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URGENT HELP County court claim Britannia Parking Defense letter Deadline approaching!
Mysti
post Mon, 11 Mar 2019 - 15:49
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[attachment=62503:20190311_133950.jpg]Dear All

This is my 1st time having to write a county court defence letter, I have read through the posts in the newbies thread, I have done my Acknowledgement of service and I have written my 1st draft. I really need help as soon as possible as the deadline is this week. I been receiving these letters late due to moving since the parking fine was issued hence and now has led to a county court claim. Britannia parking are claiming for 'failing to make a valid payment' but have not said how the payment was invalid just sent a pic with my vehicle driving in and out with a time one. The initial ticket was paid in cash via the machine, displayed and discarded a few days later. BW Legal acted as though they were acting in my best interest trying to get me to admit to the claim. they were phoning me consistently trying to arrange payment without even hearing my side.

Here is my 1st draft defence

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.

The Unfair Terms in Consumer Contract Regulations 1999 applies
There is no clear evidence or visible signage surrounding the area where the car was parked, Photos of the Vehicles licence plate were blurred, therefore does not offer a contract with the motorist

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies

The Claimant has no standing to bring a case, the contravention of claim stating ‘Failed to make a valid payment’ only revealing in & out times. When Driver admits to paying in cash to ticket via the machine.

The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty

The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. As the claimant has not provided this information, signage details have been inferred from stock photographs and the details may not be correct. Minor variants in text may occur. All references to signage therefore, are subject to change once the full particulars of claim have been provided. ......

1) It is admitted that the defendant, XXXXXX XXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle.

2) It is denied that any indemnity costs are owed and any debt is denied in its entirety.

3) No evidence has been supplied by this claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.

4) This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors in their claim. The Particulars are not clear and concise, so I have had to cover all eventualities in defending a 'cut & paste' claim. This has caused significant distress and has denied me a fair chance to defend this claim in an informed way.

5) As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.

6) This claim contravention merely states: “Failed to make a valid payment” and shows an in and out time equalling 1 hour 12mins which does not give any indication of how the payment was Invalid on what basis the claim is brought. For example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. Nor are any clear times/dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'.
7) The Driver admitted to purchasing a ticket and paid for in cash via the ticket machine but had thrown away the ticket a few days later. In The claimants evidence you can see a blurred white ticket beneath the windscreen of the Vehicle, as the defendant I asked the claimants solicitors BW LEGAL for the claimant to provide the data received from the ticketing machine to prove a valid payment was made. The request was ignored and blurred images of the vehicle in question were sent however the licence plate was unclear.

8) The Claimant’s solicitors BW LEGAL are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details or even checking for a true cause of action. In the first instance they were misleading in attempted to the defendant’s personal information by offering misrepresentation trying to provoke admission to the claim. They rang & message the defendant almost every day trying to arrange payment. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

9) I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

10) I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

11) It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.

12) The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

13. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement or even any licence to park without a permit, the Beavis case does not assist the claimant and in fact, supports my defence. 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. As the Supreme Court in the Beavis case held, ParkingEye would not have been able to recover any sum without agreement on the charge and any issue of trespass would be limited to the landowner themselves claiming for a nominal sum. The amount claimed is an extravagant and unconscionable penalty. Even if all the conditions had been met to disengage the penalty, the Supreme Court in ParkingEye v Beavis was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable ( ParkingEye v Somerfield).
In summary this case differs to 'the Beavis case' as:
i) The Private Parking Charge has not followed an "effectively binding" code of practice.
ii) The Claimant has no commercial justification
iii) The Claimant did not follow the IPC or BPA Code of Practice
iv) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
v) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

14) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott vs Loake(1982) in which there was irrefutable evidence of the drivers identity. The Protection of Freedom Act 2012 Schedule 4 has not being complied with and the claimant may not quote reasonable assumption. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

15) It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court. The lack of diligence in this claim demonstrates admirably that at best a ‘copy and paste' is the closest a human, legally trained or not, came to the information transmitted from claimant to the Money Claims Online system. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.
16) It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of staying over time or for whatever reason the unclear contravention claim states, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.
17) It is asserted that any competent solicitor would have negotiated the charge to be equal to a genuine pre-estimate of loss, being the normal legal situation provided for by the national law in force.

18) It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event. Thus there being no picture evidence of the Vehicle parked in the location surrounded by any clear visible signage conveying the contract in question.

