Claimant asking for more than double , and has not made clear how a breach of terms has happened!!

Redx

Address the POC in the mcol for the defence

What happened on the day may be included as part of the WS , or not

Don't muddy the waters with side issues, stick to rebutting their actual claim

nosferatu1001

Rebut the actual claim, not what you think the claim is about.

Le_Kirk

Info from a SAR is usually more helpful at Witness Statement (WS) stage. As advised above, compile a defence (for help see NEWBIE sticky post #2 where you will find 17 pre-written defence examples) that refutes what the POC state. Post it here for help and critique. If the claim includes the spurious £60 additional costs, search the forum for Abuse of Process thread by beamerguy (with comment at post # 14 on that thread by Coupon-mad) and add that in to the defence. Also you could search the forum for successful defences against the same PPC or with the same scenario.

happysue

Redx wrote: »

Address the POC in the mcol for the defence

What happened on the day may be included as part of the WS , or not

Don't muddy the waters with side issues, stick to rebutting their actual claim

Thank you for replying

happysue

Le_Kirk wrote: »

Info from a SAR is usually more helpful at Witness Statement (WS) stage. As advised above, compile a defence (for help see NEWBIE sticky post #2 where you will find 17 pre-written defence examples) that refutes what the POC state. Post it here for help and critique. If the claim includes the spurious £60 additional costs, search the forum for Abuse of Process thread by beamerguy (with comment at post # 14 on that thread by Coupon-mad) and add that in to the defence. Also you could search the forum for successful defences against the same PPC or with the same scenario.

Thank you really appreciate it

beamerguy

Abuse of Process ... District Judge tells BWLegal

https://forums.moneysavingexpert.com/discussion/6014081

happysue

beamerguy wrote: »

Abuse of Process ... District Judge tells BWLegal

https://forums.moneysavingexpert.com/discussion/6014081

Thank for this. The defendant used this in their last case, which is still ongoing.

happysue

Here is the defence. Thanks

IN THE COUNTY COURT BUSINESS CENTRE



BETWEEN:

HORIZON PARKING LIMITED

-and-

INSERT NAME

________________________________________
DEFENCE
________________________________________




Preliminary Matters.

(1). The claimant failed to include a copy of their written contract as per Practice Direction
16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the
Claimants contractual authority to operate there as required by the Claimants Trade
Association's Code of Practice B1.1 which says
1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges. There is no prescribed form for such agreement and it need not
necessarily be as part of a contract but it must include the express ability for an
operator to recover parking charges on the landowner’s behalf or provide sufficient
right to occupy the land in question so that charges can be recovered by the operator
directly. This applies whether or not you intend to use the keeper liability provisions.

(2). The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as
there is nothing which specifies how the terms were breached. Indeed the particulars
of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are
known to be serial issuers of generic claims similar to this one. HM Courts Service
have identified over 1000 similar sparse claims. I believe the term for such behaviour
is roboclaims and as such is against the public interest.


Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

1.4 The following are examples of cases where the court may conclude that particulars of
claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
1. those which set out no facts indicating what the claim is about, for example ‘Money
owed £1000’,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not
disclose any legally recognisable claim against the defendant

(3). The Claimant has not complied with the pre-court protocol.

1. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the
Pre-action Conduct process, especially bearing in mind that the Claim was issued by
their own Solicitors so they clearly had legal advice before issuing proceedings.

On the basis of the above, I request the court strike out the claim for want of a
cause of action.

Statement of Defence

I am XXXXX, defendant in this matter. It is admitted that the Defendant was the
authorised registered keeper of the vehicle in question at the time of the alleged
incident.
The Defendant denies liability for the entirety of the claim for the following reasons.

(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")
1. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and 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.

(2) 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.

(3) The claimant has not provided enough details in the particulars of claim to file a full
defence. In particular, the full details of the contract which it is alleged was broken
have not been provided.
1. The Claimant has disclosed no cause of action to give rise to any debt.
2. The Claimant has stated that a parking charge was incurred.
3. The Claimant has given no indication of the nature of the alleged charge in the
Particulars of Claim.
The Claimant has therefore disclosed no cause of action.
4. The Particulars of Claim contains no details and fails to establish a cause of action
which would enable the Defendant to prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis
the claim is brought.
There is no information regarding why the charge arose, what the original charge
was, what the alleged contract was nor anything which could be considered a fair
exchange of information.
The Particulars of Claim are incompetent in disclosing no cause of action.
5. On the 20th September 2016 another relevant poorly pleaded private parking
charge claim by Gladstones was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being
incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’
f) On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very
similar parking charge particulars of claim were efficient and failing to meet CPR 16.4
and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new
particulars which they failed to do and so the court confirmed that the claim be
struck out.


(4) The Claimant has not complied with the pre-court protocol.
1. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out
that there can be no reasonable excuse for the Claimant's failure to follow the Pre-
action Conduct process, especially bearing in mind that the Claim was issued by their
own Solicitors so they clearly had legal advice before issuing proceedings.

(5) The defendant wrote to the claimant on xxxxx asking for:
a) Full particulars of the parking charges
b) Who the party was that contracted with HORIZON PARKING LIMITED .
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that HORIZON PARKING LIMITED had their authority.
e) If the charges were based on damages for breach of contract and if so to provide
justification of this sum
f) If the charge was based on a contractually agreed sum for the provision of parking
and If so to provide a valid VAT invoice for this 'service'.
g) To provide a copy of the signs that HORIZON PARKING LIMITED can evidence were on site and which contended formed a contract with the driver on that occasion, as well as all photographs taken of the vehicle in question.

The claimant has not responded.


(6) Withholding any relevant photos of the car, particularly the windscreen and
dashboard, and the signage terms, despite being asked for by the Defendant at the
outset, is against the SRA code as well as contrary to the ‘overriding objective’ in the
pre action protocol.
As Gladstones are a firm of solicitors whose Directors also run the IPC Trade Body
and deal with private parking issues every single day of the week there can be no
excuse for these omissions.

The Defendant asks that the court orders Further and Better Particulars of Claim and
asks leave to amend the Defence.


(7). HORIZON PARKING LIMITED are not 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 rights to bring action regarding this claim.
1. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
2. The claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
3. The Claimant is put to proof that it has sufficient interest in the land or that there are
specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge



(8). The Costs on the claim is disproportionate, disingenuous, and an ABUSE OF PROCESS.

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.

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.

3. 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.

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.

5. The 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.

(9) 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...''

(10) The signage was inadequate to form a contract with the motorist
1. The signage on this site is inadequate to form a contract. Sections are barely legible, making it
difficult to read.
2. The sign fails because it must state what the ANPR data will be used for. This is an
ICO breach and contrary to the Code of Practice.
3. In the absence of ‘adequate notice’ of the terms and the charge (which must be in
large prominent letters such as the brief, clear and multiple signs in the Beavis case)
this fails to meet the requirements of Schedule 4 of the POFA.

(11) The driver did not enter into any 'agreement on the charge', no consideration flowed
between the parties and no contract was established.
The Defendant denies that the driver would have agreed to pay the original demand
of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.


(12) 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.

1.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.

I believe the facts contained in this defence are true.




Name

Signature

Date

KeithP

What is the Issue Date on your County Court Claim Form?

happysue

KeithP wrote: »

What is the Issue Date on your County Court Claim Form?

August 7th