'Template' defence suggestion - NB: ultimately, your choice of defence wording is your own

Coupon-mad

CLAIM FORM FROM A PARKING FIRM?

THEY ARE VERY EASY TO DEFEND. NO RISK, NO CCJ IF YOU FOLLOW THE ADVICE IN FULL.

PLEASE READ THIS POST FIRST TO UNDERSTAND HOW TO USE SOME OR ALL OF THIS SUGGESTED 'TEMPLATE' DEFENCE, THAT YOU THEN MAKE YOUR OWN.

THIS FORUM DOES NOT PURPORT TO CONDUCT LITIGATION. YOUR FINAL DEFENCE THAT YOU DECIDE TO EDIT, DRAFT AND FILE WITH THE CNBC IS YOUR OWN WORK. NOTHING ON THIS BOARD IS LEGAL ADVICE, JUST OPINIONS BASED ON EXPERIENCE OF PROVEN WINNING DEFENCES.

THE MAIN INFO ABOUT THE SMALL CLAIMS DEFENCE PROCESS AND WHAT HAPPENS WHEN, IS HERE IN THE NEWBIES FAQS (2nd post) SO READ THIS TOO:

https://forums.moneysavingexpert.com/discussion/comment/64350585/#Comment_64350585

PLEASE RETURN TO THE NEWBIES THREAD POST 2 AT LATER STAGES, AS IT TAKES YOU RIGHT THROUGH TO WITNESS STATEMENTS & HEARINGS.

Below in the 2nd post here on this thread, is some wording you could decide to use & adapt, in a case where the alleged breach is actually specified in the Particulars of Claim.

If you use this wording then the facts of your case can be added as #3 - add more paragraphs if needed (BUT NOT TOO MUCH AS THE MCOL SYSTEM HAS A MAX LINE COUNT) and adjust the numbering.

No posting your drafts on this thread please.

By all means start a new discussion about your own case if you haven't already got a thread about that PCN, and show us your draft defence wording (your added paragraphs only, please) on your own thread.

You will be using MCOL via your Govt Gateway account.

The administrative steps are simple:

FIRST THING TO DO - BUT NOT SOONER THAN DAY FIVE FROM THE 'ISSUE DATE':

Acknowledging service of a claim (these steps MUST be done by the Defendant, and that named person can't be changed to the driver now; it is too late)

Here is the up to date document from SoftwareMad, where she shows how to acknowledge a claim, which is to be done within the first fortnight to buy time to defend (but preferably do this after DAY FIVE, or in theory, you eat into your allowed days!):

https://www.dropbox.com/s/ni1h8g3u5skvynt/MCOL AOS help file.pdf?dl=0

YOU WILL NOT GET A RESPONSE.  DO NOT WAIT. AFTER AOS THE BALL IS STILL IN YOUR COURT: YOU MUST FILE A DEFENCE IN TIME.

You may decide to use and adapt as your own, the Defence wording suggested in the post below...

...unless you have a CEL (in-house only), Elms Legal, Gladstones or a Moorside Legal claim without the alleged breach/reason specified (and also specifically for DCB Legal claims for ParkingEye or Group Nexus / CP Plus) in which case, you can use this wording as paragraph 3, re CEL v Chan and CPMS v Akande, here:

https://forums.moneysavingexpert.com/discussion/comment/81571257/#Comment_81571257

When you are happy with what you've drafted, your defence is to also be filed via MCOL

Submitting your defence after having already completed the AOS on MCOL:

THE FIRST 8 STEPS:

