2 MCOL in the space of weeks @Coupon-mad could you help please?

happysue

Coupon-mad wrote: »

Too many ''ofs''!


And add in a section saying that VCS had to comply with the POFA if they wanted to hold a rk liable and had not identified the driver, and they did not do so in 2015.

That wording is found in other defences to copy from and I seem to recall the residential defence example by solicitor poster, JOHNERSH (as linked in the NEWBIES thread in the defence examples) has the POFA point written to a tee.

Thank you, that was a great example

happysue

IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No: *****

BETWEEN:

Vehicle Control Services LIMITED (Claimant)

-and-

***** (Defendant)

________________________________________
DEFENCE
________________________________________



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

2. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. It is admitted that on [date] the Defendant's vehicle was parked at [location].However no contract was breached.

3.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection Of Freedoms Act 2012 ("POFA")
3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
3.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
3.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

3.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

4. No contract with driver.If a contract is to be formed, upon entering the site a driver must be able to see, read, understand and agree to the terms and conditions.
On the (DATE) at the site where the defendants car was park at (LOCATION), there were no visual signs clearly displayed at the entrance or in prominent locations.
Which is a breach of the International Parking Community (IPC) Code of Practice (COP). who state “Signs should, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such as to be obvious to the motorist”.
The Claimant is put to strict proof that terms and conditions upon entering private land was clearly displayed.

5.In any case, as Vehicle Control Service (VCS) are only an agent working for the owner, mere signs do not help them to form a contract. VCS -v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model. In this instance, there was no contract formed whatsoever.
5.1 At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.
5.2.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, and to pursue payment by means of litigation. The Claimant is not the owner of this land and as such they cannot form a contract with the driver. The defendant presumes that there is no contract with the landowner that gives the Claimant the legal standing to levy these charges nor pursue them in the courts in their own name as creditor.

6. The POFA, 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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.



7. The Defendant believes the Claimant’s behaviour to be predatory, which is a breach of the International Parking Community (IPC) Code of Practice (COP) (14.1) relating to “predatory tactics” by not allowing any grace period.


7.1. According to the PCN left on the defendant's vehicle, the vehicle was ‘seen at 18.02’ and the PCN was issued at 18.04’. This giving the driver of the vehicle No Grace Period which is a breach of IPC COP, to whom Vehicle Control Services are members of.

7.2IPC state in their COP
(15) Grace Periods
(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.


8.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.

Name

Signature

Date

happysue

The Defence has been edited again. Hopefully this now is ready to submit?

Redx

add in abuse of process to object to the added spurious fees such as the extra £60 they added on


the correct charges would be say £100 default tariff plus court fees etc

Coupon-mad

#4 has a typo and I wouldn't call it the defendant's car in case that is taken to be an admission of driving

at the site where the [STRIKE]defendants[/STRIKE] car was parked at

And where you say

However no contract was breached

I think that's too stark a sentence from someone who is not saying who was driving, as again it implies you have knowledge of the event. I'd say:

However, the Defendant has the honest belief that no contract was breached because no contract was capable of being seen due to the lack of adequate notice of the supposed parking charge.

Could you add why? Was it pitch black at night and the signs were unlit?

happysue

Coupon-mad wrote: »

#4 has a typo and I wouldn't call it the defendant's car in case that is taken to be an admission of driving


And where you say
I think that's too stark a sentence from someone who is not saying who was driving, as again it implies you have knowledge of the event. I'd say:


Could you add why? Was it pitch black at night and the signs were unlit?

The defendant knows the area well where the car was parked, and can confirm that no signs where at the site of where the vehicle was parked. The defendant has screens shots from google maps from a couple months prior to the PCN being given. The claimant will be challenged to prove that ANY signs were at that site.

happysue

IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No: *****

BETWEEN:

Vehicle Control Services LIMITED (Claimant)

-and-

***** (Defendant)

________________________________________
DEFENCE
________________________________________



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

2. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. It is admitted that on [date] the vehicle was parked at [location].However, the Defendant has the honest belief that no contract was breached because no contract was capable of being seen as no signs were at the (location) on (date).


3.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection Of Freedoms Act 2012 ("POFA")
3.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
3.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
3.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

3.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

4. The claimant believes that there was no contract with the driver of the vehicle.
If a contract is to be formed, upon entering the site a driver must be able to see, read, understand and agree to the terms and conditions.
On the (DATE) at the site where the defendants car was park at (LOCATION), there were no signs. No signs were clearly displayed at the entrance or in prominent locations.
Which is a breach of the International Parking Community (IPC) Code of Practice (COP). who state “Signs should, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such as to be obvious to the motorist”.
The Claimant is put to strict proof that terms and conditions upon entering private land was clearly displayed.

5.In any case, as Vehicle Control Service (VCS) are only an agent working for the owner, mere signs do not help them to form a contract. VCS -v-HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model. In this instance, there was no contract formed whatsoever.
5.1 At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.
5.2.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, and to pursue payment by means of litigation. The Claimant is not the owner of this land and as such they cannot form a contract with the driver. The defendant presumes that there is no contract with the landowner that gives the Claimant the legal standing to levy these charges nor pursue them in the courts in their own name as creditor.



7. The Defendant believes the Claimant’s behaviour to be predatory, which is a breach of the International Parking Community (IPC) Code of Practice (COP) (14.1) relating to “predatory tactics” by not allowing any grace period.


6.1. According to the PCN left on the defendant's vehicle, the vehicle was ‘seen at 18.02’ and the PCN was issued at 18.04’. This giving the driver of the vehicle No Grace Period which is a breach of IPC COP, to whom Vehicle Control Services are members of.

6.2IPC state in their COP
(15) Grace Periods
(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.


7. The Costs on the claim is disproportionate, disingenuous, and an ABUSE OF PROCESS.

7.1 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.

7.2The 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.

7.3Any 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.

7.4According 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.

7.5The POFA 2012, Schedule 4 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).
It is submitted the Claimant has failed as the Claimant is well aware their artificially inflated claim, which includes an additional £60 constitutes double recovery. For which no calculation or explanation is given.

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. 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.

9.1There 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.

I believe the facts contained in this defence are true.











Name

Signature

Date

happysue

Edited again thanks

happysue

Coupon-mad wrote: »

#4 has a typo and I wouldn't call it the defendant's car in case that is taken to be an admission of driving


And where you say
I think that's too stark a sentence from someone who is not saying who was driving, as again it implies you have knowledge of the event. I'd say:


Could you add why? Was it pitch black at night and the signs were unlit?

Redx wrote: »

add in abuse of process to object to the added spurious fees such as the extra £60 they added on


the correct charges would be say £100 default tariff plus court fees etc

This is a great point thank you!

Coupon-mad

To anyone reading this, all feedback is welcome and appreciated (English is not my native language sorry for any mistakes)

Looks very good, better than many for whom English is their first language, honestly.