Advise on court claim please..

LDast

The defendant is being sued as the driver which means that the PCN could not have been PoFA compliant. In which case, emphasis on the fact that the claimant has not proven that the defendant was the driver should take precedent.

If the defendant has not identified as the driver, inadvertently or otherwise, then the wording of the defence needs to be examined more closely. The defendant admits to being the keeper but cannot recall being the driver on the date in question but has not explained whether it could be someone else.

Regarding the interest calculation, this should be highlighted as a preliminary matter to bring to the court's attention an issue regarding the calculation of interest on the alleged debt claimed by the Claimant, represented by [Name of Solicitors Firm]. It is the defendants submission that the Claimant has either deliberately or negligently miscalculated the interest, and this error is significant in light of the Claimant's professional representation and the requirements under the Civil Procedure Rules (CPR).

The Claimant has calculated interest on the alleged debt from the date of the parking event, which predates the service of the Parking Charge Notice (PCN). The PCN, effectively an invoice, would stipulate that payment is due within 28 days from service. Interest should, therefore, only accrue from 28 days after the PCN was served, not from the date of the parking event itself. By calculating interest from the parking event date, the Claimant is attempting to unjustly inflate the claim, which is not only misleading but also legally unfounded.

This miscalculation is a clear breach of CPR 16.4, which requires that the particulars of the claim provide a concise statement of the facts on which the claimant relies. The miscalculation of interest in this case demonstrates a failure to meet this requirement, as it presents an inaccurate and misleading statement of the amount allegedly due. Furthermore, the particulars of the claim are signed by a statement of truth, which places an obligation on the Claimant to ensure the accuracy of the information provided. The error is therefore not just incorrect, but mendacious in nature, given the alleged professional status of the Claimant's representatives.

Given that the Claimant is represented by a firm of solicitors, the expectation of accuracy and adherence to legal standards is higher. The miscalculation of interest, whether deliberate or negligent, is not just a procedural error but one that undermines the integrity of the claim. It is embarrassing in the legal sense, as it reflects poorly on the standard of conduct expected from allegedly legal professionals and casts doubt on the reliability of the Claimant's case.

Ideally, a draft order should be mentioned that requires the claimant to submit further particulars in detail or the claim should be struck out, and then the Draft Order should be attached to the defence. The draft order should be based on but possibly amended  to this Draft Order that would go with an alternative short defence:

Draft Order example

pcn_freedom

Thanks all.

@LDast - are you suggesting not to use the template defence and use a short defence? If yes, is there a template for short defence? Or can I mention this draft order in section 2 of the defence template or add it in another section in the defence? 

LDast

You cannot use two defences. There is a general consensus on this forum that the long template defence is the way to go. It has been developed and tweaked over the years by @Coupon-mad and has a very good track record.

However, after lengthy discussion with a long serving and very experienced district judge who i have known for over 60 years, it was pointed out to me and suggested that i highlight to the forum that the template defence is well known amongst the judges and is considered overly long and a boilerplate “one size fits all” that most do not bother reading. The same way that any regular on here will plead not to be shown the whole defence when being asked to critique the defendants own paragraph.

Most judges are aware of the failings of the roboclaim solicitors who overload the court system with poorly pleaded claims and that most are either won by default or are discontinued before reaching a hearing. A claim, once allocated to the defendants local court goes to a procedural judge who will manage the case and after reviewing it, either assigns a hearing date or may order something from either party before allocation, or may even strike out the case, there and then.

Most judges want an easy life and if they are on procedural duties, will not bother to read a long defence and simply assign a hearing date. That doesn’t mean that the content of the defence isn’t valid but it doesn’t get the attention it deserves. It was pointed out that it would be more efficient for the courts if the defence was short and simply highlighted the deficiencies in the PoC as not a single one filed through MCOL complies fully with the requirements of CPR 16.4.

By pointing this out in a short defence that would be read and providing a Draft Order for the judge to use, it would be thrown back to the claimant to provide further particulars as detailed in the order. This order is already used in the judges own circuit and to date, not one claimant has managed to fully comply with the order and have either discontinued or had the claim struck out.

