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Help Please Defence to be submitted soon
FredUp
Posts: 33 Forumite
Hi, I'm forming my defence based on reading a lot of the info on here and would like a bit of a sense check / advice if it's not detailed enough / too detailed etc.
The facts are I was the RK of a vehicle which parked on land which had no signage at the entrance or obvious at the time to say it was Pay & Display and got a red Notice on the windscreen from VCS. I didn't respond to anything until the LBA arrived - asked for more info and within the 30 days, but received nothing at all until County Court Claim papers arrived in the post.
The photos that VCS show on the myparkingcharge website confirm my assertion that the signage is insufficient and the close up of the T's & C's taken with flash confirm that they are barely legible.
This is what I've managed so far and any help would be gratefully appreciated.
IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN:
xxxxxxxxx (Claimant)
-and-
xxxxxxxxxxxx (Defendant)
Preliminary:
1. The Claimant has not complied with Pre-Action Protocol (PAP) for Debt Claims, 1 October 2017 in respect of Sections 2. (2.1) (a),(b),(c).
Specifically in that:
The Claimant’s Letter Before Claim (LBC) Ref: *********** dated *********refers to an alleged breach……...“of the Terms and Conditions relating to the use of private land, details of which are set out below”.
And that:
The LBC did not as stated provide a copy of the Terms and Conditions which are alleged to have been breached. The wording of any contract is obviously fundamental to the Defendant’s ability to understand the Claim and indeed to Defend the Court action which has been prematurely initiated. A copy of the allegedly breached contract has not been provided to the Defendant to date.
2. The Claimant has not complied with Pre-Action Protocol (PAP) for Debt Claims, 1 October 2017 in respect of Sections 3. (3.4) and 5. (5.2) and Annex 1 ref: What happens if I fill in and return the Reply Form in time?
Specifically in that:
The Defendant responded to the LBC in compliance with the PAP by using the Reply Forms on ******* 2019 (before Claimant’s deadline for commencing legal action ****** and within the 30 day timeline for Response and request for further information) requiring the Claimant to provide further information and details relevant to this matter.
And that:
The Claimant has not complied with the request for further information and has instead commenced Court Proceedings in breach of the requirements to provide such information within 30 days, and not to start Court Proceedings until at least 30 days after providing such information.
3. Upon receipt of the County Court Claim forms the Defendant again contacted the Claimant by email of ????? requesting all information relevant to the claim.
The Claimant has not responded to date.
Considering all of the above, it is clear that the Claimant has not complied with the PAP and has in fact disregarded the purposes of the PAP entirely. Due to, the premature commencement of Court action and the failure of the Claimant to provide a copy of the contract which it alleges has been breached and other information requested by the Defendant using the LBA reply forms and within the allowed timeframe for response to the LBA the Defendant is placed at a huge disadvantage in Defendant is at a huge disadvantage in forming this Defence.
The Claimant has disregarded the purpose of the PAP in its entirety, and the Defendant respectfully requests that amendments be allowed to the defence if necessary once the full facts of the matter are disclosed by the Claimant.
THE DEFENCE:
I believe the facts contained in this Defence are true.
Name:
Signature:
Date:
The facts are I was the RK of a vehicle which parked on land which had no signage at the entrance or obvious at the time to say it was Pay & Display and got a red Notice on the windscreen from VCS. I didn't respond to anything until the LBA arrived - asked for more info and within the 30 days, but received nothing at all until County Court Claim papers arrived in the post.
The photos that VCS show on the myparkingcharge website confirm my assertion that the signage is insufficient and the close up of the T's & C's taken with flash confirm that they are barely legible.
This is what I've managed so far and any help would be gratefully appreciated.
IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN:
xxxxxxxxx (Claimant)
-and-
xxxxxxxxxxxx (Defendant)
Preliminary:
1. The Claimant has not complied with Pre-Action Protocol (PAP) for Debt Claims, 1 October 2017 in respect of Sections 2. (2.1) (a),(b),(c).
Specifically in that:
The Claimant’s Letter Before Claim (LBC) Ref: *********** dated *********refers to an alleged breach……...“of the Terms and Conditions relating to the use of private land, details of which are set out below”.
And that:
The LBC did not as stated provide a copy of the Terms and Conditions which are alleged to have been breached. The wording of any contract is obviously fundamental to the Defendant’s ability to understand the Claim and indeed to Defend the Court action which has been prematurely initiated. A copy of the allegedly breached contract has not been provided to the Defendant to date.
2. The Claimant has not complied with Pre-Action Protocol (PAP) for Debt Claims, 1 October 2017 in respect of Sections 3. (3.4) and 5. (5.2) and Annex 1 ref: What happens if I fill in and return the Reply Form in time?
Specifically in that:
The Defendant responded to the LBC in compliance with the PAP by using the Reply Forms on ******* 2019 (before Claimant’s deadline for commencing legal action ****** and within the 30 day timeline for Response and request for further information) requiring the Claimant to provide further information and details relevant to this matter.
