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Claim form recieved draft defense review appreciated
Anton1933
Posts: 9 Forumite
Hello I have lurked around this forum for a few weeks and I hope I have learnt much reviewing the newbie stickies and case threads. I am amazed at the help you provide to users in need , like myself ,of legal assistance. I thus apologise if anything scribed below is due to poor due diligence by me.
I received a claim form recently and have electronically acknowledged it such that I will now need to submit my online, emailed , defence in Early December.
I have previously made a few mistakes batting corres. with Gladstones, nothing serious other than wasting my time before I found your site and discovered the concept of robo claims !
My case is straightforward I think ? It is primarily about poor signage and as you demonstrate on your forum, there is nothing new under the sun. Your forum has already help me immensely. My now being aware of Abuse of Power is another good example.
So, with what I have read here to date I have constructed a draft defence which I am striving to keep short and to the point.
May I firstly confirm with you that I do not need to get into case law yet (e.g. Beavis is very relevant for me ref signage) at this early stage ? I am doing no more than creating a high level defence addressing each point in the particulars of claim such that my subsequent detailed witness statement can legitimately trace back to it . Is that a correct assumption by me ?
Similarly I have taken photographs and I can provide a video from the front driver position following the same route but these are exhibits for later rather than now ?
However the issue that is foxing me currently is that the Company for whom the prohibitive signage was displayed ,was dissolved last year , a year or so after the PCN was issued.
Do they count as the landowner in the context of this case? My thinking here is that this is
, I think, a trespass case? and only a landowner can do that and they no longer exist ?
In reality I think the poor signage works primary for me but I will include anything that helps eg adding in Abuse of power .
My draft defence is as below
Usual stuff Above
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The facts are that the vehicle, registration AAN AAA (the ‘vehicle’) which the Defendant was driving, was parked on the material date and time in an unmarked bay within a car parking area in NNNNN for about ten minutes having entered the car parking area which has no warning signage at it's entrance.
3. The Particulars of Claim state that the Defendant was the driver of the vehicle in breach of the terms of parking stipulated on the signage ( the 'contract')
thus incurring the parking charge (the 'PCN'). The defendant agrees only that he was the driver.
4. Due to the brevity of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass.
5. It is denied that the Defendant entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
6. The terms on the Claimant's prohibitive 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 Claimants signage is capable of creating a legally binding contract.
7.The Claimant is 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 by means of litigation. In this context,the defendant notes that landowners company was dissolved on 8th of May 2018.
8. 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 £100. The claim includes an additional £60, allegedly for contractual costs for which no calculation or explanation is given, and which appears to be an attempt at double recovery which the defendant considers an abuse of power.
9. 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.
10. 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
Date
I received a claim form recently and have electronically acknowledged it such that I will now need to submit my online, emailed , defence in Early December.
I have previously made a few mistakes batting corres. with Gladstones, nothing serious other than wasting my time before I found your site and discovered the concept of robo claims !
My case is straightforward I think ? It is primarily about poor signage and as you demonstrate on your forum, there is nothing new under the sun. Your forum has already help me immensely. My now being aware of Abuse of Power is another good example.
So, with what I have read here to date I have constructed a draft defence which I am striving to keep short and to the point.
May I firstly confirm with you that I do not need to get into case law yet (e.g. Beavis is very relevant for me ref signage) at this early stage ? I am doing no more than creating a high level defence addressing each point in the particulars of claim such that my subsequent detailed witness statement can legitimately trace back to it . Is that a correct assumption by me ?
Similarly I have taken photographs and I can provide a video from the front driver position following the same route but these are exhibits for later rather than now ?
However the issue that is foxing me currently is that the Company for whom the prohibitive signage was displayed ,was dissolved last year , a year or so after the PCN was issued.
Do they count as the landowner in the context of this case? My thinking here is that this is
, I think, a trespass case? and only a landowner can do that and they no longer exist ?
In reality I think the poor signage works primary for me but I will include anything that helps eg adding in Abuse of power .
My draft defence is as below
Usual stuff Above
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The facts are that the vehicle, registration AAN AAA (the ‘vehicle’) which the Defendant was driving, was parked on the material date and time in an unmarked bay within a car parking area in NNNNN for about ten minutes having entered the car parking area which has no warning signage at it's entrance.
3. The Particulars of Claim state that the Defendant was the driver of the vehicle in breach of the terms of parking stipulated on the signage ( the 'contract')
thus incurring the parking charge (the 'PCN'). The defendant agrees only that he was the driver.
4. Due to the brevity of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass.
5. It is denied that the Defendant entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
6. The terms on the Claimant's prohibitive 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 Claimants signage is capable of creating a legally binding contract.
7.The Claimant is 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 by means of litigation. In this context,the defendant notes that landowners company was dissolved on 8th of May 2018.
8. 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 £100. The claim includes an additional £60, allegedly for contractual costs for which no calculation or explanation is given, and which appears to be an attempt at double recovery which the defendant considers an abuse of power.
9. 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.
10. 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
Date
0
Comments
-
Hello and welcome to the forum.
