£400 court claim arrived - PCNs never received

buzzerbee

Hello again,

Please see below the final draft of Defence statement. Hoping to get this sent off tomorrow so any feedback would be gratefully received...


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 XXXXX, of which the Defendant is the registered keeper, was observed entering XXXXX carpark on XXXXX at XXXXX and leaving at XXXXX, and again observed entering on XXXXX at XXXXX and leaving at XXXXX.

3. The Particulars of Claim state that full details of Parking Charge Notices (PCNs) were delivered to the Defendant. The Defendant received no such notices. The Claim Form dated 12th September 2019 was the first instance the Defendant was made aware of the Claim. Had PCNs been received immediate action would have been taken by the Defendant.

4. 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. Further, 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.

5. Due to the lack of 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.

6. The Claimant’s vehicle was allegedly observed by the Claimant’s ANPR camera entering and exiting the carpark. The Defendant’s vehicle was at no point ‘parked’ during the two aforementioned periods. The Defendant’s vehicle was in near constant motion and no ‘parking’ occurred, the vehicle was never left unattended, the keys were never removed from the ignition. Furthermore, for the majority of the two aforementioned periods the Defendant was not driving the vehicle.

7. The Particulars of Claim (PoC) on the Claim Form refer to PCNs that have since been received by the Defendant following a Subject Access Request to the Claimant. It is impossible to understand the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached.

8. 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 whilst the vehicle is in motion.

9. The terms on the Claimant's signage are also displayed in a text size which is too small to be read from a passing vehicle, and is illegible whilst a vehicle is in motion. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract, particularly whilst a vehicle is in motion, and is therefore unable to enter into a contract with the Claimant.

10. 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.

11. 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 appears to be an attempt at double recovery.

12. In addition to the 'parking charge', the Claimant has artificially inflated the value of the Claim by adding costs of £60. These costs have not actually been incurred by the Claimant and are artificially invented figures attempting to circumvent the Small Claims costs rules using double recovery. 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 are a standard feature of a low cost business model and are already counted within the parking charge itself. There has been no legal advice or personal involvement by any solicitor in creating this template claim.

13. 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.

14. 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

Le_Kirk

Suggest you re-read post # 11 on this thread and then add the words pointed at by beamerguy.

beamerguy

Within para 12
There has been no legal advice or personal involvement by any solicitor in creating this template claim.

Why put that ...... the word template suggests it's not you anyway.

With regards to abuse of process as shown in paras 11, 12, 13 ... these are saying the same things and you could confuse a judge

This needs to be shown as per coupon-mad's text in post #12 of this thread ....
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

PLEASE USE THIS TEXT

buzzerbee

Thanks for the notes, I have copied coupon-mad's text in full...


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 XXXXX, of which the Defendant is the registered keeper, was observed entering XXXXX carpark on XXXXX at XXXXX and leaving at XXXXX, and again observed entering on XXXXX at XXXXX and leaving at XXXXX.

3. The Particulars of Claim state that full details of Parking Charge Notices (PCNs) were delivered to the Defendant. The Defendant received no such notices. The Claim Form dated 12th September 2019 was the first instance the Defendant was made aware of the Claim. Had PCNs been received immediate action would have been taken by the Defendant.

4. 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. Further, 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.

5. Due to the lack of 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.

6. The Claimant’s vehicle was allegedly observed by the Claimant’s ANPR camera entering and exiting the carpark. The Defendant’s vehicle was at no point ‘parked’ during the two aforementioned periods. The Defendant’s vehicle was in near constant motion and no ‘parking’ occurred, the vehicle was never left unattended, the keys were never removed from the ignition. Furthermore, for the majority of the two aforementioned periods the Defendant was not driving the vehicle.

7. The Particulars of Claim (PoC) on the Claim Form refer to PCNs that have since been received by the Defendant following a Subject Access Request to the Claimant. It is impossible to understand the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached.

8. 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 whilst the vehicle is in motion.

9. The terms on the Claimant's signage are also displayed in a text size which is too small to be read from a passing vehicle, and is illegible whilst a vehicle is in motion. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract, particularly whilst a vehicle is in motion, and is therefore unable to enter into a contract with the Claimant.

10. 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.

11. 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.

12. 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.

13. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

14. 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 and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

15. 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.

16. Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:

WEB ADDRESS

“at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

at para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.''

at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''
”* 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.

17. 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.

18. 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.

19. 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 earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''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...''

20. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

21. 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 untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

22. 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.

23. 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.

24. 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

Redx

Add Judge Giddins to 20 , with claim no etc too

1505grandad

Para 4 - it is usual to explain what the menu of choices are - i.e. (assuming the PoC so state):-

" 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."

Para 9 - "signage are also displayed in a (text size) which is too small to be read" - usual to say (font)

Le_Kirk

Where you have WEB ADDRESS, I would just put the title of the court case to which it refers as you cannot expect judges or administrators to follow your links, nor understand WEB ADDRESS (although I guess you were going to replace that with the actual hyperlink). Also EVERY paragraph requires a number.

buzzerbee

Thank you all for the comments which have been added/amended in the revised draft.

1505grandad wrote: »

Para 4 - it is usual to explain what the menu of choices are - i.e. (assuming the PoC so state):-

" 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."

@1505grandad - Thank you for this suggestion. There are no details as you suggest in the PoC, would this be suitable instead?

"3. The Particulars of Claim state that multiple PCNs were issued and that the Defendant has failed to settle their outstanding liability. 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. Further, 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."

KeithP

If they haven't offered a 'menu of choices', I would leave out the sentence "These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices." entirely.

buzzerbee

Hello all,

An update following the submission of defence... A letter from BW Legal has arrived to say they wish to proceed with the matter. The letter states they are 'confident the court will find in their favour' and it is 'likely a CCJ may be entered against you'. Obviously trying their scare tactics again.

Just to clarify though, *if* the court find in their favour and *if* I need to pay their client's costs, how much is this likely to be?

@Umkomaas gave a helpful example of costs earlier in this thread:

"£100 PCN
£25 court filing fee
£25 hearing fee
£50 claimant solicitor costs (capped maximum)
£x - small amount of interest."

But we have moved counties since the incident occurred - does the capped £50 still apply or could I be liable for their solicitors travel costs, accommodation, etc.?