And that:
The Claimant has not complied with the request for further information and has instead commenced Court Proceedings in breach of the requirements to provide such information within 30 days, and not to start Court Proceedings until at least 30 days after providing such information.
3. Upon receipt of the County Court Claim forms the Defendant again contacted the Claimant by email of ????? requesting all information relevant to the claim.
The Claimant has not responded to date.
Considering all of the above, it is clear that the Claimant has not complied with the PAP and has in fact disregarded the purposes of the PAP entirely. Due to, the premature commencement of Court action and the failure of the Claimant to provide a copy of the contract which it alleges has been breached and other information requested by the Defendant using the LBA reply forms and within the allowed timeframe for response to the LBA the Defendant is placed at a huge disadvantage in Defendant is at a huge disadvantage in forming this Defence.
The Claimant has disregarded the purpose of the PAP in its entirety, and the Defendant respectfully requests that amendments be allowed to the defence if necessary once the full facts of the matter are disclosed by the Claimant.
THE DEFENCE:
- The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
- The facts are that the vehicle, registration XXXX, of which the Defendant was the registered keeper, was parked at the material date and time in the ********* Car Park as claimed but was not aware that any fee was payable or that this was a Pay and Display Car Park.
- The Particulars of Claim state that the Defendant ******* was the registered keeper and / or the driver of the vehicle *******. This assertion indicates 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.
- It is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
- It is disputed that the signage is as stated in the Particulars of Claim specifically in that there are no signs clearly displaying Terms and Conditions for entering private land at the site entrance, nor are there clear signs at prominent locations. Photographic evidence provided by the Claimant by way of their own Parking Charge Notice which the driver was made aware by the affixed Notice to Person in Charge of the vehicle conclusively shows the signs to be neither prominent in that the sign itself is not obvious to a driver leaving the vehicle and walking to the exit. Nor are they clear, the photograph of the sign showing the Terms and Conditions is unreadable without the aid of artificial lighting, of which none is provided, the signs are complex and wordy, with the terms regarding Parking Charges for breach of conditions being in a subsection in a very small font of blue text on yellow background and does not refer to the amount of any Parking Charge, the amount of the Parking Charge is in a further subsection in an even smaller font of white text on blue background.
- The Defendant avers that the signage is in breach of the Claimant’s own Trade Association’s Code of Conduct Part E Schedule 1, that the lack of clear and prominent signage differentiates this case from the Parking Eye vs Beavis case upon which the Claimant may rely, and that the signage fails the test of Lord Denning’s “Red Hand Rule”.
- It is denied that the Terms and Conditions signage across the entire site is clear, prominent, nor capable of creating a legally binding contract. The Defendant avers that any reasonable person would pay the £1 parking fee due at the material time rather than save £1 and risk a £100 parking charge if these Terms and Conditions were made obvious to them by means of clear and prominent signs. The Claimant is put to strict proof that the signage as stated in the Particulars of Claim was in place at the material time and that such signage was capable of forming a contract.
- 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, and to provide details of any Terms and Conditions placed upon the Claimant by the landowner in relation to such authorisations.
- 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. The Claim includes an additional £60, for which no calculation or explanation is given, and which must be considered to be an attempt at 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:
'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 Rule3.3(4) of the Civil Procedure Rules 1998...'' - The Parking Charge of £100 with a discount to £60 for early payment is excessive and unconscionable. In the case of Parking Eye vs Beavis the court allowed the charge of £85 as being agreed by the Defendant due to the unusual prominence of the Terms and Conditions signage upon which Mr Beavis noticed and agreed at the material time, and the charge was allowed in that it was broadly in line with Local Authority charges. The charge claimed in this matter is double the local authority charge of £50 and in the case of early payment more than double the local authorities discounted charge of £25.
- 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.
I believe the facts contained in this Defence are true.
Name:
Signature:
Date:
0
Comments
-
Nine times out of ten these tickets are scams so consider complaining 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.You never know how far you can go until you go too far.0 -
You say the driver has never been revealed
You need to edit your post to remove details of who was driving!
The ppcs monitor this forum and can use posts in your thread against you0 -
Do you have a County Court Claim Form?
If so, what is the Issue Date on that form and did it come from the County Court Business Centre in Northampton, or from somewhere else?0 -
Not sure how to edit post already posted?
County Court Claim form came from CCBC Northamptonshire and the issue date is 16th July 20190 -
With a Claim Issue Date of 16th July, you had until Monday 5th August to do the Acknowledgement of Service. I am going to assume that you did the AoS by that date. Please confirm.County Court Claim form came from CCBC Northamptonshire and the issue date is 16th July 2019
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 just a few days away.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.
0 - Sign it and date it.
-
Yes AOS was sent on time and confirmed on MCOL.
Ive spent a good while on the defence so far and was hoping for a bit of a sense check on the Defence.0 -
As posted your defence is contradicted by other information you needlessly also posted.
We know that the ppcs monitor here
You need to edit your post as was advised in #30 -
Ok thanks, I've edited as suggested. How's it look now0
-
Ok thanks, I've edited as suggested. How's it look now0
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