It isnt clear from your posting what the new POC says. You should post it up as it appears when you got your copy of the new version

Just back from Hols and found a letter from the local court stating the following:

 

The claimant has until 14th April 4pm to file and serve amended particulars of claim addressing matters required by CPR1998 PD16.7 and the legal basis of the claim shall be struck out.

 

They have filed them arrived 13th and I received a copy post dated 13th April.

 

I have been given 14 days from service to serve on the claimant an amended defence. i.e. 27th April.

 

Its a bit short notice considering I gave them dates when not available.

 

BW Legal have sent 15 pages or so 5 pages setting out their claim the rest copies of the lease to the car park photo copies of the parking notice, signage and parking notice.

 

If you want me to type all the details out i can but they have made some mistakes on the particulars of claim on te first page which I will give you now.

 

1. the PCN for parking contravention which occured on the 28th October 2016 (The contrevention date) - Wrong date

 

2. The claimant does not intend to reply on the registered keeper liability detailed under the protection of freedoms act 2012

 

4. At all material times, the defendant was the registered keeper and / or the driver of the ........... bearing vehicle registration mark ....... - They have the wrong vehicle and VRM.

 

5. The claimant submits that the defendant was the driver of the vehicle on the contravention date. - Still no evidence.

 

I need to check if its been filed electronically but at the moment all I have is a hand copy.

 

regards

He already has the amended particulars EB

Andy

Hi sorry I dont have a scanner or printer.

I have taken a photo of each page and now have them on the PC but Im not sure how to download them and send as a pdf file.

Sorry

read upload

Seeing it in full without comment exactly as written is what i want to see.

I'll have ago to upload tomorrow but IT not my best subject , time is running out.

The court will accept an email copy not sure about BW Legal.

Deadline Friday.

I cant see how I can but anything together as BW have made a complete B..ls up , surely we simply say

we cant comment on any of the particulars as we have know knowledge of the date/vehicle etc etc.Thank them for wasting everyones time including the judjes. STRUCK OUT !

I'll have ago to upload tomorrow but IT not my best subject , time is running out. The court will accept an email copy not sure about BW Legal. Deadline Friday. I cant see how I can but anything together as BW have made a complete B..ls up , surely we simply say

we cant comment on any of the particulars as we have know knowledge of the date/vehicle etc etc.Thank them for wasting everyones time including the judjes. STRUCK OUT !!!!!

Have you clicked on the word upload in your or my post? There's a load of instructions behind the page that tell you what to do.

HB

I'll have ago to upload tomorrow but IT not my best subject , time is running out. The court will accept an email copy not sure about BW Legal. Deadline Friday. I cant see how I can but anything together as BW have made a complete B..ls up , surely we simply say

we cant comment on any of the particulars as we have know knowledge of the date/vehicle etc etc.Thank them for wasting everyones time including the judjes. STRUCK OUT !!!!!

And you will lose if you submit the above...a defence must be CPR compliant.

first 5 attachements sorry I tried to put allof them in 1 file. I'll post the next 5 docs.

Next 5 pages. One more to send

last couple of docs.

When you look at the photos to the entrance to the car park no mention of costs etc. the kiosk was closed and the signage in the background shows the back of the sign (in grey) with parking charges on. etc.

I've managed to put it into a zip file.

claimant ws .pdf

thread tidied zip converted to pdf and reduced it size from 40mb

many thanks

have you looked at their statement and gone through it line by line?

There are many errors, for example, they say they arent relying on the POFA to create a keeper liability but then say that you are being sued as driver/keeper.

ditto at 6.1 they cant claim agency as the POFA is specific about this and at point

29.2 the POFA says only the original about billed in the NTK applies to keeper. they also say they are claiming £60 in costs agreed if they were suing driver but at point

31 they say the sum is £54. They both cant be right.

On the sign photo offered as evidence they say the £100 charge is reduced to £40 yet they claimed more than this in the NTK.

The core terms of the sign dont say anything about a charge being payable for not buing a ticket and the small print snt that clear so you can reject the whole deal as an unfair contract under S62 of the Consumer Rights Act

The company they have a lease with changed names in 2013 and no evidence has been offered to show that the lease was renewed after 2010 under the same terms.

so you need to print out the relevant sections of the POFA to show that they are barking up the wrong tree.

this info can be found on other recent threads and you MUST differentiate between your position as defendant and KEEPER of the vehicle and the driver at the time.

Then saying you have failed to tell them who was driving makes you liable isnt true but if you dont point these things out then it will be taken as read.

