Defence Advice please CASE STRUCK OUT

D_P_Dance

 then you and i would have to employ a solicitor to take someone to the small claims court.

I very much doubt that I would need a solicitor.  I have won four cases there.   Why do you think that you would need one, the law is not brain surgery.

nosferatu1001

Claim forms don't have to be signed by a legal professional. That's not up fir debate 

covid- your defence is based on the new template? If so it doesn't need "major work". There's only two para needing your input 

covid1956

nosferatu1001 said:

Claim forms don't have to be signed by a legal professional. That's not up fir debate 

covid- your defence is based on the new template? If so it doesn't need "major work". There's only two para needing your input 

I haven't found the new template, i found a defence on this site that was successful and modelled my defence on that.
Over the years VCS (and BW Legal who were chasing me for the PCN ) the amount has varied i think once it went up to almost £300!!. At present they want £160 so i think i saw a thread about putting the £60 in the defence as being unfair (will search the forum )
Thanks for your help(keep it coming)
Covid

KeithP

I haven't found the new template,

Then look again at my 22 March at 5:45PM post. <<<=== that's a link, click on it.

D_P_Dance

And read the latest changes to CPRs wrt witness statements.

covid1956

KeithP said:

With a Claim Issue Date of 19th March, and having filed an Acknowledgment of Service on 21st March, you have until 4pm on Monday 20th April 2020 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To file a Defence, follow the guidance in this post:

https://forums.moneysavingexpert.com/discussion/comment/76880595#Comment_76880595

Guidance on creating a Defence is also in that thread - in the first post on that thread.

Don't miss the deadline for filing a Defence.

Keith   that link takes me to a step by step of how to acknowledge the claim form using MCOL which i used to acknowledge the claim on Saturday

KeithP

covid1956 said:

KeithP said:

With a Claim Issue Date of 19th March, and having filed an Acknowledgment of Service on 21st March, you have until 4pm on Monday 20th April 2020 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To file a Defence, follow the guidance in this post:

https://forums.moneysavingexpert.com/discussion/comment/76880595#Comment_76880595

Guidance on creating a Defence is also in that thread - in the first post on that thread.

Don't miss the deadline for filing a Defence.

Keith   that link takes me to a step by step of how to acknowledge the claim form using MCOL which i used to acknowledge the claim on Saturday

But didn't that sentence I have now emboldened help at all?

covid1956

KeithP said:

covid1956 said:

KeithP said:

With a Claim Issue Date of 19th March, and having filed an Acknowledgment of Service on 21st March, you have until 4pm on Monday 20th April 2020 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To file a Defence, follow the guidance in this post:

https://forums.moneysavingexpert.com/discussion/comment/76880595#Comment_76880595

Guidance on creating a Defence is also in that thread - in the first post on that thread.

Don't miss the deadline for filing a Defence.

Keith   that link takes me to a step by step of how to acknowledge the claim form using MCOL which i used to acknowledge the claim on Saturday

But didn't that sentence I have now emboldened help at all?

Hi Keith,
You have been a great help, the forum is so large its easy to get lost when you click and scroll.
I will post a better defence soon after sorting out a few things, it wont be perfect and i am quite happy for anyone to criticise and suggest improvements
thanks to all - keep the advice coming
Covid

Redx

The advice is very simple

Use the recent template posted last month by coupon mad that everyone else is using and adapt the paragraphs in red , posting the draft on here with the red paragraphs you changed highlighted in bold (or in red) so that people only need to check those few paragraphs

Or

Go to a legal forum like legal beagles and get them to review your non template defence

This is a consumer rights forum , not a legal aid forum , few if any lawyers come here and I haven't seen any replies by a qualified lawyer to your posts here, so keep it real and understand the limitations of this forum and that your forum expectations are unrealistic

covid1956

Hello everyone
Below is my second attempt at a defence, your advice is welcome as always
thanks Covid

IN THE COUNTY COURT

 

CLAIM NUMBER 12345

 

Between

 

VEHICLE CONTROL SEVICES  (Claimant)

 

V

 

COVID1956  (Defendant)

 

 

DEFENCE

__________

 

 

1.    ABUSE OF PROCESS

2.    NO LANDOWNER CONTRACT

3.    INADEQUATE SIGNAGE

4.    INCORRECT LOCATION ON PCN

5.    UNREASONABLE BEHAVIOUR

6.    FAILURE TO COMPLY WITH PRE-ACTION PROTOCOLS

 

The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the driver of the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ to the Claimant.

