claim form from court and Im scared now

KeithP

NervousReck wrote: »

the issue date on the claim form is 17 july 2019. i have been on the government website and made an account and then found this claim website MCOL and ticked one box saying i will defend it. it then said the acknowledgement of service was on 30 july 2019.

With a Claim Issue Date of 17th July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 19th August 2019 to file your Defence.

That's nearly three weeks away. Loads of time to produce a perfect Defence, and as fatbelly says, 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.

Ralph-y

please do the searchers that C-M has suggested, she knows what she is doing ...






HOW TO USE THE FORUM SEARCH FUNCTION:

Use the Forum Jump button (one near the top and one near the bottom of this page) to get back to the forum thread list. Just above the threads, on the right, is a heading along a line, next to forum tools, called 'Search this Forum'. Put your key word(s) in and change the default search from 'Show Threads' to 'Show Posts'.



do not give up .... you can win with forum help ...


Ralph:cool:

NervousReck

Hi everyone, Ive drafted a defence however I am struggling how to word the fact that the website to be used to input the registration number is password protected and the paid staff working on that day i got the ticket did not have the password to allow me to have a permit for the day. Since then the company have now installed an ipad in the back office.


The defence I have used sounds really professional, however my own personal wording is rubbish, can anyone help me?


Ive spent ages looking at defences and my head is now all over the place.
any help would be greatly appreciated
thank you

Le_Kirk

With your defence, you just need to add "frustration of contract" due to the PPC's equipment malfunctioning. Check out other similar defences by searching the forum using advanced search with frustration of contract as your search words and change the radio button from threads to posts. The full story (that you shared in your post # 1) will be more useful at Witness Statement (WS) stage where you tell the narrative (the story of what happened on the day) in your own words. It would be helpful to obtain statements from anyone working in the shop on that day to support your case.

Quentin

Post your draft up for comments

NervousReck

In the County Court Business Centre
Between:
Civil Enforcement Limited

Claim Number:
The Defendant admits that she is the registered keeper of the vehicle xxx but denies that she is liable for the entirety of the claim for each of the following reasons:

1. The alleged contract was frustrated due the defendant working as a volunteer for the charity shop Barnardos who did not have access to passwords to enable the defendant to put in their registration number into creative parking to allow a days permit, there was also no device installed at the time either which has subsequently been added at a later date.

1.1 The Claim Form issued on the 17th July 2019 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited” (Claimant’s Legal Representative)”.

1.2 The Claimant failed to comply with its pre-action obligations set out in the Practice Direction - Pre-Action Conduct, because it has failed to provide any meaningful explanation as to what the alleged debt refers to or how it arose or any evidence to back up the claim (a breach of paragraphs 3, 6(a) and 6(c) of the Practice Direction). This puts the Defendant at a serious disadvantage because she is unable to file a full and proper defence - for example, a claim in respect of parking can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. In addition, if the claim is brought under contract, the Defendant is entitled to know and understand the terms of the contract relied upon and how it is alleged the driver entered into it (Practice Direction 16, paragraph 7 also provides that these matters must be included in the Particulars of Claim). The Claimant has never explained this nor provided a copy of the alleged contract, leaving the Defendant unaware of its terms or how the driver is alleged to have entered into it.

a) There was no compliant “Letter before County Court Claim”, under the Practice Direction

b) The Claimant is known to be a speculative serial litigant, issuing a large number of identical claims with Particulars of Claim so sparse as to be incoherent (as in this case). The Claimant is in fundamental breach of CPR 16.4 and paragraph 3.6 of Practice Direction 16 in failing to provide adequate particulars of the Claim. If the claim is for a breach of contract, no details have been provided about how the driver is alleged to have entered into a contract, or what its terms were (CPR Rule 16.4 and Practice Direction 16, paragraph 7).

c) The Claim Form Particulars were extremely sparse and divulge no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claimant has never provided the Defendant, either in the Particulars of Claim nor in any Letter Before Claim, any information about how the claim is alleged to have arisen nor any evidence, such as photographs. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. “Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided”.

