Ccbc claim help needed for defence.

Sasanova

Ok thanks I think you are right it might complicate matters I will omit that section.
 I appreciate your pointers.

D_P_Dance

If this is  a double dip read these

https://forums.moneysavingexpert.com/discussion/5550336/double-dip-parking-list-of-cases

Sasanova

Ok I have rectified the points you made, is this one ok now to submit?

1-The Defendant denies that the claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into by conduct or otherwise whereby it was agreed to pay a parking charge and it is denied that this claimant (understood to have a bare license as managers) has to sue, nor to form contracts in their own name at the location.
2-It is admitted that Defendant was the registered keeper of the vehicle in question but liability is denied.
3-I believe there was no signs at the entrance, smaller sign on the wall of the actual building at the time in question and added at a later date since McDonald had just reopened after closing for a month for renovations and obvious now appointing a private parking operator which was unknown to regular customers such as the Defendant. Even the present signage are not legible from inside the car while driving due to the size of the font used., Claimant must give motorists to be able to read through these terms before they can be deemed acceptable.

4-The particulars of claim set out an incoherent statement of case and quantum has been enhanced in excess of any sum hidden in small print on the signage that the claimant maybe relying upon. Claiming costs/damages on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5,14,3.
That is the official Government guidance on the consumer right Act 2015 legislation which must be considered, given the duty in s71. The Defendant avers that the CRA2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6,10,14 and 18 in Sch2, NB: this is different from the UTCCRs considered by the system court, in that there is now a requirement for contract terms and notices to be unfair
5-It is denied that the exaggerated sum sought is recoverable. The Defendant’s position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98,100,193,198) ParkingEye Ltd v Beavis (2015)UKSC67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd Chd(2011)EWHC4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135. Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper. At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge would appear to be penal and unrecoverable.
6-Even if the claimant had shown the global sum claimed in largest font on clear and prominent signs which is denied they are attempting double recovery of the cost of their standard automated letter chain. It is denied that the claimant have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.
7-The claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs not even if letters were issued by unregulated debt recovery third parties.
8-The claimant’s signs 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 Sch2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.
9-It should be noted that the new statutory code of practice on 7/02/2022 will introduce a cap of £50 on private parking charges and will ban additional debt recovery charges also material change notices where there is any material change to any pre existing terms and conditions that would not be immediately apparent to a driver entering controlled land that is or has been for public parking. The parking operator must place additional (temporary) notices at the site entrance for a period of not less than 4 months from the date of change making it clear that new terms and conditions/ charges apply, such that regular visitors who might be familiar with the old terms do not inadvertently incur parking charges.  Examples of material changes can include introduction of parking enforcement where none has previously applied, or reductions in the time limit within which free parking is available, the fact that a change has been made is clearly signalled to drivers on entering the land. 
Although the new COP not yet in effect this highlights the unfairness and predatory nature of the charges added.
10-The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.
I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court maybe brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

26/02/2022
Sent from my iPhon

Coupon-mad

You still have 'l' - change it to the Defendant as I advised.  Add an 's' to McDonald's.

Sasanova

Cheers I’m really grateful for your kind advice.

1505grandad

Para 4  -  "NB: this is different from the UTCCRs considered by the system court, in that there is now a requirement for contract terms and notices to be unfair"

You have not copied that correctly.

Sasanova

Hi there it's been a couple of months since my last visit here since I've been out of the country now I'm back a letter waiting for me Notice of Proposed Allocation to the Small Claims Track.
It says I must complete the small claims Directions Questionnaire (Form N180) and file it with the court office by 16/5/22 also it's kind of advised to go down the mediation route!!
Any advice as to what sensible steps to take next please. 

KeithP

Sasanova said:

Any advice as to what sensible steps to take next please. 

Yes, plenty, and you have already read it once. 

Go back to that list you were following when you filed your Defence.

This time read items 7,8,9 and 10 on that list. They answer all your questions.

Sasanova

Thank you KeithP

Sasanova

I still haven't sent in my N180 form only when I read the thread it says no to mediation but is that not going to bias the case in the eyes of the judge thinking I have not been prepared to go down that route?