So, whilst this a bit radical, understandably so for the regulars who have had so much success over the years with the long defence, I am following advice from someone at the receiving end of these defences who is suggesting that it would be much more efficient for the court system if these roboclaims were nipped in the bud at allocation stage rather than letting them be allocated a hearing date and then discontinued or worse, having the defendant make a procedural error and get a CCJ by default.

It also gives the defendant the satisfaction of knowing that the claimant or, more likely their roboclaim solicitor a very hard time and effort to try, and fully comply with the order, which to date, none of them have managed to do.

As @Coupon-mad has pointed out, there is a risk that the judge will not agree that the PoC are deficient and simply assigns the claim to a hearing and, in effect, there is no defence. However, if that were the case, the defendant still request the order be applied when they return their DQ and could still raise all the failures in their WS. The judge believes that it is highly unlikely that most judges would ignore the short defence, especially with a ready made draft order for their use.

The decision has to be yours whether you want to go with the tried and tested long defence or the much shorter but still relatively new defence with attached draft order. For review, here are the links to the short defence, provided in either first person layman style or third person legally trained style. Either are acceptable and only require the claimant, defendant names, claim number and can be signed simply by typing your name and dating.

Short defence LiP first person

Short defence third person

Draft order for the short defence

pcn_freedom

Thanks for the detailed reasoning and the templates @LDast. I'm going with this short defence and draft order after reading through the PoC in detail in line with your points and the comments on interest from @Coupon-mad. I can see now we have valid arguments here. Even if the defence is a short form or the standard one, all that matters is that I send the defence in time right? 

Thank you all for your great support in this community. Your efforts to help others give me hope in humanity. I'm prepared go to court as am not going to let them rip me off that easily. Let them lose some money in the process. 

Coupon-mad

Even if the defence is a short form or the standard one, all that matters is that I send the defence in time right?

I disagree.

There is no defence in the short version.  Leaving you nothing to build on, if the allocating Judge decides they know better and puts the case forward for a hearing.

At a hearing, as a matter of trite law, you can only be heard on things you pleaded in your defence (apart from signage/terms being unclear, which is covered by the CRA 2015 which you have a legal right for the Judge to have to consider even if not raised).

In other words, you are hanging your hat on a hope that a Judge will agree with the Draft Order and leaving yourself nothing about your actual case to say in court, if it gets to a hearing.

I explained - I think? - you can use the hharry long defence AND send the Draft order at N180 stage.

I don't understand why anyone (particularly litigants in person, not familiar with the process) wouldn't cover all bases by doing it that way?

Le_Kirk

In this case the POC seem to particularise quite clearly, the reason for the claim, as in, failure to display a ticket/permit.

pcn_freedom

Thanks @Coupon-mad. As suggested, I have used the hharry long defence and will use Draft Order at DQ stage.

@Le_Kirk - but the interest calculation is not correct as Coupon-mad pointed out, thus there is an issue with the POC isn't it?.

Coupon-mad

Hmmmm... having had another look I think that POC doesn't lend itself to using either the hharry version or the very short version with draft order.  Sorry.  I was assuming it was pleaded with no breach, given you were about to put all your eggs in one basket and use the short defence (which I was keen to stop!).

No.

Use the template defence and be aware that the POC says "failure to display". It DOESN'T accuse the driver of a failure to pay.

Use the template defence and only respond in 3 to the accusation of failure to DISPLAY. Put Napier to strict proof of that allegation (photos of all windscreens). Then state that the interest is improperly calculated and how.

pcn_freedom

Hi all, I can see on the MCOL status that 'DQ sent to you on 22/08/2024'.

Just checking how long do I have to respond from the date of letter/ DQ? I think I read it somewhere that I'll need to respond within 28 days. Please can someone advise if my understanding is correct as I'm currently out of the country and will be back on 01 Sep and don't want to miss the deadline.

Coupon-mad

Yes you have 28 days. 

When you get back, please show us your para 3 of defence, so we know what was pleaded.