Defence Letter Advice - Defendant Named is Not the Driver & Advice Please

jedimorrisdancer

Hi, 

I have received a County Court Business Centre Claim Form dated 21/06/2023. For a parking charge violation date of 16/12/2021 the claimant is Civil Enforcement Limited. I filed my AOS on 5/07/2023 which makes my final date for emailing my defence the 24th July 2023.

The carpark is a small lot behind a row of shops on the main street in our village. It has a very confusing layout but does have signage - although not lit. The alleged violation took place at 8.34pm in December so would have been pitch black and there is hardly any lighting in that area. The signs are not lit and the shops in question were closed - it is a Pet Shop that closes at 5.30pm every day.

We pulled over on the way home from a funeral after a very long drive (London to Manchester) as I had cramp and suffer from a leg condition that makes it very painful. I needed to stretch it immediately. Total time was 17 minutes. We were 5 minutes from our house there is nothing there and no reason why I would want to park up at that time of night.

The next issue is that the claim has been issued in my wife’s name as she is the registered keeper - however I was driving at the time - we have a third witness to that as my mother in law was in the car with us.

Before I run through the first draft of my defence I would appreciate some guidance regarding the most important facts to emphasise?

Also, how do I approach the fact that the defendant named in the document is wrong?

Many thanks.

jedimorrisdancer

Hi, any advice would be gratefully received?

jedimorrisdancer

I have had a stab at paragraphs 2 and 3 below -

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle but not the driver.

3. After a long car journey the driver suffered painful muscle cramping which required a few minutes standing upright to stretch out. The driver turned off the main road and checked briefly to ensure that there was no private car parking signage. At the time the driver believed that they had parked on a cobbled street behind a row of shops. On subsequent checking the signage for the car park was unlit. The alleged event occurred at 8.17pm on a December evening. At that time the backstreet was in complete darkness and none of the shops were open. The driver waited a few minutes to ensure that they were safe to continue driving and exited the car park.

Do I need to add any more detail at this point?

Coupon-mad

Also, how do I approach the fact that the defendant named in the document is wrong?

You (the driver) can't, because:

(a) it isn't the wrong Defendant, and

(b) you can't defend it.  Only the named Defendant can.  You can help her compose it and research it here on the forum (you can do the legwork) but this is her defence, as registered keeper.

If she got the PCN in 2021 (and loads of letters since?) why didn't she just respond and name you as the driver while she could transfer liability, which was legally open to the keeper at any time, up until this June (any time before court action).  

Did she ignore it all?  No appeal?  Too late to transfer liability now.  Still, we win 99% of cases and there is no CCJ risk.  She may as well defend because the £sum is exaggerated.

I suggest she uses the defence by @Johny86 because it has a useful extra paragraph section 4-11 that she should include.

Your wife's draft paras 2 & 3 look fine except she should say in 2 that the driver was the Defendant's husband (but do not name you).

And in 3 I would not call it a 'car park' if it didn't look like one.  Call it a backstreet that looked like public highway.

jedimorrisdancer

Thanks for that @Coupon-mad.

I am helping her put the defence letter together as you suggest. If it comes to an actual hearing am I able to support her in that or does she have to respond personally? Can I advocate on her behalf?

Coupon-mad

You can be her lay representative as long as she attends with you. Search the forum.

KeithP

jedimorrisdancer said:

If it comes to an actual hearing am I able to support her in that or does she have to respond personally? Can I advocate on her behalf?

Yes you can, but the Defendant must be present too.

Just turn up at the hearing with the Defendant and tell the usher that you will be acting as a Lay Representative for the Defendant.
They should have no problem with this, but take a printed copy of The Lay Representatives (Rights of Audience) Order 1999.
A simple one page document.

jedimorrisdancer

That is fantastic help @Coupon-mad and @KeithP thank you.

jedimorrisdancer

Apologies I know that we are not supposed to copy the entire defence letter but I was a bit confused about the change from the newbie thread format to the one adopted by @Johny86  - does this look correct - (final submission tomorrow 24th July)

jedimorrisdancer

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. 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 a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle but the driver was the Defendant's husband.

3. After a long car journey the driver suffered painful muscle cramping which required a few minutes standing upright to stretch out. The driver turned off the main road and believed that they had parked on a cobbled street behind a row of shops. The backstreet looked like a public highway. The alleged event occurred at 8.17pm on a December evening. At that time the backstreet was in complete darkness and none of the shops were open. On a recent visit to the area it was observed that the signage was not lit, The driver waited a few minutes to ensure that they were safe to continue driving and exited the backstreet.

4. The Claim Form issued on the 21st June 2023 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited as the Claimant’s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

5. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle DE60 YHR when it was parked at Hills Pet Shop.

5.1. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

6. Further and in the alternative, it is denied that 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.

7. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate 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.

No standing or landowner authority

8. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices under defined parameters and to form/offer contracts in their own name, and to pursue payment by means of litigation.

No legitimate interest or commercial justification

9. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing the Defendant for a hundredfold penalty, for the ordinary and reasonable conduct explained in this defence.

9.1. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

Unconscionable sum claimed - double recovery - abuse of process

10. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.

10.1 In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector and interest, which the Defendant submits have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than two times this sum. The Defendant avers that this inflation of the considered amount is a gross abuse of process.

11. The Claimant is a serial offender in this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. According to Ladak v DRC LocumsUKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

11.1. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.

12. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.

13. It is an unfair burden and a complete waste of time for the Defendant to spend hours on their defence against a vexatious litigant who then discontinues. Research shows that this Claimant is regularly observed as being in pursuit of default judgments to use as an aggressive form of debt collection, with no intention of paying for or attending the majority of hearings.

14. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name

Signature

Date:

Coupon-mad

I've no idea where paragraph 4 onwards has come from? It's ancient and not right or relevant.  It is neither the Template Defence nor the one by @Johny86 from February.