Total Parking Solutions claim

GodEmperorBozza

LDast said:

Also, interest is calculated incorrectly and applied to the initial charge on the original PCN and the "damages" which is an abuse of process. Throw the book at them in the defence with another preliminary matter.

Please can you expand on this? Will add this into my defence 

LDast

It is impossible to work out from the claim form what the cause of action is or the amounts being claimed. It states that the PCN was issued on 08/10/2023. Does that mean that was the date the driver allegedly breached a contract or the date that the actual PCN was "issued/sent" to the keeper? Without knowing which, it cannot be calculated when any interest became due.

Interest can only be calculated on the principle debt which was what? Whatever was on the PCN but it is not clear what that was. Any calculation of interest can only be from the due date of the original PCN to no later than the issue dat of the claim. Once you know the amount of time and the principle sum of the alleged debt you only need work out the period as a fraction of a year x 0.08 (8%/annum) x the principle sum.

1. From those PoC, can you see what the cause of action is? No
2.  Can you see what the principle sum of the alleged debt was? No.
3. Can you work out when the alleged debt became due? No.
4. Can you work out the period that interest can be calculate on? No.

Issuing a county court claim for an amount that exceeds what is permissible under the Protection of Freedoms Act 2012 (PoFA) is an abuse of process and an improper claim, breaching several Civil Procedure Rules (CPRs). Here’s a detailed breakdown:

The original Parking Charge Notice (PCN) issued was for £??? We don't know. The claimant has issued a county court claim for £145. Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012 (PoFA) states that the creditor may not claim more than the amount of the unpaid parking charges as they stood when the notice to the driver was issued. The claimant’s demand for £145 is in direct violation of this provision as a PCN cannot be more than £100.

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 £145 has no reasonable grounds, as it exceeds the lawful amount stipulated by PoFA.

CPR 3.4(2)(b) - The claim should be struck out: 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.

In addition to the above, the claimant has incorrectly calculated the interest. Any interest must be on the principle sum, which as noted above cannot be more than the amount on the original PCN. The sum on the PCN became due 28 days after the issue of the PCN, not the date of the alleged breach of contract.

Interest can only be calculated on the principle sum from the due date to no later than the issue date of the claim. Interest can only be calculated at a simple 8%/annum flat rate.

There are several "Preliminary Matters" for strike out due to abuse of process that must go into the defence for consideration by the allocating judge. These will be the CEL v Chan appeal. The breach of PoFA 4(5). The Claimants failure to provide full and proper disclosure of all documents, evidence, and the precise calculation of the alleged debt. A statement of truth that is mendacious.

GodEmperorBozza

Brilliant! Thanks for expanding on this - I will add into my defence. I have cited the CELvChan case and dropped in the screenshots of the case transcipt into the defence doc. 

GodEmperorBozza

Good afternoon all. I have finished up my defence draft. Is there any merit in posting it here for you to sensecheck? I know full well you cannot provide any direct litigious advice on the precise wording of my defence (as per the comments in the newbies thread), but any further advice will be very well received! 

Coupon-mad

Only the first few paragraphs please. 

GodEmperorBozza

I have added in the usual template, including the sections and screenshots of the CELvChan case. The bits I have added in (thanks again LDast!) are as follows: 

"5. The Defendant cannot recall the specific details about the alleged offence on the basis that The Defendant has not received a ‘PCN’, however The Defendant can confirm that the vehicle has in the past parked on the grounds of Dartington Hall Trust, Devon, TQ9 6EL, which aligns with the POC. 

6. The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served.

 

7. It is worth noting that the interest has been calculated incorrectly. It is impossible to work out from the claim form what the cause of action is or the amounts being claimed are. It states that the ‘PCN’ was issued on 08/10/2023. It does not determine whether this was the actual date that the driver allegedly breached any contract or the date that the ‘PCN’ was issued/sent to the keeper. Without knowing which, it cannot be calculated when any interest became due. Interest can only be calculated on the principle debt, however this principle debt has not been identified. Any calculation of interest can only be from the due date of the original PCN to no later than the issue date of the claim. 

 

8. From the POC, it cannot be determined: 

a.) what the cause of action is, 

b.) what the principle sum of the alleged debt was, 

c.) when the alleged debt became due, nor 

d.) what the period that interest be calculated on is. 

9. The issuing of a county court claim for an amount that exceeds what is permissible under the Protection of Freedoms Act 2012 (PoFA) is an abuse of process and an improper claim, breaching several Civil Procedure Rules (CPRs). The original ‘PCN’  issued was for an unknown sum. The claimant has issued a county court claim for £145. Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012 (PoFA) states that the creditor may not claim more than the amount of the unpaid parking charges as they stood when the notice to the driver was issued. The claimant’s demand for £145 is in direct violation of this provision as a PCN cannot be more than £100. The POC is therefore in breach of several CPRs as follows: 

• 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 £145 has no reasonable grounds, as it exceeds the lawful amount stipulated by PoFA.

• CPR 3.4(2)(b) - The claim should be struck out: 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.

In addition to the above, the claimant has incorrectly calculated the interest. Any interest must be on the principle sum, which as noted above cannot be more than the amount on the original PCN. The sum on the PCN became due 28 days after the issue of the PCN, not the date of the alleged breach of contract.

Interest can only be calculated on the principle sum from the due date to no later than the issue date of the claim. Interest can only be calculated at a simple 8%/annum flat rate."

1505grandad

Pedantic observation (hope I have "observed" correctly)

Typo (plus other refs.)  -  "Interest can only be calculated on the principle debt,..."

Per Google  -  "What is the difference between principal and principle of a loan?

Principal is the amount of money borrowed or invested, while principle is a fundamental rule or law that guides financial decisions."

GodEmperorBozza

1505grandad said:

Pedantic observation (hope I have "observed" correctly)

Typo (plus other refs.)  -  "Interest can only be calculated on the principle debt,..."

Per Google  -  "What is the difference between principal and principle of a loan?

Principal is the amount of money borrowed or invested, while principle is a fundamental rule or law that guides financial decisions."

Well spotted, thank you -  Microsoft spellcheck very much agrees with you! 

Coupon-mad

Move para 8 up to become para 6 and it will flow better.

Add a denial to para 5, of any driver of the vehicle knowingly entering into, or breaching by conduct, any parking terms at the location.

GodEmperorBozza

Coupon-mad said:

Move para 8 up to become para 6 and it will flow better.

Add a denial to para 5, of any driver of the vehicle knowingly entering into, or breaching by conduct, any parking terms at the location.

Have moved para 8 - good thinking thanks!

 I am hesitant to deny here as the partial payment that was made would be in contention of claiming to have not entered into any contract? 

Having re-read, I am more inclined to remove the line on para 5 "however The Defendant can confirm that the vehicle has in the past parked on the grounds of Dartington Hall Trust, Devon, TQ9 6EL, which aligns with the POC" as it does not add anything to my argument/defence.