1. Use MCOL to put in your Defence.  Do not forget to hit 'SUBMIT' then check the Claim History, to see that the defence is safely registered.
2. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire or the usual template letter saying they 'intend to proceed' and/or want you to contact them to 'settle'. Ignore that and pleeeease don't show us!
3. Wait for your own Directions Questionnaire. It comes by post from the CNBC but DO NOT USE THE PAPER VERSION AS THE CNBC DO NOT ACCEPT SCANS OR PHOTOS OF PAGES. Instead, Google for it (court form N180) and download, complete, save as a PDF then email it to the CNBC (see box below for the DQ email). You should also cc in the info@ address for the legals acting for the Claimant (not the parking firm - unless they aren't using a solicitor). It's a simple form but all the DQ answers are here:   https://forums.moneysavingexpert.com/discussion/comment/81302208/#Comment_81302208 
4. Mediation is Mandatory now. It's a pointless phone call. YOU SHOULD GIVE THE MEDIATOR 5 MINUTES OF YOUR TIME -  Offer zero or a tenner, if you technically owe a parking tariff. For what to say to the Mediator, see:  https://forums.moneysavingexpert.com/discussion/comment/80935749/#Comment_80935749  Another example:   https://forums.moneysavingexpert.com/discussion/comment/81148195/#Comment_81148195 And how a regular handles it: https://forums.moneysavingexpert.com/discussion/comment/81816730/#Comment_81816730
5. Except in cases where you have filed a counterclaim (which are allocated to your local court quicker and the CNBC is no longer involved) the completed downloaded DQ should be returned by email to the CCBC to this address:  DQ.CNBC@justice.gov.uk.       Cc a copy of your completed DQ to the Claimant (or their solicitor if they are using one). Their postal address is on your Claim Form but you can find an email for them by searching this forum. 
6. DO NOT USE RECORDED (OR SPECIAL) DELIVERY FOR ANYTHING TO A PARKING FIRM OR THEIR SOLICITOR.   DO NOT EXPECT ROGUE FIRMS TO SIGN FOR YOUR LETTERS.  IF THEY DON'T, ALL YOU HAVE IS PROOF OF NON-DELIVERY, WHICH IS THE EXACT OPPOSITE OF WHAT YOU NEED! DO NOT USE THE PAPER N180. DO NOT SCAN IT.
7. Will you have to attend a hearing? Rarely! Usually, the PPC discontinues; very common with DCB Legal! Will that hearing be at Northampton?  NO!  That's just a central starting point for claims.  If you are an individual, you get the choose your local court. You do NOT want your case 'heard on the papers'. You want a hearing because that tends to see most cases discontinued.
8. You can claim your costs if you win, the hearing might never happen and you risk nothing (no CCJ, no huge costs) by defending. If you end up among the handful who report a loss here you'd have 30 days to pay ... and the total is less than on the claim form (£185 - £212 total for a single PCN).

DO NOT WORRY ABOUT HEARINGS.

MOST CLAIMS ARE DISCONTINUED.

THIS IS YOUR ONLY FAIR DISPUTE RESOLUTION AND IT IS A NO-BRAINER TO DEFEND A CLAIM.

THE NEXT POST IS BASED ON OUR EXPERIENCE AND OPINION: WE PROVIDE A FORM OF WORDS FOR A PARKING CLAIM DEFENCE THAT HAS WORKED THOUSANDS OF TIMES:

Coupon-mad

1. The Claimant’s sparse case lacks specificity and does not comply with CPR 16.4, 16PD3 or 16PD7, failing to 'state all facts necessary for the purpose of formulating a complete cause of action'. Further, the Claimant has improperly added a false 'fee' or damages to the original Parking Charge (PC). This sum is not legally recoverable and constitutes an attempt at double recovery, which is unreasonable conduct under CPR 27.14(2)(g). The binding Supreme Court judgment in ParkingEye Ltd v Beavis [2015] UKSC 67 held that an £85 parking charge more than covered all the 'costs of enforcement' which HHJ Moloney had listed as the pre-action work of a DVLA look-up and a simple automated letter chain, including a LBC. The same heads of cost cannot lawfully be counted twice and interest should also be disallowed. Exaggerated claims for impermissible sums are good reason for judges to intervene and the court is invited to strike out the claim using its powers under CPR 3.4.

2. The allegation(s) are vague and liability is denied for the sum claimed, or at all. The delay in bringing proceedings lies with the Claimant, making retrieving material evidence difficult, which is highly prejudicial. The Defendant has little knowledge of events, save as set out below and to admit that they were the registered keeper.

^^ADD 'and driver' if admitting that.

if you were not driving and believe the NTK was non-POFA, add that fact.

Change 'registered keeper' to hirer or lessee if it's a company or lease/fleet car (you are not the rk in that case).

Except in cases with no breach specified (see link in post 1 above) paragraph 3 is yours to write and the finished defence is your own work.

3.  EITHER:

IF THE POC FAIL TO STATE THE BREACH (e.g. Civil Enforcement Ltd, Gladstones & Moorside cases currently all fail to specify an allegation) BRIEFLY REFER TO CEL v CHAN & CPMS v AKANDE. THE LINK TO SOME SUGGESTED WORDING IS ALREADY IN THE POST ABOVE. 

