Help and guidance please

Capt_Mainwaring · 3 February 2018 at 1:03PM

Hi

Thanks CM.

Please can someone review my letters, as I need to post my defence TOMORROW.

Thanks.

Lamilad · 3 February 2018 at 2:20PM

I'll have a proper look tomorrow, won't have time today.

Capt_Mainwaring · 3 February 2018 at 2:48PM

Thanks Lamilad.

Fortunately, I've now got access to this forum at home.

I'd really appreciate your guidance on both letters (especially the first one).

KeithP · 3 February 2018 at 3:31PM

Capt_Mainwaring wrote: »

Please can someone review my letters, as I need to post my defence TOMORROW.

Why are you rushing to post your defence?

Re-read posts #35, #36 and #39.

Give yourself another couple of days and email it to: ccbcaq@hmcts.gsi.gov.uk

The_Deep · 3 February 2018 at 5:48PM

Have you read this?

https://www.theyworkforyou.com/debates/?id=2018-02-02a.1149.0&p=11026

Complain to your MP now.. The more complaints they get, the sooner these parasites will go to the wall.

Lamilad · 4 February 2018 at 11:32PM

First defence.

I would remove the stuff about Beavis as it will better serve you in your WS/SA further down the line. I doubt they referenced it in the PoC so it's not really relevant at this stage. Keep point #6 but remove sub paras a, c, d.

Where you mention they haven't followed the CoP, add that the Supreme court judges, in the Beavis case found that the CoP is "effectively binding regulation" on parking operaters.

You haven't attacked the PoC which, in Excel's case are always woeful and inadequate. Read some recent CEL defences which will contain paragraphs and wording you can use. Also the Johnersh defence linked in the newbies thread -this also attacks PoFA which can be used in your second defence.

CEL and Excel defences are very similar so you can use a lot of the wording. I seem to recall a poster called 'Ixworth' had a pretty good defence.

Also read this comment by CM:
http://forums.moneysavingexpert.com/showthread.php?t=5775276#17

Capt_Mainwaring · 5 February 2018 at 9:19PM

Thanks Lamilad.

My 33 days are up tomorrow, so I need to act quickly. I've tried to incorporate your points in to the second draft of my letter. I hope it's ok. It's not easy doing this when my wife is out and I'm looking after three young kids!

It is admitted that the Defendant was the driver of the vehicle in question.
However the Claimant has no cause of action against the Defendant on the following grounds:-

1. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. In ParkingEye v Beavis, Supreme Court judges found that the Code of Practice is "effectively binding regulation" on parking operators. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.
The signage is inadequate in terms of the following:
!!!8226; Lack of clarity and prominence of terms and conditions
!!!8226; Illegible text due to font size, density, colour and complexity
!!!8226; Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
!!!8226; Lack of relevant terms and conditions, such as the fees for parking
!!!8226; Inadequate positioning of signs, at unsuitable heights

2. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the day in question.

3. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

a) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
b) The Schedule of information is sparse of detailed information.
c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs.
d) The claimant failed to include a copy of the "contract" as required when seperate Particulars of Claim are served.
e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

4. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Excel Parking Services Ltd.
a) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

5. No sum payable to this Claimant was accepted nor even known about by the driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

6. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-

a) The Claimant did not follow the IPC or BPA Code of Practice
b) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

7. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £164.36 as the !!!8216;amount claimed!!!8217;!!!8217; (for which liability is denied) plus the Particulars of Claim include £60 that the claimant has presented as contractual costs pursuant to PCN terms and conditions. In contradiction to this the claimant's solicitor has, however, described the Principal Debt as £100 and solicitor's costs as a further £110 in correspondence with the keeper summarised within the letter titled !!!8216;Notice of county court claim issued!!!8217;. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative!!!8217;s costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

8. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

9. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

Therefore I ask the court to respectfully strike out this claim with immediate effect.
I believe that the facts stated in this Statement of defence are true.

Capt_Mainwaring · 5 February 2018 at 9:33PM

I take it this is the correct email address - [EMAIL="ccbcaq@hmcts.gsi.gov.uk"]ccbcaq@hmcts.gsi.gov.uk[/EMAIL]

KeithP · 5 February 2018 at 9:40PM

Capt_Mainwaring wrote: »

I take it this is the correct email address - [EMAIL="ccbcaq@hmcts.gsi.gov.uk"]ccbcaq@hmcts.gsi.gov.uk[/EMAIL]

Yes it is.

Coupon-mad · 5 February 2018 at 10:01PM

I can't tell from your defence, what your defence is, so I looked back at your OP where you said:

I don't believe any money is owed to this company (their machines were out of order on both occasions).

So that should be your first point.

And add in the words from the Parliamentary debate, where an MP stated that it would be unfair if an operator invited a driver onsite, but all machines were broken and by the time the driver found that out, they were already incurring a PCN unbeknown to them, from being filmed on entry. A cash cow site.

Help and guidance please

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