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

happysue

Le_Kirk wrote: »

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.

Yes before the defendants defence was edited it was taking from the NEWBIE THREAD. Then I got told it had faults. Thanks for your feedback.

happysue

IN THE COUNTY COURT BUSINESS CENTRE



BETWEEN:

HORIZON PARKING LIMITED

-and-

INSERT NAME

________________________________________
DEFENCE
________________________________________


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


(1) The claimant has not provided enough details in the particulars of claim for the defendant to file a full defence. In particular, the full details of the contract which it is alleged was broken,
have not been provided.

1.2) 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 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”.

1.3) The particulars of claim do not meet the requirements of PD 16.4.
As indeed 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”.

1.4) 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 stated that “The driver of the vehicle with registration ******* (the ‘vehicle’) parked in breach of the terms of parking stipulated” which does not give any indication of what terms were breach.

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.

2.1) 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’)”

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.


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

3.1) 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.

3.2) 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.

3.3) 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.

3.4) 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.

3.5) 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.

3.5) 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...''

(4) The defendant wrote to the claimant on xxxxx asking for:
1. Full particulars of the parking charges
2. Who the party was that contracted with HORIZON PARKING LIMITED .
3. The full legal identity of the landowner
4. A full copy of the contract with the landholder that demonstrated that HORIZON PARKING LIMITED had their authority.
5. If the charges were based on damages for breach of contract and if so to provide
justification of this sum
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'.
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.
(5) 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.

5.1) 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.

5.2) 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.


(6) 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")

6.1) 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.

6.2) 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.



(7) 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.’

7.1) 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.





(8). 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.

8.1) 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.

8.2) The claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question.

8.3) 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




(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.

9.1) 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.









9.2) The Claimant has not complied with the pre-court protocol.
The Defendant refers the court to paragraph 1, 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, the Defendant requests the court to strike out the claim for want of a
cause of action.

I believe the facts contained in this defence are true.




Name

Signature

Date

happysue

PLEASE could someone give feedback on this defence. The Defendant wants to sumbit it before 4pm 10/09/2019

KeithP

happysue wrote: »

The Defendant wants to sumbit it before 4pm 10/09/2019

In post #33 above I wrote:

...you have until 4pm on Monday 9th September 2019 to file your Defence.

It is now 10th September. You have now passed that deadline.

Since 4pm yesterday the Claimant has been free to seek a Default Judgment against you.

Your Defence must now be filed with the greatest haste.

happysue

KeithP wrote: »

In post #33 above I wrote:

It is now 10th September. You have now passed that deadline.

Since 4pm yesterday the Claimant has been free to seek a Default Judgment against you.

Your Defence must now be filed with the greatest haste.

Good Morning the defendant made a mistake, and it is in fact today sorry. Could someone please give some feedback before the defendant submits their defence

Le_Kirk

Refer to post # 41 but, if KeithP's dates are correct (and he is never wrong), you just need to file it NOW.

happysue

Le_Kirk wrote: »

Refer to post # 41 but, if KeithP's dates are correct (and he is never wrong), you just need to file it NOW.

Thank you for getting back to me, KeithP was right. However the Defendant made a mistake and gave the wrong date so today is the deadline. The defendant has referred back to post #41 and has made changes. Now the defendant is asking for some feedback please.

The defendant is at work until 6pm and does not get much time to access the internet.

Thanks

happysue

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

2. The facts are that the vehicle, registration XXXXXX of which the Defendant is the registered keeper, was parked on the material date at XXXXXX.

3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate 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. Furthermore the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, 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.

5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. 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.

8. 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 £76.74, for 'contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest' which appears to be an attempt at double recovery.
9. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

10. 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.

11. 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.

12. 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.

13. 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.

14. The Protection of Freedoms Act 2012, Schedule 4 (POFA) 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). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

15. 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...''

16. 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.

17. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.

18. 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.


Statement of Truth:

I believe that the facts stated in this Defence are true.

happysue

The Defendant has decided to go with this defence. Thanks for all those who have replied.