OR

If they DO state the breach in the POC (in-house ParkingEye claims, also BW Legal and most DCB Legal cases except for ParkingEye or CP Plus) then you must respond to the allegation.

Add BRIEF details as your para 3, e.g.

- if you didn't get any letters or it was years ago & you can't recall if you were driving, say that. ONLY IF TRUE

- you appealed and they refused it?

- the machines or app weren't working?

- was it a double dip ANPR error?

- or a keying error, were you staff/lived there with a right to park?

- saw no signs because they were sparsely placed or it was dark?

- was the driver disabled, elderly or pregnant and needed more time?

(BE CONCISE, OR YOUR DEFENCE WON'T FIT IN THE MCOL DEFENCE BOX - SO TEST IT, CHECK AND REDUCE YOUR LINE-COUNT!

IF YOU NEED TO, YOU CAN REMOVE PARA 10. NOT A PROBLEM AND ULTIMATELY, IT'S YOUR DECISION HOW TO DEFEND).

4. It is neither admitted nor denied that a term was breached but to form a contract, there must be an offer, acceptance, and valuable consideration (absent in this case). The Consumer Rights Act 2015 (s71) mandates a 'test of fairness' duty on Courts and sets a high bar for prominence of terms and 'consumer notices'. Paying regard to Sch2 (examples 6, 10, 14 & 18), also s62 and the duties of fair, open dealing/good faith, the Defendant notes that this Claimant reportedly uses unclear (unfair) terms/notices. On the limited information given, this case looks no different. The Claimant is put to strict proof with contemporaneous photographs.

5. DVLA keeper data is only supplied on the basis of prior written landowner authority. The Claimant (an agent) is put to strict proof of their standing to sue and the terms, scope and dates of the landowner agreement, including the contract, updates, schedules and a map of the site boundary set by the landowner (not an unverified Google Maps aerial view).

6. To impose a PC, as well as a breach, there must be: (i) a strong 'legitimate interest' extending beyond compensation for loss, and (ii) 'adequate notice' (prominence) of the PC and any relevant obligation(s). None of which have been demonstrated. This PC is a penalty arising as a result of a 'concealed pitfall or trap', poor signs and covert surveillance, thus it is fully distinguished from Beavis.

7. Attention is drawn to:

(i) paras 98, 100, 193, 198 of Beavis (an £85 PC covered all costs and generated a huge profit shared with the landowner); the court should also read paragraph 3.4 of the original judgment by HHJ Moloney in Beavis, confirming what that authority means by 'costs of the operation', and

(ii) the binding judgment in ParkingEye v Somerfield Stores ChD [2011] EWHC 4023(QB) which remains unaffected by Beavis and stands as the only parking case law that references costs abuse. HHJ Hegarty held in paras 419-428 (his judgment later ratified by the CoA) that 'costs' inflating a £75 PC (already increased from £37.50) to £135 were disproportionate to the very minor cost of a letter-chain and 'would appear to be penal'. The court should note that HHJ Moloney referenced this case in Beavis.

8. The Parking (Code of Practice) Act will curb rogue conduct by operators and debt recovery agents (DRAs). The Government launched a Public Consultation likely to herald a ban on double recovery 'fees', which the relevant 2022 Minister called ‘extorting money from motorists’. Both the previous and present Governments found that the high profits may be indicative of firms having too much control 'indicating that there is a market failure'.

9. Pursuant to Sch4 of the Protection of Freedoms Act 2012 ('POFA') the claim exceeds the maximum sum and is unrecoverable: see Explanatory Note 221: 'The creditor may not make a claim against the keeper ... for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (para 4(5))'. There is no keeper liability for added false fees and the POFA specifically states that 'double recovery' is not allowed if a creditor uses any other remedy.

10. The Defendant seeks fixed costs (CPR 27.14) and a finding of unreasonable conduct and further costs (CPR 46.5). Parking cases now make up a third of all small claims which has overburdened HMCTS, causing the most CCJs of all sectors yet almost invariably discontinuing defended cases before hearings, which indicates a deliberate business model of systemic abuse and makes Claimants liable for costs (r.38.6(1)). Whilst this does not 'normally' apply to the small claims track (r.38.6(3)) the White Book has this annotation: 'Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))'.

