County Court Defence Help Please

Coupon-mad

dollydoodar wrote: »

this is the best defence i could come up with, i do not feel comfortable about slagging off cel for wasting everyone's time. do you think that will that go down well?


Defence:
IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:
xxxxxxxxxx (Claimant)

-and-

xxxxxxxxxxxx (Defendant).

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

2. The Defendant was the registered keeper of the vehicle xxxx xxx in question at the time of the alleged incident.!

3.The Claim Form issued on the xxxxxxxx by xxxxxxx was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.!

4. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at xxxxxxxxxxxxxxxxxxxxxxxx.!

4.1. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.!

5. Further and in the alternative, it is denied that the terms on the Claimant's signage are also 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 is capable of creating a legally binding contract.!

6. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). 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.!


No standing or landowner authority!

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 under defined parameters and to form/offer contracts in their own name, and to pursue payment by means of litigation.!


No legitimate interest or commercial justification!

8. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing defendant for a hundredfold penalty, for the ordinary and reasonable conduct explained in this defence.!

8.1. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.!


Unconscionable sum claimed - double recovery - abuse of process!

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.!

9.1 In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector fees and interest, which the Defendant submits have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than two times this sum. The Defendant avers that this inflation of the considered amount is a gross abuse of process.!

10. The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. According to Ladak v DRC LocumsUKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs.!

10.1. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.!

11. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.!

12. It is an unfair burden and a complete waste of time for the Defendant to spend hours on their defence against a vexatious litigant who then discontinues. Research shows that this Claimant is regularly observed as being in pursuit of default judgments to use as an aggressive form of debt collection, with no intention of paying for or attending the majority of hearings.!

13. 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 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.!

this is a good start but you say here:

8. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing defendant for a hundredfold penalty, for the ordinary and reasonable conduct explained in this defence.

which is fine...but nowhere have I seen in this defence, an explanation of the conduct - i.e. what the driver did and what happened and why they are not liable.

You need to state facts early on or the Judge has no clue what this is even about.

dollydoodar

is the abuse of process in the defence i posted wrong? am i to remove paragraph 9 and insert beamerguys?

Coupon-mad

No need, your version is an older one but fine IMHO.

dollydoodar

i want it to be the best it can be

dollydoodar

i desperately need someone to help me. my defence has to be in by monday but as hard as i try to read up on things, none of it will stay in my head. i have such a lot going on right now, stuff i cannot write about it on here but it's way bigger than this and it's very scary and i just don't have the brain capacity to deal with both things at once. can someone help me please?

Le_Kirk

What C-m posted about your defence is exactly right, anyone reading it does not have a clue about the "alleged incident" (your words). You have a chance in your points 2, 4 & 5 to say what it is about. Put it in simple terms such as "the defendant parked in ......" "the defendant purchased a ticket...." " the defendant has a permit..." Only you know the reason why you received a PCN (even if it is unfounded). Resist the temptation to tell the whole story as in "I did this, I did the other...." because that will come later in the process in the Witness Statement (WS).

As C-m says, to keep it simple, you could run with the abuse of process points you have used OR, if you have time, you could add in the more complete one from beamerguy with C-m's additions OR you could just use the headline that some claimants attempting to abuse the process by adding spurious charges have had the claims struck out as an abuse of process and then expand upon it in the WS, indeed this approach is favoured by Johnersh (a lawyerly-type).

dollydoodar

Thank you so much to you Le_Kirk for making it seem a whole heap easier.

I am hoping that this attempt is sounding better???




1. The Defendant denies that the Claimant is entitled to relief in the sum claimed.

2. The Defendant was the registered keeper of the vehicle xxxx xxx in question at the time of the alleged incident. The Defendant was not the driver of said vehicle. The vehicle entered xxxxxxxxxxx car park and parked in a disabled bay. The driver was unaware that Civil Enforcement Limited had recently taken over management of the car park and when doing so had decided to start charging disabled patrons. Previously, disabled patrons were able to park for free.

3. The Particulars of Claim state that the Defendant was the registered keeper and 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.

4.The Claim Form issued on the xxxxxxxx by xxxxxxx was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

5. It is believed that it will be a matter of common ground that the claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at xxxxxxxxxxxxxxxxxxxxxxxx.

5.1. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

6. Further and in the alternative, it is denied that the terms on the Claimant's signage are also 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 is capable of creating a legally binding contract.