d) The Defence therefore asks the Court to strike out the claim pursuant to CPR Rule 3.4 by exercising its inherent powers under CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1 as disclosing no cause of action and having no reasonable prospect of success as currently drafted.

e) Alternatively, the Defendant asks that the Court orders a stay of these proceedings until the Claimant has complied properly with its pre-action obligations (pursuant to paragraph 15(b) of the Practice Direction - Pre-Action Conduct) and providing for the Defendant to file an Amended Defence once it has done so

f) Alternatively the Defendant asks the court to order the Claimant to file Particulars which comply with the clear requirements of the CPR and include at least the following information, and providing for the Defendant to file an Amended Defence once it has done so;

i. 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
ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
(iv) Whether the Defendant is being pursued as driver or as keeper and if the latter that it produces copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter and granting it such authority
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed and how the charges have been calculated
vii. If interest charges are being claimed, the basis on which this is being claimed.

3.The Defendant denies that she can be liable as Registered Keeper of the vehicle because the Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable as Registered Keeper under the strict ‘keeper liability’ provisions.

Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information about how to obtain a permit either inside or outside the site) is the sum on the Notice to Keeper.

4.The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. The Defendant denies that the Claimant has incurred such costs and puts it to full proof thereof. The Defendant also denies that the Claimant is entitled to any interest whatsoever.

5. The charges claimed are an unrecoverable penalty. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) in which it was held that the penalty rule was disengaged - that Claim 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. Strict compliance with the BPA Code of Practice (CoP) was held to be paramount and the Defendant was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as the Defendant can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage 'contract', none of this applies in this material case.

6. In the absence of any proof of adequate signage contractually bound the Defendant then there can have been no contract and the Claimant has no case. The Defendant puts the Claimant to full proof thereof

a) The Claimant is 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

b) Without such consent, 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

7.The Claimant has provided no information about what signage was displayed on the land at the relevant time. The Defendant puts the Claimant to full proof thereof and it is his defence that any such signage was inadequate and incapable for forming a contract nor of binding the driver for the following reasons (this again distinguishes this case from the Beavis case):

(i) Sporadic and illegible site/entrance signage (restrictions and any charge not prominent nor in large lettering) - breach of the POFA 2012 Schedule 4 and the BPA compulsory Code of Conduct and no contract formed to pay any clearly stated sum.
(ii) Non-existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) It is believed the signage and any terms were not adequately illuminated and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.
(iv) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
(v) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

d) BPA CoP breaches - this distinguishes this case from the Beavis case:
(i) the signs were not compliant in terms of the font size, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) there is / was no complaint landowner contract.

8. The Claimant has no legal standing to bring this Claim this again distinguishes this case from the Beavis case:
The Defendant does not believe that the Claimant is party to a legitimate contract to operate at this car park as it has provided no such evidence. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

9.Unless it has contractual authority, the Claimant has no right to pursue this claim. Otherwise, it is a simple trespass claim and only a landowner may pursue such a claim. The Defendant denies that the Claimant is the landowner of the relevant land.

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 incorrectly filed Claim Form issued on the 17th July 2019.
• Sent a template, well-known to be generic cut and paste “Particulars” of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

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

NervousReck

please can someone look at the above, its stressing me out, ive already posted it to someone elses post by mistake and managed to delete it. I really didn't think it would be this stressful to deal with.

Le_Kirk

Did you check out the concise defences written by Bargepole and others (or any of the 17 pre-written examples in the NEWBIE sticky post # 2,) in particular this one written by Coupon-mad: -

Another ParkingEye defence, where there was a hidden iPad or keypad inside the Odeon, that no-one drew to the driver's attention:

https://forums.moneysavingexpert.com/discussion/comment/74254129#Comment_74254129"hidden keypad" to "failure of your equipment."

Don't stress yourself, you have until 19th August to submit your defence and others will post their critique once you have put together your draft.

