Real or fake N1 Form - No POC?

Le_Kirk

The defendant was (a passenger) in a car where the occupants had made a pre-booked............

GetSmarterVictoria

Right, I've now added the full abuse of process details by @coupon-mad (post #14 of the beamerguy thread) and also amended the details to show "passenger". I have also added the giddins case reference so hopefully this should be better.

Please can you let me know your thoughts? Hoping that i've finally got this right and can send it on it's way today.

Thank you in advance!

Issue Date of Claim: 23/09/19

IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

CIVIL ENFORCEMENT LTD (Claimant)

-and-

XXXX XXXXXX (Defendant)

________________________________________
DEFENCE
________________________________________


1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. 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.

3. It is admitted that on 24/11/2018 the Defendant's vehicle was parked at [location] in a parking bay owned by xxxx estate agents where the occupants had made a pre-booked appointment to sign a tenancy agreement. The Defendant was a passenger in the vehicle where the occupants were valid visitors following advice by staff prior to attendance to park in one of their spaces. The Defendant relied on this advice and under Promissory Estoppel the Claimant should be thus estopped on their claim.

4. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

4.1. The Claimant has provided no evidence 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")

4.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

4.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

4.2.2. 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.

4.3. 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.

5. The Defendant notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation. The N1 form being the initial form of contact made by the Claimant.

6. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation.

7. 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.

7.1. 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.

7.2. 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.

7.3. 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.

7.4. 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.

7.5. 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:

http://www.bailii.org/uk/cases/UKSC/2015/67.html

“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.''

7.6 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. 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.

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 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...''.

9.1. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Southampton Court on 27th September 2019, Judge Giddins struck out two claims by BW Legal for abuse of process (case numbers F4DP5264 & F4DP5279). 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.''

10. 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.

11. 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.

12. 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.

13. 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.

Statement of Truth:

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

Name XXX
Signature XXX
Date XXX

Coupon-mad

Nailed it! :T

All I would remove is this phrase from #4, as you are denying being the driver so makes no sense to say 'prove it' as such (and they can't):

The Claimant is put to strict proof.

Follow KeithPs earlier advice about how to submit this defence by email (not on MCOL as such) and he also points the way ahead to the next stages, because defence is not the only paperwork needed long the way.

1505grandad

Just a last observation - there are 2 "in summary" paras

Le_Kirk

Just (another) couple of small points, you have a hyperlink just after Para 7.5 - judges won't follow links, just type the title to which it refers (ParkingEye v Beavis probably) and then the next paragraph requires a number.

GetSmarterVictoria

@Coupon-Mad & @Le_Kirk - Thank you both very much!

I edited to remove "The Claimant is put to strict proof". I removed the additional earlier summary and left the latter one and removed the hyperlink to reference Parkingeye v Beavis.

I've sent it to the email address provided by Keith. Is this going to be received by MCOL in time for the 28th Oct deadline?

Again, I cannot thank you enough.

Would you like me to paste my final defence for the benefit of future defence researchers?

KeithP

GetSmarterVictoria wrote: »

I've sent it to the email address provided by Keith. Is this going to be received by MCOL in time for the 28th Oct deadline?

It certainly will. The CCBC will receive it almost instantly and you will get an automatic email receipt.

That's the bit that matters. When they actually update MCOL to show 'Defence received' is of no consequence.

GetSmarterVictoria

I've just received the documentation from the courts which states mediation or hearing. I remember reading to go straight for hearing so that's what I'll be doing but...first....back to the newbie thread for me to make sure everything is perfect!

Le_Kirk

You are right, no point in mediation as you want to pay £0 and the PPC want £FULL. End of mediation!

GetSmarterVictoria

Just a quick one - the questionnaire (N180) only has one copy but states to submit to the court and the claimant.

Am I okay to send the paper copy to the court and send CEL an emailed copy? Only asking as my form is due in by Monday (I know I've left it too late but our landlord has decided to end our tenancy just after xmas so things have been stressful).

I'm away in Cornwall as of 3am this morning so I can get it posted first class from there, just need to know if an email to CEL will be sufficient otherwise I'll have to find somewhere down there to make a copy.

Thanks!