Thanks for your comments, as you point out they have made many mistakes including the following:

1. the PCN for parking contravention which occured on the 28th October 2016 (The contrevention date) - Wrong date

2. The claimant does not intend to reply on the registered keeper liability detailed under the protection of freedoms act 2012

4. At all material times, the defendant was the registered keeper and / or the driver of the ........... bearing vehicle registration mark ....... - They have the wrong vehicle and VRM.

5. The claimant submits that the defendant was the driver of the vehicle on the contravention date. - Still no evidence.

What do I say about 1-4 ? wrong date , wrong vehicle, wrong registration plate ?

you start off by denying that any monies are owed to the claimant for the following reasons:

1. neither the defendant nor the vehicle in question were anywhere near the car park on 29/10/2016 and the defendant puts it to strict proof that the claimant furnish any evidence at all of a parking event on that date that lead to a claim for a breach of any condition on the signage present at that date.

2. Excel originally wrote to the defendant about a parking event on the xxth May 2012 which is before the POFA was entered onto the statute books and as the defendant denies being the driver at that time and as no keeper laibility exists the defendant puts it to strict proof that Excel show who was driving at the time.

3. the vehicle details given in the claim are not the correct details for the defendants vehicle at that time. the defendant denies any association with the vehicle identified in the claimants witness statement.

4. the claimant states they are a member of the Independent Parking Committee and adhere to their code of practice. the IPC did not exist in 2012 and their claim to be a member of the Independent Parking Committee is likewise unture, that is the registered name of a private limited company only registered in december 2016 that is not an Accredited Trade Association so they cannot be a menber nor abide by its code of Practice. The owners of the International Parking Community, (an ATA) has threatened legal action against any company claiming such membership as passing themselves off as a member of the latter.

5 the claimant has failed to show any cause for action against the defendant on the date specified in the claim as they have not created a kepper liability and indeed state that they are not claiming one. however they then go on to state that they are claiming from the keeper when the POFA 2012 specifically disallows this unless certain conditions are met and these have not been met.

6. The claimant is asking for costs that are any recoverable from the driver as the POFA limits any claim from the keeper to be no more than the amount specified on the Notice to keeper and agin only if specific conditions are met. This means that there is no lawful method of adding the amounts specified in the claimants witness statement ar points 29.2 and 32, where the disparity in the amount claimed is also noted.

7 the claimant has failed to produce any evidence that a notice to keeper was issued at all. This is in breach of the POFA and also a breach of civil procedure rules.

8 In any case, the signage at the site is so porly lauid out and with such small and conficting text and clashing colour it cannot be said that it makse for an offer of a contract to park with certain conditions adn a motorist passing these signs would be unable to consider such an offer. The £100 damages for breach of contract is not part of the core terms of aprking and even then what constitutes a breach of conditions cannot be determined by reading the signage. For this reason the defenadnat states that no such brach occurred and that the contract is unfair and unenforceable

for all of the above reasons the defendant states that they believe that the claim is totally without foundation and as it contains so many errors in matters of fact it is nothing more than an attempt to use the courts to try and profit from harassment or coercion rather than an attempt to recover an actual debt. for this reason the defendant asks that the claim be struck out in its entirety as being unreasonable conduct and requests a full costs recovery order under CPR 27.14.2(g)

now what you need to do is put together a bundle of documents and pictures that show the sigange back in 2012 (they ahve apicture you can use, no mentuion of being an IPC member on their sigange so again a breach of the POFA if they insist on saying it was in 2016) and what it looks like today. You take copies of all the correspondence you ahve received in case they realise their cock up and try and resubmit an entirely now claim to get around this glaring error.

You take some evidence of what vehicle you had at the time so it can be seen that it is not the same reg as the subject of their scribbles.

You can write a separate document rebutting all of the points that are wrong and submit is with your WS and other evicence. This will allow you to go into detail without detracting from the main points so rubbish them abotu the discounted amount on the sign not being offered, the lack of clairity regarding the siganage

now digest the layout of the above and add points to refer to what other documents you wish to rely on and copies of those should be numbered and nicely laid out in order in your evidence bundle.

Where there is a previous case you can refer to do so in the rebuttal doc and again copy the origianl source material.

You will need to send a copy of everything to court and to the claimant by the date given to you but dont send it too far in advance to the claimant or they will be changing their story. making sure it arrives on the last date allowable is preferable

Hi I've just seen the information you have sent thank you very much, I have sent you my defence but I had not seen your points before hand , sorry.

I've taken out all personal details. What do you mean as a text box ? do you mean just cut an paste all the text on this site ?

Yep. Obviously after removing anything that identifies you personally, case numbers, vehicle registration etc.

