defence for pcn from 5 years ago. please provide feedback.

marjoria

Hi all, 

I recieved a county court claim dated 9th and just sent in my acknowledgement of service form. The pcn is dated 2018 and they say I agreed to pay. Since I discovered this forum, i have been just submitting the templates and most would just stop chasing me once they saw the letter. This pcn is a  while ago but I can say I had never agreed to pay. 

I will see the defence sticky post but how do I respond. I would do a SAR but that would take time. I dont want to outright deny that I have never agreed but at the same time if they have anything I dont know what to say. 

I want to know to what extent can they chase something from early 2018. Its over 5 years ago.  

Le_Kirk

When you write "sent in my acknowledgement of service form" how did you do this?  Surely not by post!  It is done by logging in to your MCOL account using the info on your N1 claim form.  You should know this as you have done it before here: -
https://forums.moneysavingexpert.com/discussion/comment/78656014#Comment_78656014
Is it a different issue?  What you do now is construct your defence using the template defence and the information contained in that thread.  Note it has been updated since your last visit here.

KeithP

The allegation that you agreed to pay is that by parking the driver agreed to the terms of the contract.

Those contract terms are the terms on the signs.

Almost certainly there is a term on the signs stating something like "if the driver doesn't park in accordance with the rules then he agrees to pay £nn within 28 days...".

They, or anyone else, has up to six years to chase a debt through the courts in England and Wales.

With a Claim Issue Date of 9th August, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 11th September 2023 to file your Defence.

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

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

marjoria

I completed the last part on one of the pages and ticked that I will defend the claim. Yes I sent it in by first class post. I still have time, so I will submit another online. The letter was dated 9 and said the day of service is considered 5 days after that so if i submit today it i will still be in time right?

Le_Kirk said:

When you write "sent in my acknowledgement of service form" how did you do this?  Surely not by post!  It is done by logging in to your MCOL account using the info on your N1 claim form.  You should know this as you have done it before here: -
https://forums.moneysavingexpert.com/discussion/comment/78656014#Comment_78656014
Is it a different issue?  What you do now is construct your defence using the template defence and the information contained in that thread.  Note it has been updated since your last visit here

marjoria

  I am trying to submit an acknowldge of service online too but cant find where to. I have searched but only finding stuff for claimants. anyone can give me a direct link. thanks. 

marjoria

just sumitted another online incase the post one does not count. I will move to prepare my defence now. If my claim is dated 9 and considered delivered 5 days later and I submitted another aos what is my new deadline date. I probably wont leave it till then but want to know.  I note the advice above about seeing the website as read only. does that mean I submit my defence by post or.... 

I will refer back to the sticky for the general but what do I say about the agreeing aspect and how long it has taken them to chase this. even if they have 6 years to chase why have they chose  not to chase this sooner. further, what do i get to see of their evidence if at all. 

Coupon-mad

marjoria said:

  I am trying to submit an acknowldge of service online too but cant find where to. I have searched but only finding stuff for claimants. anyone can give me a direct link. thanks. 

But this is in the NEWBIES thread that KeithP directed you to in his reply advising you exactly what to do and by when. He even gave you a link.

Don't do a SAR.  I have no idea why people with claims read that bit (that's for people with a Letter Before Claim).

That's not what the NEWBIES thread says to do at court claim defence stage.  This is very easy.  We even have a Template Defence.

KeithP

marjoria said:

I note the advice above about seeing the website as read only. does that mean I submit my defence by post or.... 

Whilst noting that the MCOL website should now be treated as read only, did you not also notice the words by email in this sentence in the same post?...

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

marjoria

hello all,

please provide feedback for my defence, i am going to send it in before end of business day today. I have used the template and only put in my part in point 3 which i have put in bold. i have kept eveything else as it is, i will sign it digitally and put in the relevant information in the top part in terms of claim number/ref and names later. 

IN THE COUNTY COURT Claim No.: xxxxxx Between
(Claimant) - and - Defendant (Defendant) _________________ DEFENCE 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. Further, it is denied that this Claimant (understood to have a bare lic+ence as agents) 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 boilerplate text in the Particulars of Claim ('the POC'). The facts known to the Defendant: 2. The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC is devoid of any detail and even lacks specific breach allegation(s), making it very difficult to respond. However, it is admitted that the Defendant was the driver of the vehicle. 3. The Defendant wrote to the Claimant when this matter first arose, requesting information as to the validity of their claims. The Defendant can confirm that there was no agreement nor arrangement in place for payment/s. It is imperative to highlight that the Claimants current legal action appears to be akin to a “fishing