 

1.ABUSE OF PROCESS

 

1.1 In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £160 This figure is a penalty, far exceeding the £85 parking charge in the Parking Eye Ltd v Beavis case. 

 

1.2 Judge Jones-Evans sitting in the County Court of Caernafon on the 4th of September 2019 – Claim No F2QZ4W28; Ordered and declared that “The claim for the global sum of £160 is a penalty and unenforceable in law. It is nothing but a poor attempt to go behind the decision of the Supreme Court in Beavis” The claim was struck out and declared to be wholly without merit and an abuse of process.

1.3 The charge of £60 on a parking charge of £100 is 60 per cent is disproportionate. The charge falls foul of the decision of Beavis, it falls foul of the unfair contract terms provisions of the Consumer Rights Act and it is quite clearly not lawful.

1.4 The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was entered into with the Claimant, whether express, implied, or by conduct.

 

2.LANDOWNER CONTRACT

 

2.1 No evidence that there is a contract leading from the landowner to VCS so the claimant has failed to prove they have a contractual right to issue Parking Charge Notices on behalf of the landowner or the claimant: or to manage this car park or to issue legal proceedings.

 

Can VCS provide admissible evidence that a valid signed contract between the landowner and VCS dated prior to 28/2/2015 with specific reference to Strawberry Place East car park exists, and that it has been forwarded to the IPC.

 

Provide admissible evidence that VCS have written permission to Issue penalty charge notices of £60.00 and £100.00 at this car park.

 

Provide admissible evidence that VCS can take legal action for non-payment of the penalty charge at Strawberry Place East car park.

 

Provide admissible evidence that VCS can litigate in their own name.

 

3.SIGNAGE

3.1The defendant was a regular user of this car park, Strawberry Place East, as it offered free parking after 6.00pm. It was dark as the defendant drove into the car park; he saw no new signs when he entered the car park after 7.30 pm on 28/2/2015. The wording on the white sign at the car park entrance was the same as on previous visits. The car park is rectangular in shape, is unlit, with only 2 street lamps located on one side, at the road edge, illuminating the main road not the car park.

3.2 The main entrance sign does not conform to the Code of Practice as it does not have the wording “Managed by” (Page 26 of the Code of Practice Schedule 1 states “It must also show the Operators name”) in addition it does not inform the driver that new charges apply (Page 26 of the Code of Practice Schedule 1 states “signage at the entrance must make it clear that new terms and conditions/charges apply”) Page 25 Schedule 1 of the Code of Practice shows the type of sign that should be present at the entrance, which is quite different to the sign for Strawberry Place East, which does not state new terms and conditions apply, also there is no Parking, IPC or BPA icons on the sign. The entrance sign did not inform the driver that new terms/conditions/charges applied so did not meet the minimum standard.

3.3 Page 10 Part 2 of The Code of Practice. - Signs 2.1 Where the basis of your parking charges is based in the law of contract that will usually be by way of the driver of a vehicle agreeing to contractual terms which are identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under this Code as this underpins the validity of any such charge.

3.4 The signage on and around the site was unlit, not prominent, in small font and did not display that new charges were in force.

3.5 Page 12 Section 9.1 of the Code of Practice - Changes in Operators Terms and Conditions. Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes. It is suggested that a grace period of one month is appropriate and that during this period you should identify vehicles that would have incurred charges under the new system where they wouldn’t have previously and inform the driver by notice affixed to the vehicle that in future they will incur a charge. Vehicles that return having previously had notice of these charges can then be ticketed in the normal way at your discretion. More guidance on signage is found in Schedule 1.

The claimant is asked to-

Provide proof that such notices were affixed to vehicles.

Provide examples of such notices, the number that were issued and the dates they were issued.

3.6 Schedule 1 – Signage, Page 28 of the Code of Practice states that “Where there is any change in the terms and conditions that materially affect the motorist then you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply.  The signage should be in addition to the signage ordinarily required.” No such described additional signs were in place.

The claimant is asked to --

Provide proof that additional signs were erected.

Provide examples of the signs displayed.

State how long they were in place and did they clearly state that that new terms and conditions/charges apply.

 

4. INCORRECT LOCATION ON PCN

4.1 The PCN states that the car was parked at Strawberry Place car park. Post Code NE1 4SF.The sign at the entrance to the car park states it is Strawberry Place East. Post Code NE1 4PF.