No standing or landowner authority!

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 under defined parameters and to form/offer contracts in their own name, and to pursue payment by means of litigation.

No legitimate interest or commercial justification!

8. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing defendant for a hundredfold penalty, for the ordinary and reasonable conduct explained in this defence.!

8.1. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.


9. IT IS ORDERED THAT The claim is struck out as an!“abuse!of!process”.

9.1. 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 not with reference to the judgement in parking eye 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 "

9.2. In summary, it is the Defendant's position that the Claimant has not complied with the PAP, the Claimant is claiming additional sums which it is not entitled to recover, the claim discloses no cause!of!action, is without merit, and has no real prospect!of!success. The Claimant is a serial litigator and it is the opinion!of!the Defendant that they must be aware!of!these multiple breaches!of!and / or failures to comply with all legal requirements in pursuance!of!this matter. Accordingly, the Court is invited to strike out the claim!of!its own initiative, using its case management powers pursuant to CPR 3.4.



10. The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. According to Ladak v DRC LocumsUKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs.

10.1. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.

11. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.

12. It is an unfair burden and a complete waste of time for the Defendant to spend hours on their defence against a vexatious litigant who then discontinues. Research shows that this Claimant is regularly observed as being in pursuit of default judgments to use as an aggressive form of debt collection, with no intention of paying for or attending the majority of hearings.

13. 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 invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.




I confirm that the above facts and statements are true to the best of my knowledge and recollection.


Name!

Signature!

Date:

Le_Kirk

Your point 9 is wrong, maybe you misinterpreted what I meant by headline, you cannot issue an order to the court, you have to show that you are QUOTING a previous case so you should put something like: -

9. Previous cases (IOW & Southampton) have been struck out as an abuse of process where the claimant has tried to claim fake costs .....

dollydoodar

any better?


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed.

2. The Defendant was the registered keeper of the vehicle xxxx xxx in question at the time of the alleged incident. The Defendant was not the driver of said vehicle. The vehicle entered xxxxxxxxxxx car park and parked in a disabled bay. The driver was unaware that Civil Enforcement Limited had recently taken over management of the car park and when doing so had decided to start charging disabled patrons. Previously, disabled patrons were able to park for free.

3. The Particulars of Claim state that the Defendant was the registered keeper and 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.

4.The Claim Form issued on the xxxxxxxx by xxxxxxx was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

5. It is believed that it will be a matter of common ground that the claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at xxxxxxxxxxxxxxxxxxxxxxxx.

5.1. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

6. Further and in the alternative, it is denied that the terms on the Claimant's signage are also 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 is capable of creating a legally binding contract.





No standing or landowner authority!

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 under defined parameters and to form/offer contracts in their own name, and to pursue payment by means of litigation.

No legitimate interest or commercial justification!

8. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing defendant for a hundredfold penalty, for the ordinary and reasonable conduct explained in this defence.!

8.1. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.


Costs on the claim - disproportionate and disingenuous

9. 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.

9.1. 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.

9.2. 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.

9.3. It is trite law that non-existent and untrue 'legal costs' are also unrecoverable. 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.!

9.4. 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.!

9.5. 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.

9.6. Court Court Judges have disallowed all added parking firm 'costs' in County courts, such as these cases, struck out in recent months without a hearing, due solely to the pretence of adding 'damages' blatantly made up out of thin air.

(a) In Claim number F0DP163T on 11th July 2019, District Judge Grand sitting at the County Court at Southampton, struck out a overly inflated (over the £100 maximum Trade Body and POFA 2012 ceiling) parking firm claim without a hearing for that reason.

(b) In Claim number F0DP201T on 10th June 2019, District Judge Taylor 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. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstone’s' robo-claim model) where the abuse is inherent in the business model. The Order was identical in striking out all such claims without a hearing. The judgment for these three example cases 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...''

9.7. 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.

9.8.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.!

9.9. 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.!



10. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.

11. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.

12. It is an unfair burden and a complete waste of time for the Defendant to spend hours on their defence against a vexatious litigant who then discontinues. Research shows that this Claimant is regularly observed as being in pursuit of default judgments to use as an aggressive form of debt collection, with no intention of paying for or attending the majority of hearings.

13. 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 invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.




I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Le_Kirk

That should do it, although you do seem to have a lot of spare ! (exclamation marks) scattered throughout.