CEL county court claim letter - defence advice needed

Esperanto · 30 October 2018 at 2:13AM

Coupon-mad wrote: »

No it isn't, it's £350 on the right, surely...

Hi,

Total amount on claim form is more than £250 but less than £300. Let me know if you need more info.

KeithP · 30 October 2018 at 2:32AM

I can see on this post where Bargepole has said "You have mixed first and third person", but nothing elsewhere.

I can see in this post linked from post #2 of the NEWBIES that Loadsofchildren123, a practising solicitor, tells us:

A defence should be written in the third person ("the Defendant", not "I/my/me")

Loadsofchildren123 · 30 October 2018 at 1:37PM

Defence: write in third person
WS: write in first person

It doesn't matter really, a judge won't get cross or throw your case out if you do it in the first person, but the correct way is to do it in the 3rd person. Even if you are admitting being the driver.

Loadsofchildren123 · 30 October 2018 at 1:41PM

So:

I am XXXXXX, t The Defendant admits that (s)he and was the registered keeper of vehicle XXXXXXX in this matter when the claim was issued. at the relevant time. [if you also admit that the car was parked on the relevant land, say that too - in your Defence you must clearly say what you admit, what you deny and what you do not admit and of which put the C "to full proof"]

The Defendant denies that (s)he is I deny I am liable for the entirety of the sum claimed for each of the following reasons:

Loadsofchildren123 · 30 October 2018 at 1:44PM

Are there no other defences to rely on?
did you breach terms?
was the signage adequate? Was it capable of offering a contract?
did you overstay by a few minutes (ie within allowable grace periods)?
Did they comply with POFA, thus making you liable as RK (in which case you either require them to prove you were driving or deny you were, and then argue that they didn't comply with the relevant paragraph of Schedule 4 of POFA)?
This seems awfully flimsy as a defence.

Coupon-mad · 31 October 2018 at 2:42AM

...a parking charge for exceeding the free time period at a private car park in late 2017. The letter says ANPR cameras, as well as manual patrols, are used to identify cars but I haven’t received any letters containing any photos or any actual evidence.

How much of an overstay is alleged?

Was it a free car park, like in Beavis with say 2 hours free then a 'fine'?

Why didn't you get any photo evidence, did the postal PCN not include photos?

Esperanto · 31 October 2018 at 8:18PM

Thanks all:

- Will rewrite third person using Loadsofchildren's intro
- Alleged overstay of around 30 mins at a car park that is free for limited amount of time - signs (not entrance but elsewhere in car park) say breach of terms will mean a charge (include the original figure)
- Postal PCN did not include pictures. No pictures ever sent to me
- Entrance sign says terms and conditions apply but doesn't include amount. I'll go over schedule 4 of POFA (already looked but will go over again)

Coupon-mad · 31 October 2018 at 10:11PM

- Alleged overstay of around 30 mins at a car park that is free for limited amount of time - signs (not entrance but elsewhere in car park) say breach of terms will mean a charge (include the original figure)

Not great, because that's the same sort of car park as in ParkingEye v Beavis.

- Postal PCN did not include pictures. No pictures ever sent to me

Look up the PPC's Privacy Page online and email their Data Protection Officer, asking for all of the photos, letters and data held about you (a SAR).

- Entrance sign says terms and conditions apply but doesn't include amount.

Doesn't have to. The Trade Body Code of Practice tells you about entrance sign requirements.

Loadsofchildren123 · 1 November 2018 at 12:56PM

Complex and technical arguments (other than POFA-based), whilst they may well have merit, do not usually find favour in a small claim where there is limited time for the judge to hear the case. The judge will very often just reject arguments like these because it takes time to argue and consider them. I included all of them in my own case because I was better placed to disagree with a judge who took this view. Just because it's a small claim, it doesn't mean the law should be applied in a different way to a bigger case.
I am, for example, aware of only one case that has ever succeeded with a "dolo malo non oritur actio" defence, and that was drafted and argued by a barrister (that defence is where you argue that the Claimant cannot base the claim on an unlawful act - eg absence of advertising/planning consent for the signage/ANPR).

Esperanto · 6 November 2018 at 9:12PM

Thanks again all. I've emailed their data protection email with a SAR - they have a month or so to respond so I'm not holding out for them to send anything before this defence is due in on Nov 13th. Anyway I've incorporated all this into a defence based on one of Bargepole's . Any other suggestions welcome:

The Defendant admits that he was the registered keeper of vehicle XXXXXXX at the relevant time and that the car was parked on the land in question.

The Defendant denies that he is liable for the entirety of the sum claimed for each of the following reasons:

1. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action. Consequently, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.
- The Particulars of the Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
- The Claim Form was not signed by a legal person but signed by a Civil Enforcement Limited (Claimant’s Legal Representative),, failing to meet the requirements of Practice Direction XXX B]sure I've seen this but can't find the correct part right now - can anyone help?[/B.
- The Claimant has never provided the Defendant with an explanation of the alleged contract or any evidence of contravention such as ANPR photographs.
2. The Defendant denies that he, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

3. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

4. According to the Land Registry the land in question is not owned by the Claimant. The Claimant is therefore put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices and to pursue payment through litigation.

5. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £xxx. The claim includes an additional £xx, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

6. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

CEL county court claim letter - defence advice needed

Comments

Categories

Get our FREE Weekly email full of deals & guides - and it’s spam-free