Help, got until 24th November to submit Defence for VCS

Leviathan747

Coupon-mad wrote: »

Bargepole is not saying that is the full defence BTW.

He (and we) would have expected that you have already found his defence examples that are linked in the NEWBIES thread and know what to put as headings and other concise points for a decent defence for a run of the mill VCS case like all the rest.

Cheers CM. Am doing some reading and hoping to post a defence here just after weekend.

Leviathan747

V1 Defence - a first quick draft before I go away till the weekend, an amalgamation of my language and law. Help appreciated, but no snark please...only kindness. Cheers.

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. It is denied that any contravention or breach of clearly signed terms occurred, and it is denied that the driver was properly informed about any parking charge.
3. The Claim is issued in the name of Vehicle Control Services Ltd. (Company No. 04298820). However, at the heading of the signage displayed at the material location it is displayed as Excel Parking Services Ltd. (Company No. 02878122), a separate legal entity. This creates uncertainty as to which is the contracting party. Any purported or deemed contract is void for uncertainty of terms, such that the Defendant cannot be held liable to the Claimant for any alleged breach.
4. 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. 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 POFA, 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 is given, and which appears to be an attempt at double recovery.
7. Berkeley Centre Car Park has been free for 2 hours for twenty years. It is not reasonable to expect a resident to be aware of changes to parking unless directly leafletted. There is no reason to pay attention to signs in a car park that has been free for decades..
8. The driver does not remember seeing any signs on entry to the car park.
9. On entry to the car park, the driver has to pay attention to traffic flow in the one way system and not to any complicated signage, for safety reasons.
10. Signage is on the passenger side on entry and does not engage drivers.
11. Signage is at right angles to car on entry, so can not read it unless turn head 90 degrees, which would be dangerous.
12. Where the driver was parked, faces the back of signage and no conditions of parking were visible (Exhibit A).
13. There is no mention on SCC planning site of permission for cameras and signage at this site.
14. In summary, it is the Defendant's position that the claim 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.

hxxps://s575.photobucket.com/user/Solomon1_2009/library/VCS?page=1

bargepole

Leviathan747 wrote: »

V1 Defence - a first quick draft before I go away till the weekend, an amalgamation of my language and law. Help appreciated, but no snark please...only kindness. Cheers.

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. It is denied that any contravention or breach of clearly signed terms occurred, and it is denied that the driver was properly informed about any parking charge.
3. The Claim is issued in the name of Vehicle Control Services Ltd. (Company No. 04298820). However, at the heading of the signage displayed at the material location it is displayed as Excel Parking Services Ltd. (Company No. 02878122), a separate legal entity. This creates uncertainty as to which is the contracting party. Any purported or deemed contract is void for uncertainty of terms, such that the Defendant cannot be held liable to the Claimant for any alleged breach.
4. 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. 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 POFA, 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 is given, and which appears to be an attempt at double recovery.
7. Berkeley Centre Car Park has been free for 2 hours for twenty years. It is not reasonable to expect a resident to be aware of changes to parking unless directly leafletted. There is no reason to pay attention to signs in a car park that has been free for decades..
8. The driver does not remember seeing any signs on entry to the car park.
9. On entry to the car park, the driver has to pay attention to traffic flow in the one way system and not to any complicated signage, for safety reasons.
10. Signage is on the passenger side on entry and does not engage drivers.
11. Signage is at right angles to car on entry, so can not read it unless turn head 90 degrees, which would be dangerous.
12. Where the driver was parked, faces the back of signage and no conditions of parking were visible (Exhibit A).
13. There is no mention on SCC planning site of permission for cameras and signage at this site.
14. In summary, it is the Defendant's position that the claim 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.

hxxps://s575.photobucket.com/user/Solomon1_2009/library/VCS?page=1

Some observations:

Para 6 - When using abbreviations, you must specify them first, so that should be Section 4(5) of Schedule 4 of the Protection of Freedoms Act 2012 (''POFA'').

Para 12 - You do not send exhibits with Defences. That comes later at the Witness Statement stage.

