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  • FIRST POST
    • Fairdooos
    • By Fairdooos 14th Jun 19, 6:43 PM
    • 10Posts
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    Fairdooos
    Claim expired CCJ to be entered
    • #1
    • 14th Jun 19, 6:43 PM
    Claim expired CCJ to be entered 14th Jun 19 at 6:43 PM
    Hi there

    it's the first time i've used the forum and i've spent an hour or two sifting! Thank you for the work you do you help so many people...you're wonderful!

    I have a case from BW legal via KBT Cornwall LTD. I was a member in a health club in a hotel. I had a permit but I still got a ticket! The County Court Claim was issued on May 3 2019. I filled out the form admitted the amount claimed and agreed an amount to pay each month. No reply. I have since had another letter saying the C.C.C has expired and if I contact them by June 16th that will halt proceedings.

    I don't want to pay the full amount and would like to know how to proceed please? Is it too late to contact the hotel and start from there?
Page 2
    • Fairdooos
    • By Fairdooos 16th Jun 19, 6:55 PM
    • 10 Posts
    • 0 Thanks
    Fairdooos
    My Defence please would somebody check it
    Do I still need to deal with MCOL?

    Here is my doctored defence....

    Defence Claim No.

    Preliminary Matters
    1.The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5.

    1.1 The claim particulars fail to specify how the terms of parking were breached and fail to fulfil CPR Part 16.4 by not including a statement of the facts on which the claimant relies, only referring to parking charges incurred with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence; are not clear and concise as is required by CPR Part 16.4 1(a).

    1.2 The Claimant and their solicitor are known to be a serial litigants and issuer of speculative claims, using “template” particulars of claim, with no due diligence. Research indicated they are the subject of an active investigation by the Solicitors Regulation Authority.

    1.3 1.1 In C3GF84Y2 (Mason, Plymouth County Court) [2016] the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where a claim was struck out without a hearing, due to Gladstones' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

    1.4 On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the claim was struck out.

    1.5 There are other similar examples which could be produced.

    2. The Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.

    2.1 Alternatively, the Defendant asks that court makes an order requiring the Claimant to file compliant Particulars, to include at least the following;
    a) An explanation as to the exact nature of the charge
    b) A copy of any contract it is alleged was entered into and how (e.g. copies of signage)
    c) Whether the Claimant is acting as Agent or Principal, together with documents they rely on in having standing to bring this claim
    d) If charges over and above the initial charge are being claimed, the basis on which this is being claimed and calculated
    e) If Interest charges are being claimed, the basis on which this is being claimed.

    2.2 Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

    Background
    3. The Defendant is the authorised registered keeper and the driver in question at the time of the alleged incident.

    4. The Defendant denies liability for the entirety of the claim for the following reasons:

    4.1 The Defendant acquired a week long permit from the reception of the Hotel. The permit was made of very flimsy paper, and was, to the full knowledge of the Defendant at the time, in place the right way up when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket moved out of sight or why, but made all reasonable endeavours, and complied by conduct.

    4.2 The Defendant cannot be responsible for the possibility that:
    a) A gust of wind may have later moved the flimsy paper from sight, despite the windows & doors being locked.
    b) The employee of the Claimant may have caused the permit to move from sight, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended.
    c) A passer-by may have leaned on the car, when squeezing between the small bays to get to their own vehicle.

    4.3 None of the above scenarios are within a driver's control (the Defendant was by that time, absent from the location) and it is evident that someone else – or a factor outside anyone's control – was to blame. This appears to have been a case of casus fortuitus "chance occurrence, unavoidable accident", which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract frustrated.

    4.4 Notwithstanding the above, the flimsiness of the permit certainly played its part, and that is within the control of the Claimant, who must be well aware of the problem, which has become known as ''fluttering tickets''.

    4.5 The parking permit was aquired telling the vehicle registration number to the Hotel receptionist . Therefore the Claimant had a full record of full parking payment having been made for the parked vehicle without the ticket being visible on the dashboard.!

    4.6 The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment, and the Defendant relies on Section 62 of the Consumer Rights Act.

    Limited contract
    5. The signage on this site is inadequate to form a contract to pay £100 or any sum at all. It is barely legible, making it difficult to read and it is not believed that such terms were proclaimed with the tariffs at the machine. Part E, Schedule 1 of the Code of Practice of the International Parking Community (of which the Claimant is a member), clearly obliges the Claimant to display legible signs in appropriate locations.

    Locus standi
    6. The Claimant has failed to establish its legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.

    6.1 Parking Eye Ltd v Beavis [2015] UKSC 67 showed that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.

    No advertising consent for signage
    7. The Claimant is not entitled to rely on an illegal or immoral act in order to profit from it, pursuant to the doctrine ex dolo malo non oritur actio. In this matter, the Claimant does not have advertisement consent in relation to its parking signage on the land in question (which are classed as “advertisements” under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). This is a criminal offence under Regulation 30 of those Regulations. Accordingly, as a matter of public policy and pursuant to the doctrine, the Claimant should not be allowed to found a cause of action on unlawful signage. The rationale for this is set out in the case of Holman v Johnson (1775) 1 Cowp 341 and was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015). The Defendant also relies on Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507 and ParkingEye v Somerfield Stores [2012] EWCA Civ 1338.

    7.1 In addition, the Claimant is in breach of various statutory and regulatory provisions set out in the Consumer Protection from Unfair Trading Regulations 2008 (Regulation 3 – a breach of which is an offence under Regulation 5), the Consumer Rights Act 2015 (Sections 62 and 68 and Schedule 2) and the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013 (Regulation 13). Again, the court should not lend its aid to the Claimant in founding a claim based on its unlawful and/or immoral conduct.

    Claimant is seeking a penalty and inflated costs
    8. The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown a valid ticket was purchased and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.

    8.1 The Claimant is under a duty to mitigate its loss. It failed to do so by ignoring the information available from the Hotel that would have enabled it to establish that the Defendant had applied for a full week’s parking.
    8.2 £60 of the £160 ‘parking charge’ (for which liability is denied) the Claimant has untruthfully presented as contractual charges, which amounts to double charging, which the PoFA 2012 Schedule 4 specifically disallows. Any term allowing for the Claimant to pursue such additional charges must be void for uncertainty. In any event, such charges must be covered by the addition of the discounted element of the charge after a driver has failed to pay within 14 days (£40).

    8.3 The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid and that due to the sparse particulars the £50 claimed for filing the claim has not been incurred either. This appears to be an attempt at double recovery as a way to inflate the value of the claim. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.

    8.4 The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”.. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

    8.5 The Defendant denies that the Claimant is entitled to any interest whatsoever

    9. The Defendant invites the court to strike out the claim for the above grounds.!


    I believe the facts stated in this defence are true.
    • KeithP
    • By KeithP 16th Jun 19, 8:47 PM
    • 17,871 Posts
    • 21,768 Thanks
    KeithP
    Do I send anything to the MCOL at all?
    Originally posted by Fairdooos
    Do I still need to deal with MCOL?
    Originally posted by Fairdooos
    No. Do nothing, absolutely nothing, on MCOL.
    .
    • Le_Kirk
    • By Le_Kirk 17th Jun 19, 10:40 AM
    • 6,590 Posts
    • 6,623 Thanks
    Le_Kirk
    Do I send anything to the MCOL at all?
    Originally posted by Fairdooos
    Just do as directed by KeithP in post # 10.
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