/Jake Burgess is included but there is no indication of their role so it is impossible to determine which of the approved capacities s/he is acting in.
(ii) The formal claim form includes the name Simon Renshaw typed on the signature line, followed by “(Claimant)”. No office or role is given, which is relevant to defence point 5, below.

4. The Particulars of Claim fail to disclose the head or heads of action in which these proceedings are based, and has failed to clearly set out all elements that constitute a wrong.

5. It is denied that the Claimant is the lawful occupier of the land. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from 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.

6. I submit that the signs on site at the time of the alleged event were insufficient in terms of their location, content, numbers and number to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.

I submit that signage at the site:
(i) fails to make it clear it clear that the motorist is entering onto private land
(ii) is ambigiously positioned
(iii) contains text of complexity and density such that the most onerous terms are not clear
(iv) do not fall under any of the classes in Schedule 1 or Schedule 3 of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 or that the Claimant has advertisement consent for the signs. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant. In the absence of any signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

8. Finally, I submit that the claimant is a serial abuser of the court process in this manner, producing large volumes of mailmerged generic claims that are issued as ‘fishing expeditions’ and frequently failing to follow claims through, provide evidence or attend court hearings. This is an abuse of court time and that of many members of the public.

9. Given the submissions made in points 1 to 8 herein, I respectfully ask that the court
strike out the claim as having no reasonable prospect of success as currently drafted.

10. If the Court considers that this case should be heard, I ask that the Claimant be:
(i) put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
(ii) put to strict proof that at the time of the alleged event they were in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner.
(ii) put to strict proof that each of the assertions made is true
(iii) required to file particulars which comply with practice directions and include at least the following information:
a. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
b. A copy of any contract it is alleged was in place, as it was on the date of the alleged event (eg copies of signage)
c. How any contract was concluded (if by performance, then copies of signage maps, copies directions to payment machines, copies of location of ANPR in relation to signage and payment machines, as it was on the date of the alleged event)
d. Whether the Claimant is acting as agent or principal, together with a list of documents they will rely on in this matter
e. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
(iv) required to disclose:
a. a. how many Claims it has made to members of the public between 27th July 2014 and 26th July 2019
b. how many of these Claims have progressed to Court Hearing
c. how many of these Claims were found in the Claimant’s favour
11. Once these particulars have been filed, the Defendant asks for reasonable time to file a defence

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Many thanks for your input, you're brilliant
Cath

KeithP

cathodegirl wrote: »

MCOL Claim Form dated 1 July 2019
Acknowledgment of Service submitted 5 July 2019

With a Claim Issue Date of 1st 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 over a week away. Loads of time to produce a Defence and it is good to see that you are not leaving it to the very 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.

Egbert_Nobacon

You need to add this to your defence regarding the fake add on costs:-


Costs on the claim - 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.

- 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.

- 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.

- 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.

- 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.

- 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. 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.

- 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:
The Judge stated:-
''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...''

- 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.

- 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.

- 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.

Egbert_Nobacon

The points from 10e onwards seem irrelevant to me but I’m sure others will be along with their suggestions.

The_Deep

Nine times out of ten these tickets are scams so complain to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Le_Kirk

Defences should be written in the third person, hence "I" becomes "the Defendant". I suggest you read the NEWBIE sticky and in particular, post # 2, where you will find 17 pre-written defence examples. Use the one that most closely matches your circumstances and adapt to suit, then add in the bits posted by Egbert Nobacon making sure that all the paragraphs are numbered.

nosferatu1001

Indeed, I fail to see how 10e constitutes a defence.