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{See my last reply for an update)
Dear All
This is my 1st time having to write a county court defense letter, I have read through the posts in the newbies thread 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. they are claiming for failing to make a valid payment but the initial ticket was paid in cash via the machine 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.
Here is my defense letter they were phoning me consistently trying to arrange payment without even hearing my side.
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.
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
Dear All
This is my 1st time having to write a county court defense letter, I have read through the posts in the newbies thread 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. they are claiming for failing to make a valid payment but the initial ticket was paid in cash via the machine 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.
Here is my defense letter they were phoning me consistently trying to arrange payment without even hearing my side.
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
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
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