Hi All,
I am now at the point where i have to send in my Defence.
Could you guys please take a look over it and let me know if it is acceptable ?
Defence
1. The Claim relates to an alleged debt arising from the driver's alleged breach of contract when parking at XXX car park on DATE. Any breach is denied.
The so called Contravention was detected and recorded by Automatic Number Plate Recognition Cameras (ANPR)
2. The notice to keeper is incorrect
The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012. The parking charge notice was issued 39 days after the alleged parking offence, and did not arrive with the Defendant until 41 days after the alleged parking offence.
3. The charge is disproportionate and not a genuine pre-estimate of loss
The amount being charged is not based upon any genuine pre-estimate of loss to the claimants company or the landowner.
In the Defendants case the £100.00 INVOICE the claimant is asking for far exceeds the cost to the landowner of £1.50 per hour for the overstayed 19 minutes.
No locus standi
4. In order to issue and to pursue unpaid charges via litigation, the claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. The claimant has taken no steps to provide evidence that such authority has been supplied by the claimant, and the claimant is put to strict proof.
5. Even if the claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the claimant in this case.
6. Unconscionable and unrecoverable inflation of the 'parking charge'. In addition to the original parking charge, for which liability is denied, the claimants have artificially inflated the value of the Claim by adding a debt collection charge of £60.00. The defendant has the reasonable belief that the claimant has not incurred £60.00 costs to pursue an alleged £100.00 debt.
6.1. Whilst £60.00 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, the claimant has not expended any such sum in this case.
This claimant uses two debt recovery agents one being “Dept Recovery Plus” the other being “Zenith Collections” Both work on a no WIN no FEE basis.
Proof of this is within the dept recovery agent’s letters to the defendant.
The first one being from “Debt Recovery Plus Ltd” where the original invoice has jumped from £100.00 to £160.00, then a second Invoice from “Debt Recovery Plus Ltd” now reduced to £136.00, then a third Invoice from “Zenith Collections”
Now reduced to £79.99
6.2. The added 'debt collection charge’ is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery.
7. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the claimant’s contractual authority to operate there as required by the claimants Trade Association's Code of Practice B1.1.
8. The claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
8.1. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
8.2. The claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the claimant may not pursue any charge.
9. The claimant has at no time provided an explanation of how the parking charge has been calculated, the conduct that gave rise to it or how the amount has escalated from £100.00 to £160.00. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
9.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
9.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
9.3. The defendant denies that the driver would have agreed to pay the original demand of £100.00 (or the early payment option of £60.00) to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
10. The claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the defendant that a County Court Judgment would apply if matters were taken to court and that the defendant's ability to obtain credit would be affected) adding further unexplained charges with no evidence of how these extra charges have been calculated.
11. Wholly unreasonable and vexatious claim. It is submitted that the conduct of the claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the claimant filing a Notice of Discontinuance) the defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2) (g).
12. The Court is also invited to take Judicial Notice of House of Commons, Friday 2 February 2018 meeting on Parking (Code of Practice) Bill where the MPs highlight these scams of the private parking companies and their solicitors.
13. The defendant respectfully requests the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.
14. If the court is not minded to make such an order, then when Directions are given, the defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.
15. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the claimant in ignoring the defendant is wholly unreasonable. As such, the defendant will keep a note of their wasted time/costs in dealing with this matter.
I confirm that the facts in this defence are true to the best of my knowledge and belief.
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