YankeeBrit

Copy of @Coupon-mad updated WS in RTF format for easy editing:

dropbox.com/scl/fi/i1u2vudfmb4xgyksxf6fd/Aug2023WS.rtf?rlkey=bfedahtd4lw4pqth2cncrrpli&dl=0

LZH85

Thank you so much for the above, just submitted my defence online. Please note that there is a restriction of 120 lines when logging your defence online and hence I had to tweak the above as it wouldn't all fit. Also a reminder to save as you go as it times out!

LZH85

Coupon-mad said:

LZH85 said:

Thank you so much for the above, just submitted my defence online. Please note that there is a restriction of 120 lines when logging your defence online and hence I had to tweak the above as it wouldn't all fit. Also a reminder to save as you go as it times out!

But that's not how we currently submit defences. Why did you do it in MCOL? 

Whats the issue? The claims form states you can submit online at www.moneyclaim.gov.uk, the online defense form is exactly the same as the paper defense form and it populates everything. Its also time stamped with an audit trail as to when its submitted. You don't have to physically sign a paper version if you submit an online version.

RandomGuy2024

@Coupon-mad is the address below a typo? Should it be DQ.CCBC@justice.gov.uk?

10. Except in cases where you have filed a counterclaim (which are allocated to your local court quicker and the CNBC is no longer involved) the completed DQ should be returned by email to the CCBC to this address:  DQ.CNBC@justice.gov.uk.       Cc a copy of your completed DQ to the Claimant (or their solicitor if they are using one).  Their postal address is on your Claim Form but you can find an email for them by searching this forum.

Regards

sammyb1996

Doesn’t look like this defence template worked for me, the judge struck my defence out. Any chance someone could look at my post on a new thread I started? 

kenzie123

sammyb1996 said:

Doesn’t look like this defence template worked for me, the judge struck my defence out. Any chance someone could look at my post on a new thread I started? 

Sorry to hear that, can you link to your post?

Le_Kirk

Coupon-mad said:

Comments invited although I am now away for a week!

I've updated the Template Defence, which can now be used and put in on MCOL. It's only 10 paragraphs and leaves enough lines for people to put some details in as para 3.

Thanks to @Johnersh @bargepole and @ChirpyChicken for the bits I have plagiarised.

There are now only 8 steps.

No need for headings nor a SoT, nor signature.  No emailing it!

Noted, thanks.  As you refer specifically to Chan & Akande after paragraph #3, would that be a good place to show the Judgments link?

Car1980

Comments invited although I am now away for a week!

Just three thoughts (shoot me down!) that may or may not be worth incorporating:

• claimant makes claim based on contract law but has never provided it
• "confirmed" better than "admitted"?
• worth mentioning that discontinuance was an intention from day 1 and that is what makes it unreasonable?

E.g.


2.  It is difficult to respond but these facts come from the Defendant's own knowledge and honest belief. To form a contract, there must be a prominent offer, acceptance, and valuable consideration. It is neither admitted nor denied that the driver breached any term. Section 71 of the Consumer Rights Act 2015 (‘the CRA’) creates a statutory duty upon Courts to consider the test of fairness. The CRA introduced new requirements for prominence of terms and 'consumer notices'. Pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Sch2 and the duties of fair/open dealing and good faith, the Defendant avers that this Claimant generally uses unclear and unfair terms/notices. On the limited information available, this case appears to be no different. The Claimant has never provided the wording of the contract they rely upon in any correspondence and is put to strict proof with contemporaneous photographs. The Defendant reserves the right to amend the defence if details of the contract are provided. However, the court is invited to strike this claim out using its powers pursuant to CPR 3.4.

3. The vehicle is recognised and it is confirmed that the Defendant was the registered keeper.

10. The court’s attention is drawn to the common outcome in bulk parking claims, of an unreasonably late Notice of Discontinuance. Whilst a Claimant is liable for a Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))." It is submitted that a definition of unreasonableness encompasses an intention to discontinue that has been present since the start, as may be stipulated in any contractual relationship between the parking company and bulk litigator.

Happy to delete this in a couple of weeks so we don't clog up this thread.

emmy_lou_2

Hi 
Regarding the updated template, if we are replying to a Gladstone claim do we begin with the original template 

1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  adding basic facts as paragraph 6 and then continue with paragraphs 4 + of the new updated template  or  do we reply with the new template 

1. The Claimant's sparse case lacks specificity and does not comply with CPR 16.4, 16PD3 or 16PD7, failing to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable to understand with certainty the allegation or the heads of cost.

in its entirety and adding personal facts in paragragh 3 ??