4.2 The defendant is in possession of 15 exhibits including, Land Registry Title Absolute, letters and plans from the previous owners of the car park, Newcastle City Council which prove that the car park named Strawberry Place was owned and managed by Newcastle City Council at the time of the incident and that Strawberry Place East car park was sold by Newcastle City Council to Fraise Properties Ltd in February 2015.

4.3 Strawberry Place car park is not where the car was parked at the time of the incident, as the PCN was incorrectly completed it is unenforceable.

 

5. UNREASONABLE BEHAVIOUR

5.1 The actual loss is £2.60, the cost of 2 hours parking (only a proportion of which would be the claimants as its assumed the landowner would be entitled to part of the hourly tariff). The £100.00 charge, is not proportional in any way to the loss suffered, it equates to the cost of over 3 days parking (76 hours) this is clearly an unenforceable contract term as VCS is seeking to impose a penalty charge in compensation that is vastly disproportionate to the hourly parking tariff of £1.30. The defendant volunteered to compensate VCS for their loss of income by sending a cheque for a sum in excess of the actual cost of parking in August 2015, in full and final settlement of this matter. They made the illogical decision to refuse and made it clear that they would not communicate with the defendant further on a possible solution.

 

Can the claimant provide a breakdown of the parking charge?

 

Can the claimant show how the parking charge can be a “genuine pre-estimate of loss”?

 

5.2 The claimant has previously employed Debt Recovery Plus, Zenith Collections and BW Legal to harass the defendant with letters demanding various amounts in excess of £100.00, i.e. £128.00, £160.00 with no breakdown of how the sum in excess of £100.00 was arrived at.

5.3 The wording of BW Legals’ letter 20 June 2016 states that they will “seek our client's instructions to commence legal proceedings against you in the form of a County Court Claim Form in the County Court.” It does not explain that they need to apply to the court first and does not clearly set out the steps required before enforcement action can take place. BW Legals’ letter dated 23 May 2016 also appears to be written in their favour of a successful County Court Judgement and misleadingly states, “In the event County Court Proceedings are issued you will be liable for Court fees, further solicitors’ costs and statutory interest. Should we successfully obtain a County Court Judgement (“CCJ”), this may have a detrimental effect on your creditworthiness and employability. Our client also reserves the right to commence enforcement proceedings against you for recovery of balance due.”

5.4 This is an attempt to intimidate the defendant into paying and it does not explain about the 14 days that the losing party has to make payment or arrange a payment plan, so would not result in a County Court Judgement (CCJ) or effect creditworthiness or employability. It is unfair to not clearly set out the action to be taken by BW Legal to apply to court and the process after a hearing if either party is successful, the majority of recipients of this type of letter will rely on BW Legal providing clear and concise information on the process, surely a legal obligation that this firm is ignoring for their financial gain. BW Legal were deliberately withholding relevant information and not allowing me to make an informed decision regarding this matter. They must realise the defendant has no legal training so the aforementioned omissions are a failure to tell the whole truth and amount to dishonesty and unreasonable behaviour.

5.5 Also, their letter dated 20 June 2016 states that due to the “Beavis Judgement” “This case eliminates the main defence you will have should the matter go to Court and will be relied upon, by our client, in any County Court proceedings”. This is a shameful, underhand, unprofessional and blatant attempt to pressurise a person with no legal training into thinking that due to the Beavis judgement that they have no defence, no hope of success in court and no option but to pay the claimant.

5.6 In addition, the letters state that “if your claim has already been processed through an Independent Appeal Service and IAS has dismissed your appeal, then it is likely that a County Court will come to a similar conclusion and your defence will be unsuccessful”. This again is an attempt to intimidate the defendant into paying. The IAS appeal did not allow the defendant to be present and to answer any questions that the panel might have, elaborate on any facts, so is in no way similar to the case being discussed in Court.

5.7 The above shows that legal professionals are cunningly attempting to mislead a Layman as to the law, which is unethical and unreasonable conduct.

 

6.FAILURE TO COMPLY WITH PRE-ACTION PROTOCOLS

6.1 No alternative dispute resolution has been offered by the claimant; the defendant however did offer a payment in excess of the actual loss, in August 2015, which the claimant refused. This offer is still available to the claimant in full and final settlement.

 

The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature


Date