DCBLegal/CCPC County Court

FineFighter

Thank you for your reply, I'm hoping someone may see and be able to offer an opinion
I will post to legalbeagles and ask the same question on peppipoo, where I also have a thread. 
This is all very nervewracking so I'm grateful to any of you kind souls willing to help
Though when it actually gets to court, I think that will be a new stage of (lonely) terror!

KeithP

FineFighter said:

So on this occasion, they've named "Capital Car Park Control" but this company no longer seems to exist, with ol' Terry running CCPC Ltd now. Given this company no longer exists, is it still grounds to argue that assignment of debt should have occurred to a company that does exist?

"Capital Car Park Control" never did exist as a company.
It was only ever a trading name of Terry Szmidt, an individual.

Now that there is a company called Capital Car Park Control Limited, clearly that is an entirely different legal entity and the transfer of anything, be it data or debt, needs to conform to the regulations that are in place.

Umkomaas

 Though when it actually gets to court, I think that will be a new stage of (lonely) terror!

Nah!  Watch this YouTube vid, originally posted here by forum regular @KeithP. 

https://www.youtube.com/watch?v=n93eoaxhzpU

FineFighter

KeithP said:

FineFighter said:

So on this occasion, they've named "Capital Car Park Control" but this company no longer seems to exist, with ol' Terry running CCPC Ltd now. Given this company no longer exists, is it still grounds to argue that assignment of debt should have occurred to a company that does exist?

"Capital Car Park Control" never did exist as a company.
It was only ever a trading name of Terry Szmidt, an individual.

Now that there is a company called Capital Car Park Control Limited, clearly that is an entirely different legal entity and the transfer of anything, be it data or debt, needs to conform to the regulations that are in place.

Thank you.
So presumably the debt would need to be assigned to a new company? 

It seems on the other thread with @Jsalomonuk that the fact the creditor was the recent CCPC Ltd was part of the grounds used, hence I was wondering whether the opposite would be true 

FineFighter

As well as Terry's company, there's some interesting points raised at peppipoo about whether one can form a contract between a non existent entity - ie Terry Szmidt t/a capital car park control
The NtK and signs around the parking areas all say Capital Carpark (one word) Control, which doesn't tally with what's on the claim form - Terry Szmidt T/A Capital Car Park Control.
There's a question around whether one can form a contract with a sole trader given his name doesn't appear anywhere on the signage. Also, whether he can bring a claim as a different company given the above - or would the lawyer just argue its a typo?

Castle

FineFighter said:

As well as Terry's company, there's some interesting points raised at peppipoo about whether one can form a contract between a non existent entity - ie Terry Szmidt t/a capital car park control
The NtK and signs around the parking areas all say Capital Carpark (one word) Control, which doesn't tally with what's on the claim form - Terry Szmidt T/A Capital Car Park Control.
There's a question around whether one can form a contract with a sole trader given his name doesn't appear anywhere on the signage. Also, whether he can bring a claim as a different company given the above - or would the lawyer just argue its a typo?

Many of which have already been made in the responses on 3rd and 4th February on this thread.

FineFighter

Castle said:

Many of which have already been made in the responses on 3rd and 4th February on this thread.

Many thanks for your response. I've gone back through the thread and noticed that you had previously linked to the companies act, which I will have a look at and see whether there is anything usable there. Sorry to drag this up again!
https://www.legislation.gov.uk/ukpga/2006/46/part/41/chapter/2

FineFighter said:

The NtK and signs around the parking areas all say Capital Carpark (one word) Control, which doesn't tally with what's on the claim form - Terry Szmidt T/A Capital Car Park Control.
There's a question around whether one can form a contract with a sole trader given his name doesn't appear anywhere on the signage. So can he bring a claim as a different company given the above - or would the lawyer just argue its a typo?

 I was more wondering about this - even the company names seem to be slightly different on the signs and NtK, vs the court claim. Whether they would simply argue this is a typo or something worth also raising?

D_P_Dance

Surely, even if it is a typo, it presents  the PPC with a problem.  I would  raise it .  Everything which causes them extra work is to be encouraged.

FineFighter

Hi all,
I've prepared the first draft of my defence after several days of reading through cases and trying to pick up relevant points of argument. Its obviously not a great legal document and will probably need lots of tweaking.
@Coupon-mad I've added the cause of action estoppel from a previous thread but not sure whether this is in too much detail for this stage of the claim. Similarly with point 2, this feels like I've written too much. 