Para 13 - Presumably SCC is Sheffield City Council? Here is a more complete version of that:

At the date of the parking event in issue, the Claimant did not have Sheffield City Council’s consent to display their contractual parking sign advertisement (or any of their other parking signs at the material location) that was essential for them to have been displayed lawfully, pursuant to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (“the Regulations”). Section 30 of the Regulations, as also Section 224 of the Town and Country Planning Act 1990, provides that any unauthorised display of an advertisement that requires Express Consent to be displayed is a strict-liability criminal offence. The parking contract on which the Claimant relies and was allegedly entered into by the driver’s act of parking is not lawfully enforceable for it being a contract that was illegal at its formation. At the date of the parking event in issue the parking contract with the driver existed only by virtue of the Claimant’s criminal act of advertising their contractual terms and conditions of parking in statutory breach and was therefore a void contract to be treated as if it never existed.

General - there needs to be a header with the name of the court, case number, and names of the parties. There must also be a statement of truth signed and dated at the end.

Leviathan747

Cheers BP:

V2 - Defence:

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

xxxxxxxxxxxx (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

DEFENCE

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 XXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay in Berkeley Precinct, Sheffield 11.

3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s);. 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.

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 that would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.

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 Claim is issued in the name of Vehicle Control Services Ltd. (Company No. 04298820). However, at the heading of the signage displayed at the material location it is displayed as Excel Parking Services Ltd. (Company No. 02878122), a separate legal entity. In addition, it is clearly indicated in the T&C sign (icons) adjacent to the ticket machine that tickets are issued in the name of Excel. This creates uncertainty as to which is the contracting party.

8. The effect of these contradictory and confusing terms, is that any purported or deemed contract is void for uncertainty of terms, such that the Defendant cannot be held liable to the Claimant for any alleged breach.

9. 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.

10. 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.

11. At the date of the parking event in issue, the Claimant did not have Sheffield City Council’s consent to display their contractual parking sign advertisement (or any of their other parking signs at the material location) that was essential for them to have been displayed lawfully, pursuant to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (“the Regulations”). Section 30 of the Regulations, as also Section 224 of the Town and Country Planning Act 1990, provides that any unauthorised display of an advertisement that requires Express Consent to be displayed is a strict-liability criminal offence. The parking contract on which the Claimant relies and was allegedly entered into by the driver’s act of parking is not lawfully enforceable for it being a contract that was illegal at its formation. At the date of the parking event in issue the parking contract with the driver existed only by virtue of the Claimant’s criminal act of advertising their contractual terms and conditions of parking in statutory breach and was therefore a void contract to be treated as if it never existed.

12. 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

bargepole

There you go, all sorted, and it wasn't brain surgery.

Leviathan747

bargepole wrote: »

There you go, all sorted, and it wasn't brain surgery.

Thank you for your support everyone! Very much appreciated

Leviathan747

KeithP wrote: »

With a Claim Issue Date of 24th October, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 26th November 2019 to file your Defence.

That's nearly three weeks 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.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. 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.

Hi Keith. Planning on uploading as above tomorrow. Could I ask why use the CCBC site, rather than directly as the MCOL defence? Just a bit concerned they won't receive it in time if I use CCBC tomorrow. Have not had laptop for the last week, hence the delay!

KeithP

Bargepole's 'what happens when' post linked from post #2 of the NEWBIES thread explains exactly why it is not a good idea to file a Defence via the MCOL website.

A Defence sent by email will arrive within seconds and you will receive an acknowledgement very shortly afterwards.

I wrote 'your Defence could be filed via email as suggested here'.
Notice the words 'could' and 'suggested'.

I was only offering a suggestion, but it is a suggestion I have made over nine hundred times in the last year alone.

Leviathan747

KeithP wrote: »

….a suggestion I have made over nine hundred times in the last year alone.

900?? You're AMAZING!! Thank you!

PS What happens if MCOL gets the 'defence received' confirmation after the Tuesday 26th deadline?

KeithP

If a Defence is not recorded as 'received' on MCOL, then anytime after the due date the Claimant can seek a Default Judgment against you. That's an automatic process.

Of course if you have an email acknowledgment of receipt by the CCBC, then it will be possible to 'unwind' the CCJ but it will be a bit of a faff.

Why don't you file your Defence now rather than procrastinating further?

The sooner you file the Defence the less likelihood of things getting out of step.

You've had a good Defence waiting to be filed for weeks now.