Defence Claim Advice

ProbablyNotTheDriver

It seems I have less time with this than I'd realised- the defence is actually due tomorrow. I hope the below is a step in the right direction and would really appreciate any guidance with it. I hadn't quite grasped the point about the importance of the abuse of process Coupon so have added in your example text virtually word for word as I'd really like the judge to understand that point.

Thanks again for the help all!

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

2. The Particulars of Claim state that the case is brought against the Defendant as the “driver/keeper” which indicates 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. The ambiguity about the alleged status of the Defendant makes it difficult to structure a defence as it is unclear whether the claim is being made against the Defendant as the driver or keeper of the vehicle; two different states in law. Nevertheless, after viewing the photographs earlier provided by the Claimant, the Defendant believes that they may have been the driver of the vehicle with registration XXXXXX on the material date.

3. 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. The signs merely state that “Customers must remain on site for the entire period of parking”. The “site” is not defined. The car park in question has a low brick boundary wall with a gap in it which provides access to an adjacent row of shops. The area reads as a small local centre with some shops facing onto the car park and some shops being adjacent to the car park. All shops seem to depend on and be anchored by the car park. It is not made clear that the adjacent shops are not considered part of the ‘site’.

4. 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.

5. The Defendant has sought to engage with the Claimant from an early stage in this process. The Defendant has no legal training and is unfamiliar with this legal process, the relevant legislation and relevant case law. The Defendant set out their view in their initial letter dated XXXXX. The Claimant was invited to correct the Defendant if required however nothing other than generic, seemingly mass-produced, letters have ever been received which fail to address any of the specific points raised by the Defendant. This process has included threatening statements about the possibility of a County Court Judgement being registered against the defendant “which would make it difficult for you (the Defendant) to obtain credit”. The behaviour of the Claimant has been entirely unreasonable and some meaningful communication could have avoided this issue ever having to come before the Court.

6. The Defendant was advised in the initial Parking Charge Notice that the Defendant would be able to make a complaint. The Defendant sought to do this in their first letter to the Claimant dated XXXXXX and this request was not acknowledged. The grounds for wishing to raise a complaint was that the initial Parking Charge Notice was unecessarily threatening and was not compliant with the Protection of Freedoms Act 2012. The issue of making a complaint was raised again in a following letter from the Defendant dated XXXXXX and still has not been acknowledged. It is suggested that this is further evidence of the unreasonable behaviour of the Claimant.

7. The Claimant is not the lawful occupier of the land. The Defendant has 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. The Claimant is not believed to be 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.

Costs on the claim - disproportionate and disingenuous

8. 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.

9. 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.

10. 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.

11. It is trite law that non-existent and untrue 'legal costs' are also unrecoverable. 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.

12. 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.

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. Many informed County Court Judges have disallowed all added parking firm 'costs' in County courts, such as these cases, struck out within the last six months without a hearing, due solely to the pretence of adding 'damages' blatantly made up out of thin air.

(a) In Claim number F0DP163T on 11th July 2019, District Judge Grand sitting at the County Court at Southampton, struck out a overly inflated (over the £100 maximum Trade Body and POFA 2012 ceiling) parking firm claim without a hearing for that reason.

(b) In Claim number F0DP201T on 10th June 2019, District Judge Taylor 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. 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) where the abuse is inherent in the business model.

15. - The Order was identical in striking out all such claims without a hearing. - The judgment for these three example cases 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...''

16. 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.

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.

I believe the facts contained in this Defence are true.

KeithP

ProbablyNotTheDriver wrote: »

It seems I have less time with this than I'd realised- the defence is actually due tomorrow.

No it isn't.

As I said in post #4 above...

...you have until 4pm on Tuesday 10th December 2019 to file your Defence.

ProbablyNotTheDriver

Thanks Keith, I hadn't realised that the date of service is five days after the date of issue.

KeithP

ProbablyNotTheDriver wrote: »

Thanks Keith, I hadn't realised that the date of service is five days after the date of issue.

It does say on the back of your Claim Form:

The day of service is taken as 5 days after the issue date shown overleaf.

Coupon-mad

Defence is good but #8 onwards is not the current wording; I edited it last month and the current version is post #14 of beamerguy's Abuse of Process thread.

ProbablyNotTheDriver

I updated the abuse of process action and submitted my defence. Thanks again for the advice!