expedition”.Wherein they seem to be testing the waters to see if their claim gains any traction. This is especially evident considering their prolonged inactivity since the alleged events in early 2018 and their repeated failure to provide requested information during that time. Thus, the lack of response and inaction on the Claimant’s part for more than five years raises questions regarding the timeliness and credibility of their current pursuit. 4. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be: (i). a strong 'legitimate interest' extending beyond mere compensation for loss, and
(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.
5. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished. 6. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap). It is denied that any 'Debt Fees' or damages were actually paid or incurred by this Claimant, who is put to strict proof of: (i). the alleged breach, which is not pleaded in the POC and requires further and better particulars, and (ii). a breakdown of how they arrived at the enhanced sum in the POC, including how interest was calculated, which looks to be improperly applied on the entire inflated sum, as if that was all overdue on the day of the alleged event. 7. The Defendant avers that this claim is unfair and inflated and it is denied that any sum is due, whether in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it. 8. This case is a classic example where adding exaggerated fees funds the 'numbers game' of bulk litigation of weak and/or archive parking cases. MoJ statistics of bulk litigators reveal that there are several hundred thousand parking claims per annum, with some 90% causing default CCJs totalling hundreds of millions of pounds. No checks and balances are likely to have been made to ensure facts, merit or a proper cause of action (given away by the woefully inadequate POC). 9. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022, here: https://www.gov.uk/government/publications/private-parking-code-of-practice. The Ministerial Foreword is damning: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 10. Despite legal challenges delaying the Code - marked as temporarily withdrawn - it is thankfully 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis exposes what they say are industry-gleaned facts about supposed 'fees'. The analysis is found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf 11. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of what the former calls debt recovery or 'enforcement' ( = pre-action) stage totals a mere £8.42 per case (not per PCN). 12. With that in mind, it is clear that the extant claim has been enhanced by an extreme sum, believed to be routinely retained by the litigating legal team, not the Claimant. In this Claim it is additional to the intended 'legal representatives fees' cap set within small claims track rules. This conduct has been examined and found - including in a detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery'. The Defendant takes that position. 13. The draft IA shows that the intimidating letter-chains actually cost 'eight times less' than the seemingly 'price-fixed' +£70 per PCN. This causes consumer harm in the form of almost half a million wrongly-enhanced CCJs each year, that District Judges are powerless to prevent. This false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who suddenly aligned in 2021 re allowing +£70, each led by a Board of the very parking operators and debt firms who stood to gain from it. 14. It is denied that the purported damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis. Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of template letters and 'would appear to be penal'. 15. This Claimant has not incurred costs. A parking charge model already includes what the Supreme Court called an 'automated letter-chain' and it is a model that generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and the £85 'PCN' was held to more than cover the minor costs of the operation. The DLUHC's IA confirms that the parking charge more than covers the minor costs of the letters (NB: the debt collectors do not charge anything in failed collection cases). 16. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged by the parking industry. The 2022 DLUHC Code will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight. In a clear steer for the Courts and for the avoidance of doubt: the DLUHC say they are addressing 'market failure'. 17. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper. Further, the Claimant is put to strict proof of POFA compliance. 18. The Defendant avers that the DLUHC's analysis now overrides plainly wrong assumptions made by Circuit Judges steered by Counsel in astonishingly weak appeal cases that the parking industry engineered their way: Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy. Far from being persuasive, regrettably these one-sided appeals cherry-picked litigant-in-person consumers without the wherewithal to appeal. Incorrect presumptions were made in every case; and there were major evidence discrepancies (e.g. in Wilshaw, where the Judge was also oblivious to the DVLA KADOE requirement for landowner authority). One Judge inexplicably sought out for himself and quoted from the wrong Code of Practice (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was wrongly aligned with the agreed contract in Beavis. 19. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant failed to erect well-placed, large and readable signs on a par with the yellow & black warnings seen in Beavis, and unlike the signage requirements set out in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA'). CRA breaches 20. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf 21. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications intended to be read by consumers. Signage must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear. 22. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith). ParkingEye v Beavis is distinguished 23. Unlike in Beavis, the penalty rule remains engaged, not least due to the unconscionable added 'Fee'. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs. 24. The Supreme Court held that deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps'). In the present case, the Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include: (i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and (ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2, both leading authorities that a clause cannot be incorporated after a contract has been concluded; and (iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space''. 25. Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t." Lack of standing or landowner authority, and lack of ADR 26. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate. 27. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (2020 Annual Report). This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should lead Judges to know that a fair appeal was never on offer. Conclusion 28. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm. The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it. The claim is entirely without merit and the POC embarrassing. The Defendant believes that it is in the public interest that claims like this should be struck out. 29. In the matter of costs, the Defendant seeks: (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and (b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 30. Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to claims allocated 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))." Statement of Truth I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be 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. Signature: Date:

1505grandad

" I have used the template and only put in my part in point 3 which i have put in bold."

I have not read all of it but are you using the Template D?  -  for instance a quick skim (we don't usually need to see all the paras only added/amended) the heading "Exaggerated Claim and 'market failure' currently being addressed by UK Government" is not present.

Coupon-mad

This isn't needed:

The Defendant can confirm that there was no agreement nor arrangement in place for payment/s.

Para 3 should tell the Judge some facts about the location and why the car was there, and what went wrong (and whether the Defendant was driving).

It can't be right to criticise the C for filing a claim that is devoid of facts, if you do the same thing in your defence!