19. In the pre court stage the Claimant’s solicitor refused to provide me with the necessary information The defendant requested in order to defend the driver against the alleged debt, The Defendant explained they had moved and provided them the correct address however letters thereafter continued to be sent to the wrong address hence not allowing enough for alternative dispute resolution via POPLA, as The Defendant received letters late a number of times including the county court letters.


20. 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 is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

21. The Defendant 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 Gladstones' 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''.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.


Please let me know if this is ok as I need to send this as soon as possible

This post has been edited by Mysti: Wed, 13 Mar 2019 - 13:43
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post Mon, 11 Mar 2019 - 15:49
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ostell
post Tue, 12 Mar 2019 - 09:07
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So without seeing the original PCN or signs it's difficult to comment.

3) No evidence has been supplied by this claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.
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nosferatu1001
post Tue, 12 Mar 2019 - 23:20
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UTCCR doesn't exist it was replaced going on 4 years ago by the cra2015 I believe.

You've got a crap old mishmash of a defence and appeal

MSE forum
Newbies thread
Post 2
EXAMPLE draft d3fence by barge pole.
Use it, adapt to fit, and send that in. Understand it as well.

Also
Tell us your actual deadline
Don't guess. 33 days from date of issue.

This post has been edited by nosferatu1001: Tue, 12 Mar 2019 - 23:21
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Mysti
post Wed, 13 Mar 2019 - 11:07
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MSE forum
Newbies thread
Post 2
EXAMPLE draft d3fence by barge pole.

thank you for commenting plase could you send me the link to the draft defense. I need to submit my denfese by tomorrow, I recived the county court letter on 11th Feb and Acknowlegde the service on 22nd Feb.
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Ollyfrog
post Wed, 13 Mar 2019 - 11:29
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Can't believe this - talk about leaving it until the last minute! Yes, fine, I'll just take the day off work for you!

Googled in 10 seconds - get a wriggle on!

https://forums.moneysavingexpert.com/showth...d.php?t=4816822
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southpaw82
post Wed, 13 Mar 2019 - 13:33
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QUOTE (nosferatu1001 @ Tue, 12 Mar 2019 - 23:20) *
Use it, adapt to fit, and send that in. Understand it as well.

I appreciate you are under a strict time limit but you may want to post it here first for comment. Many of the ones I see are not very good (I make no comment on the particular template) and even less so when mangled by an inexperienced person.

QUOTE (Ollyfrog @ Wed, 13 Mar 2019 - 11:29) *
Can't believe this - talk about leaving it until the last minute! Yes, fine, I'll just take the day off work for you!

Googled in 10 seconds - get a wriggle on!

https://forums.moneysavingexpert.com/showth...d.php?t=4816822

I’m getting a bit sick of the attitude of some regulars here to new posters. By all means suggest that the information is freely available but don’t cop an attitude with them when you provide it. See you in 24 hours.


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Mysti
post Wed, 13 Mar 2019 - 17:08
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I am new to this so I understand the terms fully I have seen the post on the newbies theard on money saving expert, but there was so many links is this the one your were referring to - https://forums.moneysavingexpert.com/showpo...mp;postcount=24 or this one as there is not much detail in this post just how to set it out https://forums.moneysavingexpert.com/showth...44#post71228944
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southpaw82
post Wed, 13 Mar 2019 - 18:31
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I've just done a very simple example here.


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Mysti
post Wed, 13 Mar 2019 - 19:57
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Here is my 2nd draft using bargepoles example what do you think

IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx

BETWEEN:

NCP (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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 XXXX, of which the Defendant is the registered keeper, was parked on the material date in a private car park at XXXX Business Park, and The Driver had paid for a valid ticket via the pay & display machine.

3. The Particulars of Claim state that the Defendant XXX; was the registered keeper and/or the driver of the vehicle XXX. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, 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.

4. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

4.1 Claimant states The Defendant made an invalid payment but doesn’t specify how.

5. The terms on the Claimant's signage are also displayed in areas not visible to where the car was parked and from any 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.

6. Harassment and distress.
The Claimant's Litigation department's continued contact and demands for money have represented a significant nuisance that is continuing to affect The Defendants peace of mind and distracting The Defendant from their work and my daily life. The Claimant's Litigation department has been misleading about the law towards the Defendant and makes continuous phone calls pretending they want The Defendant to telephone them so that they can help "resolve the matter" when instead they are attempting to provoke an admission from the Defendant in order to transfer money to the Claimant.

