Draft Defence Statement for checking please

Cottons_Girl

KeithP wrote: »

That's exactly what it is, and if people do wait too long they find themselves with a Default Judgment to unravel.

Cheeky !!!!!!s!! Least I’ve got my defence there ready. Some changes based on feedback so far and I can wait a little longer “incase” they do send me anything else and I need to add that in. Thanks for taking the time to reply

KeithP

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Cottons_Girl

KeithP wrote: »

Yes, send a Subject Access Request to CEL's Data Protection Officer.

Court location gets adjusted to your local County Court later in the process - at Directions Questionnaire time.

Cool. I’ll do that next then. And just so I’m sure, I only reply to the questionnaire from the CCBC once my defence is submitted and received not the one they send to put pressure on me. Then back to newbies thread to follow guidance on that?

Cottons_Girl

Thank you so much. I did worry about this and didn’t know how to change it. Will action now.

Le_Kirk

You have been pointed at more concise (and more up-to-date) defences in the NEWBIE sticky post # 2, written by Bargepole and also at the ABUSE of PROCESS thread by beamerguy where you can take post # 14 of that thread and add it to your defence following paragraph 14, renumbering all paragraphs thereafter. This will add strength to your argument about claiming more than £100.

Cottons_Girl

Thanks I'll take a look at that now

Le_Kirk

Cottons_Girl wrote: »

Just reading them other threads, can I clarify, are you saying that my current post is a bit to word heavy and scatted in arguments and to use the format written within Bargepole where applicable with the addition of the information from abuse of process? Thanks

That would be my advice, just make sure the defence covers refuting what the PPC claims.

Cottons_Girl

DEFENCE

The Defendant puts the Claimant to strict proof in respect of each and every pleaded allegation.

The Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre-action correspondence.

1. The Claim Form issued on the 23rd September 2019 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited” (Claimant’s Legal Representative)”. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.
(a) The Claim Form Particulars were extremely sparse and not sufficient in detail.
(b) The later mailed ‘detailed’ particulars were vague and The Schedule of Information included was sparse of detailed information.

2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). This prevents a full defence being filed at this time because a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

3. The Claimant failed to comply with The Practice Direction on Pre-action Conduct, paragraph 2 as the Claimant’s “Letter before County Court Claim” did not include –
(a) A clear summary of the facts on which the claim is based.
(b) How their costs were calculated.
(c) List of essential documents on which the Claimant intends to rely.
(d) Did not include an Alternative Dispute Resolution (ADR) form that the claimant considers the most suitable and invite the Defendant to agree to this.
(e) Identify and ask for copies of any relevant documents not in the Claimant's possession and which the Claimant wishes to see.
(f) Refer the Defendant to the Practice Direction and in particular draw attention to paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction.

4. In accordance with Protection of Freedoms Act 2012 (POFA) Schedule 4 paragraph 9 (7) states in relation to serving a Notice To Keeper; when notice is given, it must be accompanied by any evidence, which the Claimant failed to do and so the Claimant did not comply with POFA 2012 regulations.

5. The Claimant claims it is both lawful and commercially justifiable to implement a disincentive parking charge citing the Supreme Court decision in ParkingEve v Beavis [2015] UKSC 67. This does not assist the Claimant and in fact, supports this defence. The Beavis case was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a license to park free. None of this applies in this case.
6. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.
7. Further, the Claimant states there are many clear and visible signs at the entrance to and around the Site, notifying drivers of the terms and conditions of use, of which are displayed on the signage. They claim further the signs and clear wording thereon constitute an offer by the Claimant to enter into a contract with drivers, of which they summarise the terms within the Schedule of Information to be a maximum 2 hours free parking.
(a) This is incorrect. An investigation into this matter retrospectively, has identified that the car park in question offers 3 hours free parking not 2. The Defendant therefore argues the terms are not sufficiently set out in a sufficiently clear manner. If the Claimant is unclear on their own ‘terms and conditions’ on the site in question; then how can the Claimant’s signage, be capable of creating a legally binding transparent contract to any reasonable person reading them or driver passing them.

8. Furthermore, contrary to the Claimant’s claims of ‘many clear and visible signs at the entrance to and around the site’. There are not. The site has few and sparse signs that are not prominent, clear or legible from all parking spaces and driving angles. The terms and the sum on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and are in such a position that anyone attempting to read the tiny font would be unable to do so easily and is not sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist. The Defendant claims this is a breach of the POFA 2012 Shedule 4 and Schedule 18 of the BPA CoP and offers further evidence of distinguishing this case from the Beavis case as;
(a) At the time of the alleged event there was an absence of any/visible signs at site/entrance.
(b) The signs have no mention of any debt collection additional charge or interest, which cannot form part of any alleged contract.
(c) The signs were not compliant in terms of the font size, lighting or positioning.
(d) The sum pursued exceeds £100.
(e) There is / was no compliant landowner contract.

9. The Claimant is put to strict proof that it has sufficient prorpietary 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. The Defendant requires the Claimant to produce an unredacted copy of the contract with the landowner.
10. Paragraph 7 of the BPA CoP defines the mandatory requirements and the Defendant puts the claimant to strict proof of full compliance at the time of the complaint:
(a) If the claimant wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
(b) The written authorisation for that time must also set out.
(i) The definition of the land on which they operate, so that the boundaries of the land can be clearly defined.
(ii) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
(iii) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.
(iv) Who has the responsibility for putting up and maintaining signs?
(v) The definition of the services provided by each party to the agreement.

11. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

12. The POFA 2012 Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, yet the Claimant has inflated the claim total to £256.03. Amounts added to the £170 ‘parking charge’ include a charge of £11.03 for interest, a £25.00 court fee and £50.00 legal representative’s costs in a clear and cynical attempt to circumvent the Small Claims cost rules to achieve a double recovery.
13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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:

“ 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 “.''

19. The purported £50 '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 Claim Forms Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

20. 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.

21. 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). 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.

22. 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...''

23. 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.''

24. 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.

25. 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.

26. 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.
Statement of Truth
I believe that the facts stated in this defence are true.

Le_Kirk

That's about the right length. EVERY paragraph needs a number. Are points 1, 2 & 3 still in use on Bargepole's concise defences? I thought he had shortened it.

Cottons_Girl

Le_Kirk wrote: »

That's about the right length. EVERY paragraph needs a number. Are points 1, 2 & 3 still in use on Bargepole's concise defences? I thought he had shortened it.

Thanks. I’ll number the first 2 points. I did use and reference Bargepole’s points but these are just more specific to my case as I recieved ‘detailed’ PoC after the initial claim form and I really wanted to drive home how Practice Direction hasn’t been followed in hope it results in CEL withdrawing their claim as they and the judge will know they haven’t adhered or followed protocol. Hence I added more detail to be specific to my case!