Particulars of claim

I will try to reply to claimant using their numbering system where possible.

1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimants case :

a)The Defendant does not recognize the date of the alleged parking contravention in para 1 of the Claimants particulars of claim.

The Operator did not identify the driver and since the incident occurred prior to the Protection of Freedoms Act 2012 there can be

no Keeper Liability.

The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available

allowing a private parking firm to hold a registered keeper liable.

The claimant cannot surely hold the registered keeper liable, only the driver, of which no evidence has been produced.

This distinguishes the case from Elliot vs Loake, in which there was irrefutable evidence of the drivers identity.

Further, Elliot v Loake was a criminal case, which has no bearing on a civil matter, as Elliot was prosecuted for S.172, which cannot apply here.

b. The Operator is not the land owner and therefore has no standing

c. The Operator had no capacity to offer a contract with the Defendant

d. The signage did not offer a contract with the Defendant

e. No consideration passed from either the Operator or the Defendant

f. The Claimant has disclosed no cause of action to give rise to any debt

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

2. The Defendant denies that she was driver. The incident occurred before the Protection of Freedoms Act 2012 and therefore there can be no 'keeper liability'.

The Operator therefore has no right to pursue the Registered Keeper for payment when it cannot identify the driver; the Defendant is also under no obligation

to disclose who was the driver even if the Defendant could recollect who was driving on a particular day more than six years ago..

3. The Particulars of Claim state that the Operator managed the car park on behalf of the Douglas Greg (Keighley) Ltd . The Operator was not therefore the Land-owner.

Since the Claimant is not the landowner, it has no standing to file for damages.

The land-owner that the claimant had a lease with changed names in 2013 and no evidence has been offered to show that the lease was renewed after 2010 under the same terms.

4. The Defendant was not the '' registered keeper and/or driver of the Vauxhall Astra bearing vehicle registration mark (VRM) xxxxx (the vehicle)''

nor does she recognise the dates claimed in section 1.

5.The Defendant denies being the driver of the vehicle on the contravention date and the Claimant has failed to produce any evidence to prove otherwise.

6. 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" (POPLA report 2015).

7. The Claimant has stated in the Particulars of Claim that there were many clear and visible signs. The Defendant is in no position to confirm what signs were in

place more than six years ago.The Defendant was unaware of the content of any signs until alerted to it by the Operators Parking Charge Notice.

A clear sign stating the terms and conditions at the entrance to the car park is a specific requirement of the British Parking Association Code of Practice that the

Claimant is required to follow. The Defendant refers the court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by

a driver entering the car park this is clearly not the case from the evidence given.

8.The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. None of the elements that are fundamental to a contract

were present and therefore no contract could possibly have existed. The driver was, at the most, granted a licence to park. Whatever the conduct was that the Claimant alleges,

a breach of a licence would be trespass, not a breach of contract. It could only be pursued by the land-owner.

Whether there was a contract or a licence, only the Land-owner has standing to bring a claim, not the Claimant.

The Defendant has no idea what terms and conditions were stated on the signs as its too small and unclear from the evidence given but disputes the Claimants statement that

such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable

belief that the Operators intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to

enforce a penalty. The Defendant refers the court to 3YK50188 : Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in

almost identical words (21 February 2014).

The court is invited to consider whether a document titled Parking Charge Notice would ever be sent between the parties to a genuine contract. The Claimant's claim for

Breach of terms and conditions and recover the charges and additional costs incurred further confirms that the sum is neither a contractual term nor a genuine assessment of

pre-liquidated damages but a penalty. It cannot therefore be recovered under contract law.

The Claimant has stated that, as a result of the Defendants conduct, a charge was incurred. Notwithstanding that the Defendant does not know if she was the driver, the

Claimant has given no indication of the nature of the alleged conduct in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.

The Defendant refers the court to the tests suggested by the House of Lords in Dunlop Pneumatic Tyre v New Garage & Motor Co. Ltd (1915) and Lordsvale Finance plc v Bank of Zambia

to determine if the sum is a penalty or a genuine pre-estimate of damages. The Defendant also refers the court to O.B. Services v Thurlow (Worcester County Court 2011) and

Excel Parking Services v Hetherington-Jakeman (2008) that involved similar facts to the present case.

The British Parking Association Code of Practice S.34 states that parking charges must be fair, reasonable and a genuine pre-estimate of the loss to the parking company.

The Defendant asserts that the Claimant has also ignored the Governments official position on parking charges as expressed clearly in the Department for Transport Guidance on

the Recovery of Parking Charges :

Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are

likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to

recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimants loss. The Claimant has at no time provided an explanation how the

sum has been calculated.