7. The Particulars of Claim state that the Claimant's claim is for the sum of £238.64 being monies due from the Defendant to the Claimant in respect of a PCN for a parking contravention which occurred on XXXXXX in relation to a vehicle registration mark XXXXX. These assertions indicate that the Claimant has failed to identify a Cause of Action. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.
Further, 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.

8. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.


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.

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.
In addition to the 'parking charge', the Claimant's legal representatives, BWLegal, have artificially inflated the value of the Claim by adding costs of £60 which has not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery.
The claim includes an additional £78.64, for which appears to be an attempt at double recovery.

10. 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
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southpaw82
post Wed, 13 Mar 2019 - 21:33
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Not at all what I’d do.


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HotWater
post Wed, 13 Mar 2019 - 22:41
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QUOTE (Mysti @ Wed, 13 Mar 2019 - 19:57) *
Here is my 2nd draft using bargepoles example what do you think


OP - You urgently need to file something, whatever you decide.

Personally I would file the example suggested by Southpaw above (as long as you believe it to be true, of course), and do it this evening.

Southpaw - I originally believed that if you wanted to be able to rely upon a fact or argument, then you have to mention it in your claim and/or defence. For example, if you had a specific argument as to why there was no contract formed, that would need to be mentioned. From you defence, and taking into account your obvious knowledge, I was clearly mistaken in that belief. Are you able to provide any insight into this? It would be useful to me, and I am sure to many others, and would likely help to cut down the long defences that many draft (and which I have drafted in the past).

This post has been edited by HotWater: Wed, 13 Mar 2019 - 22:42
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Mysti
post Thu, 14 Mar 2019 - 10:14
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@southpaw

so are you saying that all i need to send is something like this,

1. The Defendant is the registered keeper of a [colour] [model] Toyota motor car, registered number [number] ('the Car').

2. It is admitted that the car was present at [location] at [time] on [date].

3. It is denied that the Defendant has any liability to the Claimant in the sum claimed or at all. This is because neither the Defendant nor anyone acting on their behalf entered into any contract with the Claimant on the date stated or at all.

The above is written on the basis that:

(a) the statements in it are true (because you will commit a contempt of court if you sign a statement of truth without an honest belief in the truth of the statements. You could go to prison).
(b) the signs at the site are indeed insufficient to form a contract.
© that you were not the driver.
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southpaw82
post Thu, 14 Mar 2019 - 11:14
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QUOTE (HotWater @ Wed, 13 Mar 2019 - 22:41) *
Southpaw - I originally believed that if you wanted to be able to rely upon a fact or argument, then you have to mention it in your claim and/or defence. For example, if you had a specific argument as to why there was no contract formed, that would need to be mentioned. From you defence, and taking into account your obvious knowledge, I was clearly mistaken in that belief. Are you able to provide any insight into this? It would be useful to me, and I am sure to many others, and would likely help to cut down the long defences that many draft (and which I have drafted in the past).

How specific you have to be is a matter of fact and degree in each case, and to some extent taking into account the overriding objective - this is, after all, a very small claim. The purpose of a defence is to deal with the claim made. Ideally this is done point by point but the claim in this case is not set out point by point. The fundamental rule (with some exceptions) is that a claim that is not denied is admitted. The defence should set out the points of dispute between the parties so that everyone, including the court, knows the points of dispute.

Using your example a defence can be approached in a few ways. You could simply set out that it is denied that any debt is owed as no contract was formed. This puts everyone on notice that the existence of a contract is a disputed issue between the parties and the claimant will have to prove it. The reasons and evidence as to why the defendant has a positive case that it was not formed can come later in the witness statement(s). Alternatively, there is no harm in saying why no contract was formed, e.g. because the signs were not prominently displayed or their wording was insufficient or whatever the case may be but (a) it is often not strictly necessary at this stage, (b) the defense not necessarily have the evidence to support those particular claims at this stage and (c) it arguably ties the defendant down to those issues so that adding more can be problematic later on. It’s a decision to be made on a case by case basis.

What I do not agree with is thinly disguised requests for the court to strike out the claim in a defence. Strictly, those ought to be made by application and on paying the application fee. Bearing in mind the court’s power to exercise its own powers and the nature of the small claim this could be done informally by letter (and I don’t know what the attitude of the county court is on such an approach). I also don’t agree with prolix paragraphs dealing with the evidence when, quite frankly, that ought to be dealt with in witness statements or in court. A defence is not a place to argue the case on the papers.


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