Received Claim Form but not a PCN

tiger_stripes

Hi all, I was hoping to send my DQ today but have a couple of Q's.
I have looked on threads for answers etc. And I feel like I'm missing it as I keep going round in circles..
The DQ asks which court would I like the hearing and why? I have noted my local court and put "This is the defendants local Court. The defendant is an individual" is that ok?
Also, are there any courts I should avoid? Should I select Manchester instead of my town Court?

Dates I cannot attend a hearing within the next 9 months - if I don't have anything booked yet, does that mean I won't be able to book a holiday until I have been given a court date?

Have I been advised of my right to give evidence in either Welsh or English? - am I ok to answer No? Or shall I leave it blank? Because I don't remember reading anywhere on my paperwork regarding this..

Coupon-mad

Yes just put "This is the defendants local Court. The defendant is an individual".

If you book a holiday tell the LOCAL allocated court immediately by email and instruct them that these are 'unavailable' dates for a hearing.

Ignore the Q about Welsh!

I assume you've re-read the first 12 steps in the Template Defence, so you know where to email the DQ and know that Mediation is now compulsory (and what to say and not to say)?

tiger_stripes

Thank you @Coupon-mad.

Yes, I email it to DQ.CNBC@justice.gov.uk and to the Claimants legal rep , correct?
Should I receive confirmation that they have received my email?

I have seen that Mediation is now compulsory, but I still need to look at the info of what to say and not to say

tiger_stripes

Hi all, 

I've only just recently received the date of the hearing and the deadline to submit my WS/Evidence.
Deadline to submit my WS & Evidence is early January! The hearing is 3 months after that.
Annoyingly, I haven't received the claimant's WS/Evidence yet, so I can still only work off what the POC states. I don't have confidence in the postal system around this time of year.
I have started drafting my WS by taking info from my defence; I've taken some photos; and I'll be looking at others' WS to see how they've structured theirs. 

Le_Kirk

tiger_stripes said:

I don't have confidence in the postal system around this time of year.
I have started drafting my WS by taking info from my defence; I've taken some photos; and I'll be looking at others' WS to see how they've structured theirs. 

E-mail is the preferred method these days. Your witness statement backs up and supports what you put in your defence.  Some recent exemplars of WS are: -

@Defendant911

@Harry77

@Milliered

Coupon-mad

tiger_stripes said:

Preliminary matter: The claim should be struck out

2. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal). The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction. By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

3. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4

The facts known to the Defendant:

4. 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 appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper and driver.

 

5. It is denied that the Claimant can pursue the registered keeper pursuant to the POFA 2012 because this Claimant's consumer notices fail to comply with Schedule 4 and the sum pursued exceeds the 'maximum sum' that Act sets.

5.1. The Claim should be struck out on the basis that it contravenes Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012 (PoFA).

5.2. PoFA clearly stipulates that a creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking charges as they stood when the notice to the driver was issued. The original Parking Charge Notice (PCN) issued by the claimant was for £100. The claimant's current claim is for £170, which exceeds the amount of the unpaid parking charges as stated in the original notice. The Claimant’s attempt to claim an unlawful amount constitutes an abuse of process and should not be allowed to proceed. The Defendant respectfully request the allocating judge to dismiss the claim on the basis of the Claimant’s contravention of Schedule 4, Paragraph 4(5) of PoFA and thereby CPR 1.1, CPR 3.4(2)(a) and (b) and CPR 27.14 and to award costs to the Defendant for having to defend against this improper claim.

5.3. As the claim (fully disputed in any event) should only be for the amount of £100 as stated on the original PCN, the interest calculated should only be on that amount. By also calculating interest on the added £70 "damages" which are, in themselves, an abuse of process, the claimant has not only acted unreasonably but also abused the courts process and breached the following CPRs:

CPR Breaches and Abuse of Process:

·        CPR 1.1 - The Overriding Objective:

·        The claim is not being dealt with justly or proportionately. The excessive amount claimed puts the defendant at a disadvantage, increases unnecessary costs, and is disproportionate to the original charge.

·        CPR 3.4 - Power to Strike Out:

·        CPR 3.4(2)(a): The claim for £170 has no reasonable grounds, as it exceeds the lawful amount stipulated by PoFA 4(5).

·        CPR 3.4(2)(b): The claim represents an abuse of the court’s process by attempting to claim an amount not legally recoverable, thus obstructing the just disposal of proceedings.

·        CPR 27.14 - Costs on the Small Claims Track:

·        CPR 27.14(2)(g): The claimant’s behaviour in pursuing an excessive and unlawful amount is unreasonable, warranting the claim to be struck out (and costs awarded to the Defendant, if incurred).

