CCJ set-aside. Now Small Claims & Draft Defence.

Khayman

OK actually just managed to get through to CNBC and they've sent me the POC as follows:

Judgment amount: 277.00

Particulars of claim: THE CLAIM IS FOR A BREACH OF CONTRACT FOR BREACHING THE TERMS AND CONDITIONS SET ON PRIVATE LAND. THE DEFENDANT'S VEHICLE, XXXXXXX, WAS IDENTIFIED IN THE LEEDS BRADFORDAIRPORT ROADWAYS ON THE 28/04/2023 IN BREACH OF THE ADVERTISED TERMS AND CONDITIONS; NAMELY STOPPING IN A ZONE WHERE STOPPING IS PROHIBITED. AT ALL MATERIAL TIMES THE DEFENDANT WAS THE REGISTERED KEEPER AND/OR DRIVER. THE TERMS AND CONDITIONS UPON ENTERING PRIVATE LAND WERE CLEARLY DISPLAYED AT THE ENTRANCE AND IN PROMINENT LOCATIONS. THE SIGN WAS THE OFFER AND THE ACT OF ENTERING PRIVATE LAND WAS THE ACCEPTANCE OF THE OFFER HEREBY ENTERING INTO A CONTRACT BY CONDUCT. THE SIGNS SPECIFICALLY DETAIL THE TERMS AND CONDITIONS AND THE CONSEQUENCES OF FAILURE TO COMPLY, NAMELY A PARKING CHARGE NOTICE WILL BE ISSUED, AND THE DEFENDANT HAS FAILED TO SETTLE THE OUTSTANDING LIABILITY. THE CLAIMANT SEEKS THE RECOVERY OF THE PARKING CHARGE NOTICE, CONTRACTUAL COSTS AND INTEREST.

Still nothing about the breakdown of costs though, so must admit I was expecting a little bit more. It's not even an attached document or form. Still, I imagine this wording is pretty standard and the template defence (as well as Coupon-Mad's additional paragraphs) deals with this, but I'll go through it all this evening after work.

Anything there jump out at anyone?

Coupon-mad

Nope, that's standard.

£277 is broken down thusly:

£100 PCN
£70 fake 'debt recovery fee'
£35 court claim filing fee
£50 capped legal fees allowed in these cases
(£22 default judgment fee? Could be interest).

LDast

Those PoC state that the claim is for a breach of contract. A fundamental principle of contract law is that a contract requires offer, acceptance, consideration and intention to create legal relations. The signage stating "stopping is prohibited" is not an offer but a prohibition. An offer invites someone to do something, whereas a prohibition tells someone not to do something. Therefore, a contract cannot be formed based on prohibitive signage. Merely entering the private land under these circumstances does not constitute acceptance of any contract, especially if the signage is prohibitive rather than invitational.

The PoC must detail the specific terms of the contract that were allegedly breached. The claimant has not provided sufficient detail to support the existence and breach of such specific terms.

The claimant has not definitively proven that the defendant was the driver at the time of the alleged breach.

The parking charge is a penalty rather than a genuine pre-estimate of loss, which is not enforceable under contract law.

Khayman

Thanks all.

I've read through the draft defence and only updated one or two things (changing 'PCN' to 'CN' where relevant etc.).
Here are my updated first few paragraphs based on now having a copy of the POC:

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. On the basis of the Particulars of Claim (POC), which was not provided by the Claimant but instead obtained by the Defendant from the Civil National Business Centre (CNBC), the Defendant is unable to understand with certainty what case, allegation(s) and what heads of cost are being pursued. The Defendant has also been furnished with an inaccurate copy of the alleged contract (sign) as part of the Claimant’s Witness Statement. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper but categorically NOT the driver as they were a passenger being dropped off at the Airport.

3. The Defendant confirms that the vehicle was used by the driver to drop off at Leeds Bradford Airport on the date of the alleged breach of contract. The Defendant denies being the driver and declines to name the driver which is not an obligation, as confirmed by appeal cases cited below.

4. It is noted that the POC states that "At all material times the Defendant was the registered keeper and/or driver". The Defendant categorically denies being the driver and the Claimant is put to strict proof otherwise. As the alleged contravention occurred on land under statutory control (not relevant land as defined by the Protection of Freedoms Act 2012 ('the POFA') and a place where airport bylaws and/or the Traffic Management Act applies, the registered keeper cannot be held liable.

I've also updated the following paragraph as it specified 'parking' whereas VCS's charge in my case is about 'stopping':

8.  Further and in the alternative: a binding consumer contract in UK law must comprise some key elements, including: offer, acceptance and consideration. The sparsely placed signage (researched online; not correctly supplied by the Claimant) makes no offer of stopping; it is prohibiting, therefore there can have been no consideration flowing between the parties and no acceptance of 'stopping' terms by the driver. The Defendant believes that the signage at the site fails to create any form of contractual meeting of minds and therefore no possibility of a breach under contract law. The correct remedy would lie with the Airport to invoke the terms of the byelaws which provide for a penalty, or for a Penalty to be issued under relevant road traffic enactments (given that this meets the definition of public highway) not for a third party to profit from dressing it up as if it were a contract.

Is this ok do you think?

Having read through it all I want to say another huge thank you to everyone involved in putting these templates and such together. It's such an impressive document and makes me feel a lot better about the whole thing, so thank you!

Finally, can I ask with regards to sending my defence in. The court order states: The Defendant must file and serve his defence by 9th July 2024.

Is printing, signing, scanning, and emailing (presumably to both the court and VCS) both filing and serving the defence? Or do I need to do something more?

Coupon-mad

"as confirmed by appeal cases cited below."

I don't think you've cited any?

Those would be VCS v Edward and their sister firm's case, Excel v Smith.  Both on appeal and both court transcripts are findable on this forum, with wording about them already written by Defendants.

Khayman

They're in Paragraph 7. i and ii as per your reply in another thread (linked in a previous comment of mine in this thread)

I've only bothered pasting what I've changed, so the rest is as per your suggestions in the other thread, followed by the template.

Happy to post the whole thing if you'd rather, for anyone who wants to scan through it.

Coupon-mad

Ah - good!  

Khayman

Khayman said:

Finally, can I ask with regards to sending my defence in. The court order states: The Defendant must file and serve his defence by 9th July 2024.

Is printing, signing, scanning, and emailing (presumably to both the court and VCS) both filing and serving the defence? Or do I need to do something more?

Just wondering if anyone is able to confirm this for me?

fair2everyone

I believe filing means with the court and serving means with the claimant (other parties).  That’s my understanding anyway. 

KeithP

Khayman said: 

The court order states: The Defendant must file and serve his defence by 9th July 2024.

It means that the Defence must be filed with the court and served on the Claimant by 9th July.

The phrase 'file and serve' is shorthand for 'file with the court and serve on the other party'.
The method of doing so has not been specified.