 I would be hugely grateful for any advice or tips you can offer.

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. Given these invoices were issued four years ago, the Defendant cannot recall these events nor who was driving at the time.  The defendant first recalls hearing of these offences some months letter with a barrage of threatening letters from debt collection agencies threatening court action which left the defendant feeling harassed and intimidated.

3.        The invoices in question are for two separate streets, Phoenix Avenue and East Parkside. In both of these areas, the signage is poor, not reaching the standards of visibility necessary to form a contract.

In Phoenix Avenue, there is no entrance sign, contrary to BPA code of practice 18.2.

In East Parkside, there is no signage in the bay itself where the car was parked, hindering the drivers ability to see this when parked. There is a sign on entry to the bay in question, however, this is obscured by a speed limit sign placed in close proximity, as well as overgrown foliage.

Both of these locations have been challenged independently at the Parking on Private Land Appeals (PoPLA) service in January 2017 and May 2018 (PoPLA reference 1213286013 and 1210858013 respectively), both of which were upheld by PoPLA and the invoice cancelled, on the basis of signage not clearly conforming to British Parking Association (BPA) Code of Practice Section 18.1 and 18.3.

4.         There is a clarity with regards to who is bringing the claim, and to whom the alleged contract is made, with these entities being materially different. The claimant is named as Terry Szmidt T/A Capital Car Park Control, however the signage in the area refers only to Capital Carpark Control, which is different to the trade name given above, and there is no mention of the sole trader on the signage. This clearly disadvantages the defendant in knowing with whom the alleged contract is, and calls into question the validity of any contract allegedly established.

5.         The Notice to Keeper from the Claimant was well outside the 56 days stipulated in law by the Protection of Freedom Act (2012) and fails to comply with the strict requirements of the Protection of Freedoms Act 2012, Schedule 4, including paragraph 9 (2) (h). Thus the Claimant is incapable of transferring liability to the keeper.

6.         The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

7.         The Claimant has issued  a further claim, number XXXXXXXX, against the Defendant the same date, and with substantially identical particulars, for the same cause of action, despite this being flagged by the defendant at the Letter before Claim stage of the litigation and seemingly noted in further correspondence with the Claimant’s legal counsel.

The issuing of two separate claims, by the same Claimant and for essentially the same cause of action, is an abuse of the civil litigation process. The long-established case law in Henderson -v- Henderson [1843] 67 ER 313, and more recent authorities, establishes the principle that when a matter becomes the subject of litigation, the parties are required to advance their whole case. The Court is invited to consolidate the two claims to be determined together, and to apply appropriate sanctions against the Claimant.

In Arnold v National Westminster Bank plc [1991] 3 All ER 41 the court noted that cause of action estoppel “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.”

In Henderson -v- Henderson [1843] 67 ER 313 the court noted the following:
(i) when a matter becomes subject to litigation, the parties are required to advance their whole case;
(ii) the Court will not permit the same parties to re-open the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, or error;
(iii) this bar applies to all matters, both those on which the Court determined in the original litigation and those which would have been advanced if the party in question had exercised ''reasonable diligence''.

By the Claimant's negligence or by intent, filing two claims, allowing them to continue to three separate hearings and choosing not to pay the appropriate court fee to apply for leave to consolidate them and amend the particulars into one claim, permits of no reasonable explanation.  The Court and myself have had to make preparations for two separate court hearings, causing unnecessary cost in time and money, and specifically in terms of duplicating the paperwork, intimidation and distress for me as a Litigant in Person.

By filing the first claim and failing to advance their whole case, any cause of action was immediately extinguished for any other similar fact parking charges against myself as Defendant.   The courts may estop a second/third claim where the cause of action is substantially the same.  I invite the court to vacate the second and third hearings and summarily dismiss those claims under the grounds of cause of action estoppel.  In the alternative, the Court is invited to consolidate the claims to be determined together, and to apply appropriate sanctions against the Claimant.

 

[END OF MY ADAPTED PARAGRAPHS BASED ON 2 & 3 FROM THE COUPON MAD TEMPLATE]

FineFighter

Bumping this to get some feedback on my defence please