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Claimant asking for more than double , and has not made clear how a breach of terms has happened!!
Comments
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Your first point in 'preliminary matters' should be referring to the contract between the Claimant and Defendant - which is what Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A) are all about.
The contract between the Claimant and the landowner is something entirely different.0 -
I am going to assume you did the Acknowledgement of Service before 26th August. Please confirm.
With a Claim Issue Date of 7th August, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 9th September 2019 to file your Defence.
That's a little over a week away. Plenty of time to produce a Defence, but please don't leave it to the last minute.
When you are happy with the content, your Defence could 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 the NEWBIES FAQ sticky thread to find out exactly what to do with it.
0 - Sign it and date it.
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Your first point in 'preliminary matters' should be referring to the contract between the Claimant and Defendant - which is what Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A) are all about.
The contract between the Claimant and the landowner is something entirely different.
Should i change number 2 and number 1 around?0 -
How does that help?
Your first point in 'preliminary matters' is fundamentally flawed.
You also need to number all your paragraphs sequentially - not restart at 1) part way through.
Oh ok, I understand. I thought it would be perfect as I got in from the NEWBIE THREAD.
Thanks for the feedback I will look more in to it tomorrow.0 -
I am going to assume you did the Acknowledgement of Service before 26th August. Please confirm.
With a Claim Issue Date of 7th August, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 9th September 2019 to file your Defence.
That's a little over a week away. Plenty of time to produce a Defence, but please don't leave it to the last minute.
When you are happy with the content, your Defence could 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 the NEWBIES FAQ sticky thread to find out exactly what to do with it.
Sorry I did not see this. Yes I submitted it before the 26th0 - Sign it and date it.
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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 (PD) 16
“7.3 Where a claim is based upon a written agreement:(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing”.
1.1 The particulars of claim do not meet the requirements of PD 16.4.
As iIndeed the particulars of claim are not clear and concise as is required by PD;
16.4 1,(a) and (b)
“ Particulars of claim must include – a concise statement of the facts on which the claimant relies; if the claimant is seeking interest, a statement to that effect and the details set out in paragraph”
The signage at the site of ADDRESS GOES HERE, has 7 different reasons of why;
“A Parking Charge Notice of £80 will be issued in the following circumstances
Parked on yellow lines
Non customer parking
Parking in a disabled bay without displaying a valid disabled badge
Parked out of marked bay
Overnight parking
Parking in a parent and child bay without a child under the age of 12”
The defendant has knowledge that the driver of vehicle ****** did not “parked in breach of the terms of parking stipulated on the signage at the ******on. **/**/16”.
1.2 Claimant is put to strict proof that the vehicle ****** “ parked in breach of the terms of parking stipulated on the signage (the ‘contract’) at the ******on. **/**/16”
(2) 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)
2.1 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.
2.2 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 complied with the pre-court protocol.
3.1 I'd refer the court to paragraph 1 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 to 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")
1.1 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.
3.1 The Claimant has disclosed no cause of action to give rise to any debt.
3.2 The Claimant has stated that a parking charge was incurred.
3.3 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.
3.4 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 “breach of the terms of parking stipulated on the signage (the ‘contract’)” which does not give any indication of on what basis the claim is brought.
As mentioned in paragraph 1, there are 7 different reasons why a vehicle could be in “breach of the terms of parking stipulated on the signage (the ‘contract’)”.
The Particulars of Claim are incompetent in disclosing no cause of action.
(4) 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.’
4.1 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.
(5) The defendant wrote to the claimant on xxxxx asking for:
5.1 Full particulars of the parking charges
5.2 Who the party was that contracted with HORIZON PARKING LIMITED .
5.3The full legal identity of the landowner
5.4 A full copy of the contract with the landholder that demonstrated that HORIZON PARKING LIMITED had their authority.
5.5 If the charges were based on damages for breach of contract and if so to provide
justification of this sum
5.6 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'.
5.7 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.
6.1 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.
6.2 The Defendant asks that if the court does not strike out the case, 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.
7.1 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.
7.2 The claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
7.3 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.
8.1 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.
8.2 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.
8.3 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.
8.4 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.
8.5 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:
The judges 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...''
(10) The signage was inadequate to form a contract with the motorist
10.1 The signage on this site is inadequate to form a contract. Sections are barely legible, making it
difficult to read.
10.2 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.
10.3 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.
12.1There 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
Date0 -
Hey this is my edited version, is anyone free for feedback please?0
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Coupon-mad wrote: »Yes we know, but I have no idea why people keep focussing on that perfectly normal statement which is a feature of ALL POC from PPC scammers and means nothing important.
https://forums.moneysavingexpert.com/discussion/comment/75829798#Comment_75829798
The PPC's case is that the driver agreed to pay by performance - the action of parking. This is normal stuff, covered by the Beavis case. They are not saying he/she phoned them up and agreed. We discuss this same thing every week, pointlessly!
Hey if you have any time today could you check the defendants defance please? Thanks0 -
That is a very long defence. Did you look at some of the 17 pre-written defences in the NEWBIE sticky, particularly those posted by Bargepole who recommends concise is the way to go.
Having said that you have some typo's in your preliminary matters (not sure why you need that) for example "did not parked in breach......." ALL paragraphs require a number and simple numbering is preferred.
Defences are written in the third person, you have slipped in a couple such as "3.1 I'd refer the court ........."
You don't need "Statement of Defence" half-way through your defence. You seem to have repetition in the second half of the defence.
A lot of what you say might be better held back for the Witness Statement (WS) and evidence stage, for example your extracts from POFA.
Glad to see you've included the "Abuse of Process" point.0
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