What is the Issue Date on your County Court Claim Form?0 -
The retailer may or may not have been the landowner
If a contract existed at the time , it's irrelevant if they are no longer there
Concentrate on the defence for now , the proof comes later on at We plus the Exhibits stage
It's abuse of process , not power (even though power is apt)
Add the new abuse of power paragraphs by coupon mad posted in the thread by beamerguy to your defence
Email a SAR to the DPO at the PPC if you haven't already done so
Post the issue date from the claim form below0 -
Hi, Issue date was 7th Nov
I have just looked at MCOL and can see they have marked up that I have acknowledged service
Defence is shown as pending I think0 -
With a Claim Issue Date of 7th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 10th December 2019 to file your Defence.Issue date was 7th Nov
That's nearly four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.
When you are happy with the content, your Defence could be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
- No need to do anything on MCOL, but do check MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
0 - Sign it and date it.
-
Redx
thanks for spotting my Power v Process clanger , embarrasing !
1.I will absolutely use the new abuse of power paragraphs by coupon mad posted in the thread by beamerguy, as suggested by you ( thank you for that) .But is it not better that this detail goes into my subsequent witness statement later given that I have touched on it in my initial defence statement ( once I, err, change "power" into "process") .
2. You mention requesting a SAR from the DPO at the PPC . I have their copy of the PCN signage and I'm not clear what they hold pertaining to me will actually serve here.. or. err, has this gone above my head ?0 -
1) what if the judge decided to strike it out at the defence stage of the process instead of in several months time ?
surely the sooner its in , the better ? unless you know something I dont ?
2) you want all correspondence , all photos , all your data , everything , I doubt they have supplied you with everything , hence the SAR
I have never known any company supply all the data without a SAR request first0 -
I would put it in now if you are in the Southampton area court circuit, but if not then I would save the detailed supplementary WS about it till later because IMHO it is unlikely other Judges will strike cases straight out this early.1.I will absolutely use the new abuse of [STRIKE]power[/STRIKE] process! paragraphs by coupon mad posted in the thread by beamerguy, as suggested by you ( thank you for that) .But is it not better that this detail goes into my subsequent witness statement later given that I have touched on it in my initial defence statement ( once I, err, change "power" into "process") .
It shows you their hand, so you can see ALL the photos they are relying on and all the letters, PCN, NTK in case you binned them.2. You mention requesting a SAR from the DPO at the PPC . I have their copy of the PCN signage and I'm not clear what they hold pertaining to me will actually serve here.. or. err, has this gone above my head ?
Are the signs like in CEC16's case, in that the added fake £60 cost is not stated as a sum but is vague and unspecified?PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
[FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP after the election, it can cause the scammer extra costs and work.
Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT]You never know how far you can go until you go too far.0 -
Coupon Mad
Thank you for that , ref you asking:
"Are the signs like in CEC16's case, in that the added fake £60 cost is not stated as a sum but is vague and unspecified? "
I think so. Back in the day, in mid 2018 Gladstone's LBC stated , inter alia, that:
" the charge amount includes £ 60 claimed by our client for its time spent and resource facilitating the recovery of the charge. The amount is a pre determined and nominal contribution to our clients losses as direct result of your non payment"
This then turned up in the actual claim form in the Particulars of Claim as:
" …. the Claimant claims £100 for the PCN, £60 contractual cost pursuant to the Contract
and PCN terms and conditions , …..0 -
I have an updated V3 defence including more detail about the signage type as well as another example of abuse of process ( appreciating that this second example is grist for the mill and a slap at most at courts it seems)
--snip--
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The facts are that the vehicle, registration AAN AAA (the ‘vehicle’) which the Defendant was driving, was parked on the material date and time in an unmarked bay within a car parking area in NNNNN for about ten minutes having entered the car parking area which has no warning signage at it's entrance. The defendant agrees only that he was the driver.
3. The Particulars of Claim state that the Defendant was the driver of the vehicle in breach of the terms of parking stipulated on the signage (the 'contract') thus incurring the parking charge (the 'PCN').
4. Due to the brevity of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass.
5. It is denied that the Defendant entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
6. The terms on the Claimant's prohibitive signage are also displayed in a font which is too small to be read from a passing vehicle.
7.The signage was in such a position that even if clearly visible, anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimants signage is capable of creating a legally binding contract.
8. The claimants warning signage is an absolute prohibition against any person parking in a parking bay other than an authorised vehicle with a valid permit on display in the windscreen at all time. The defendant asserts that the signage is effectively saying is you must not trespass here and that the claimant is dressing up in the form of a contract, the right to charge the defendant a sum of money which really would be damages for trespass, assuming that the claimant genuinely has any interest in the land in order to proceed in trespass.
9. The Claimant is 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 by means of litigation. The defendant also notes that client company for whom the claimant is acting was dissolved on the 8th of May 2018.
10. 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 £100. The claim includes an additional £60, allegedly for contractual costs for which no calculation or explanation is given, and which appears to be an attempt at double recovery which the defendant considers an abuse of process.
11. The claimants solicitors have twice, 11 months apart issued, as if the second was ab initio, letter before claim proceedings requiring identical responses from the defendant. The defendant asserts that this is also an abuse of process.
11. 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
Date0
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