6. It is further denied that any breach of any (prominently advertised) term occurred and the Claimant is put to strict proof. The allegation is incoherent, to say the least. The Claim fails to unambiguously specify the alleged breach and relies instead on a wholly inappropriate phrase for POC: 'either/or'.  

6.1. No sum of money relating to the parking tariff is specified in the POC but the Claimant knows that there are no parking charges outstanding. This relates to an unremarkable date in 2023 (regarding a car park used daily around that time). The Defendant - and the court - is unable to understand whether the allegation is 'failure to pay (at all)'? Or maybe it is alleging: 'failure to pay in full'? Perhaps: 'failure to pay for the correct VRM (a keypad error)'? Could it be 'failure to display a ticket'? Or is it the "either/or" alternative: 'failure to pay in time' (no time has been specified). All are denied.

7.  The Defendant knows and will say and can evidence that they paid for their parking on this date, as they did every time they visited this site. The operator obtained the payment it sought for the hours parked; there was no loss and this inflated charge is an unrecoverable penalty.


No legitimate interest (the ParkingEye v Beavis case is fully distinguished)

8.  There is no legitimate interest in pursuing a Defendant who paid in full, and this Claimant knows this full well. Last week in a judgment dated 10th June 2024, His Honour Judge Pema (sitting at the County Court at Bradford) refused Excel Parking Services Ltd's attempt to appeal the decision in Case no K4QZ4Y21 which the Defendant had won in similar circumstances to the extant claim, which involves the same Claimant

Insert the remaining template (re-numbered)

Just reminding everyone that your defence included the above decision by HHJ Pema at Bradford (in June) to refuse Excel leave to appeal an exact same case found against them, where you were the Defendant.

I suggest you email Excel a drop hands offer... i.e. they must discontinue: both sides will drop hands and walk away with no costs for either party, because their claim cannot possibly succeed.

Attach that Order from HHJ Pema and a list of the costs - including a full day's leave - that you will claim at the hearing, if they do not discontinue by the end of December. Tell Jake that MSE forum says he should give his head a wobble if no discontinuance has been forthcoming yet.

imulsion

Please also feel free to take a look at my recently successful witness statement (click my name, then go to threads, find the one about Napier Parking). Hope it helps you!

tiger_stripes

Thank you @Le_Kirk @Coupon-mad @imulsion . I haven't ignored you, just delayed response due to illness - not ideal for the festive period or for this situation. I'm trying to get back into work-mode for this, and hoping to post my draft WS soon

tiger_stripes

Hello, I have finally received the claimants WS/Evidence. It appears that they are pursuing this for non-payment. (There are references to the 'Contract' that includes "within the time allowed" but they don't specifically note that they are claiming for breach of that).
It is good that I have their WS to defend against but it is also making feel like I need to defend against Every point they make, which is surely unachievable? Especially because I am not legally trained and do not understand every point. 
I read some of their statement that confuses what they have previously said i.e (referring to PCN's/NTK they claim to have sent to me) they have a paragraph that says they offered me a time period for me to appeal but I did not. And that if I do believe the charge was issued incorrectly then I would have engaged with the appeals process further. - They first say I didn't appeal, then they word it like I did appeal but did not continue appealing by using "further"..? Plus, later on in their WS they note that my defence claims I did not receive any PCN or any other correspondence from them. So how could I appeal without notice?
They state that I submitted a ready-available defence template, rather than dealing with the issues. And that it is a waste of theirs and the courts time. - I'm going to defend myself as best as I can with the little info they gave in the POC. Plus, I did deal with issues in my defence as I stated that I did and can prove that I paid etc. Their WS has grammar typos - it looks like they've copied/pasted parts of their WS.
It looks like one of their exhibits is not what they claim it to be, which also makes this confusing.
They claim they do have legitimate interest with an explanation that they are instructed to manage the land, and continue to say 'The Landowners legitimate interest in managing the land is because it is a pay and display carpark. - it is not 'pay and DISPLAY' - the info on their signs which they provide as evidence states 'You do not need to display your ticket' - to me, they are not being consistent with the info they are stating, so this confuses the situation. Or is this unimportant?
They said if I believed the POC to be insufficient then I would have made an Application to the Court. So this would have given the claimant a chance to redo their POC and make it stronger? - why would I do that?.. 

There is quite a few things in their WS that I feel is wrong or wrongly worded but I'm not sure if I am reading it correctly. I can't seem to think of a professional and to-the-point way of 'calling them out' on some of their points.
Can/shall I upload their WS on here or is that not allowed?

Coupon-mad

You can but we've seen it before. It's just a template and we may not get time to look at it. Like I said it's nothing new.

Recent winning WS are seen in these threads:

@imulsion

@Harry77 

@Defendant911

Your strongest point though is firstly to call out this second claim under the doctrine of res judicata and exhibit HHJ Pema's judgment.