9. and point 27 - 29.1 - 29.2 The Claimants images of the signage offered as evidence of the Terms and Conditions, it states a £100 charge is reduced to £40 yet the Claiment

has claimed more than this in the NTK. The core terms of the sign don't say anything about a charge being payable for not buying a ticket and the small print is not clear,

this is an unfair contract under S62 of the Consumer Rights Act.

29.2 POFA says only the original billed in the NTK applies to keeper. The claiment are claiming £60 in costs agreed if they were suing the driver but at point 31 they say

the sum is £54. They both cant be right.

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.

I request the court strike out this claim for the reasons stated above

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

IMHO a bit too wordy

99% of that is for your witness statement.

dx

Ok I thought so, I'll size it down and use more of ericsbrother comments.

I put it all together tonight sleep on it then send to the court and BWL tomorrow.

BWL also will accept a email with attachements so i'll wait until late in the day to send to them I presume as long as it arrived tomorrow (service day) at BWL its fine.

The court copy will be sent early morning.

Post it up here 1st

as long as its arrives at the court by 4pm you are ok

This is what I intend to send tomorrow: I've put together 4 photos do you need to see them again ?

Particulars of claim

The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimants case :

1. Neither the defendant nor the vehicle in question were anywhere near the car park on 29/10/2016 and the defendant puts it to strict proof that the claimant furnish any evidence at all of a parking event on that date that lead to a claim for a breach of any condition on the signage present at that date.See P1

2. Excel originally wrote to the defendant about a parking event on the xxth April 2012 which is before the POFA was entered onto the statute books and as the defendant denies being the driver at that time and as no keeper laibility exists the defendant puts it to strict proof that Excel show who was driving at the time.

3. The vehicle details given in the claim are not the correct details for the defendants vehicle at that time. The defendant denies any association with the vehicle identified in the claimants witness statement. See P1

4. The claimant states they are a member of the Independent Parking Committee and adhere to their code of practice. the IPC did not exist in 2012 and their claim to be a member of the Independent Parking Committee is likewise unture, that is the registered name of a private limited company only registered in december 2016 that is not an Accredited Trade Association so they cannot be a menber nor abide by its code of Practice. The owners of the International Parking Community, (an ATA) has threatened legal action against any company claiming such membership as passing themselves off as a member of the latter.

5 The claimant has failed to show any cause for action against the defendant on the date specified in the claim as they have not created a keeper liability and indeed state that they are not claiming one. However they then go on to state that they are claiming from the keeper when the POFA 2012 specifically disallows this unless certain conditions are met and these have not been met.

6. The claimant is asking for costs that are not recoverable from the driver as the POFA limits any claim from the keeper to be no more than the amount specified on the Notice to keeper and again only if specific conditions are met. This means that there is no lawful method of adding the amounts specified in the claimants witness statement at points 29.2 and 32, where the disparity in the amount claimed is also noted. See P3

7 The claimant has failed to produce any evidence that a notice to keeper was issued at all. This is in breach of the POFA and also a breach of Civil Procedureicon rules.

8 In any case, the signage at the site is so poorly laid out and with such small and conficting text and clashing colour it cannot be said that it makes for an offer of a contract to park with certain conditions and a motorist passing these signs would be unable to consider such an offer. The £100 damages for breach of contract is not part of the core terms of parking and even then what constitutes a breach of conditions cannot be determined by reading the signage. For this reason the defenadnat states that no such breach occurred and that the contract is unfair and unenforceable. See P4 and P5

For all of the above reasons the defendant states that they believe that the claim is totally without foundation and as it contains so many errors in matters of fact it is nothing more than an attempt to use the courts to try and profit from harassment or coercion rather than an attempt to recover an actual debt. For this reason the defendant asks that the claim be struck out in its entirety as being unreasonable conduct and requests a full costs recovery order under CPR 27.14.2(g)

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

Now you are including piccies and paperwork as well,

the date on the origianl paperwork will destroy their claim and WS and probably get them an earwigging for incompetence as well if it gets that far.

I can see them discontinuing about a week before the hearing, even the day before so make sure that you have blocked their email and phone numbers so they cant do this with impunity

Thanks for all your help. I'll let you know what happens next. Sending paperwork to court now and BWL later today so they have no time to get back.

the other thing you can still do is ask the local council if Excel had planning permission for their signage and equipment back in may 2012 under the advertising hoardings regs of the town and country planning act 2007.

You can add that on if they ahvent to the lack of contract as no PP- criminal behaviour and you cant agree to participate in crime. so no contract entered into