NervousReck

ok ive tried to word my defence correctly and have read through other threads but I am not up to speed with all the terms used by lawyers. Please can I have some advice if this is correct - I was working as a volunteer in the charity shop which is next door to the co op which was initially a free car park but now no longer is.


[FONT=&quot]In the County Court[/FONT]

[FONT=&quot]Claim Number: xxxxxxx[/FONT]

[FONT=&quot]Between

Civil Enforcement Ltd

v

Xyour nameX[/FONT]

[FONT=&quot]DEFENCE[/FONT]

[FONT=&quot]



Background - the driver was an authorised patron of the onsite business

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £196.16 'parking charge notice' (PCN) for the lawful conduct described below.

2. The allegation appears to be that the 'vehicle was not authorised to use the car park' based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is no evidence of 'No Authorisation' or not being a patron of the facility.

3. The Defendant has already proved that patronage, and it is the Claimant's own failure, caused by their deliberately obscure terms and failure of equipment that catches out far too many victims at this location, that has given rise to a PCN that was not properly issued from the outset.


Unclear terms - unconscionable penalty relying upon a failure of equipment

4. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, visitors were expected to know to input their Vehicle Registration Number (VRN) into equipment that had not been provided.

4.1. Prior to the Defendant's visit, Civil Enforcement Ltd had recently placed their signage within the car park creating new terms and conditions for motorists. Their Trade Body Code of Practice states at 18.11: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.''

4.2. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use equipment that had failed to be provided, or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

5. Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner. Unsurprisingly, this was conspicuous by its absence as an option offered by Civil Enforcement Ltd in their signs or paperwork, prior to commencing proceedings. The Manager was incensed that these complaints were becoming a daily occurrence, blighting the business and upsetting customers ever since the ill-advised contract began, yet the business was now stuck with it for the time being.

5.1. The only route offered was a supposed 'appeal' to Civil Enforcement Ltd themselves, but the Defendant knew that no offence or mischief had occurred and honestly believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.

5.2. This fact was later confirmed in all readings of the Private Parking Code of Practice Bill, from February 2018 to date, where MPs universally condemned the entire industry as operating 'an outrageous scam' typically relying upon hidden, punitive terms that purposely rely on drivers not seeing an unexpected obligation. Both the British Parking Association ('BPA') Trade Body and indeed, Civil Enforcement Ltd themselves were specifically named and shamed more than once in Parliament and the Bill was introduced purely because the industry is out of control, self regulation has failed, and in many cases any 'appeal' is futile.


No legitimate interest - the penalty rule remains engaged

6. 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 in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.

7. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When - all too often at this location – Civil Enforcement Ltd unfairly harvest the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

7.1. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.

7.2. This case is fully distinguished in all respects from Civil Enforcement Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.

8. In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to input their VRN into equipment that is not provided, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

9. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

9.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge for failing to do something that the driver never knew was a requirement.


Lack of good faith, fairness or transparency and misleading business practices

10. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons would be supplied with the relevant equipment and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine customer, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way Civil Enforcement Ltd make any money.

11. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that Civil Enforcement Ltd withheld the option of landowner cancellation all along.

11.1. By failing to adequately alert patrons for their failure to provide equipment, and then withholding from the registered keeper any/all information about the 'user agreement' with the landowner which would have enable an immediate route of cancellation, are 'misleading omissions' of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case). As such, this claim must fail.


Inflation of the parking charge and double recovery - an abuse of process

12. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.

13. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £50, which have not actually been incurred by the Claimant. Civil Enforcement Ltd have not expended any such sum in this case, given that they have a Legal Team with salaried in-house Solicitors and (shamefully) this firm whose main business is supposed to be parking 'management' as a service provision, files tens of thousands of similar 'cut & paste' robo-claims per annum. No genuine legal costs arise, per case, and their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

14. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. According to Ladak v DRC Locums UKEAT/0488/13/LA, a Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on actually preparing the claim and/or the cost of obtaining advice for that specific claim, in a legal capacity.

15. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature


Date[/FONT]

Redx

Add the abuse of process paragraphs by coupon mad posted in the thread by beamerguy to the defence