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    • nothing you can do can product against the very rare judge lottery syndrome.
    • not sure why you added the blue line I've highlighted? that's no in the we gave you.   as for your question... PRAC's roboclaim computer knows when the account was taken out, after all it raised the claim and checked everything carefully first before issuing the request via northants bulk courts equally inept roboclaim computer... 
    • I've been researching in preparation of compiling my particularised defence/WS.    I'm none too happy that some judges still seem to be siding with DCAs and seemingly brushing aside anything that we have assumed to be "necessary" for DCAs to have a winning case.    Reading a recent "summary" from another poster (another thread with case similar to mine - very old, illegible application form, no default notice, reliance on their own software to prove it was ever sent) and the judgment made in favour of the DCA and even suggesting that there was no "agreement with the DCA, they simply owned the debt, not the agreement"  Makes me very nervous.    Especially if cases like this will be judged on "probability" - the probability that if I signed the original application form, then I must have taken out the credit card and racked up the alleged debt as shown in statements enclosed in their WS (and dated some ten years later).   Is it ok to post some "evidence" I've found from elsewhere?    This is in line with my fears that regardless of how hard one tries to rebut the "lack of evidence" produced by DCAs for chasing these very old "alleged" debts, it does appear to come down to the luck of what judge you get on the day and how much they can be swayed by the DCA solicitor.    A quick Google search produced the following - from one case - this related to a credit agreement - which resulted in someone being made bankrupt - that person appealed the bankruptcy order on the grounds of defective credit agreement and default notice and this was the appeal judge's decision:   The necessary formalities for the entry into the regulated consumer credit agreement (which related to the debt in issue) were not complied with; The default notice served in respect of that credit agreement was defective.   The First Ground The Appellant argued that she did not receive the terms and conditions when she entered into the credit agreement and, accordingly, section 61 of the Consumer Credit Act 1974 (“CCA”) had not been complied with and the agreement could not be enforced. The agreement had been entered in 1995 and, whilst it had provided a microfiche copy of the front page of the application, the Respondent had been unable to provide a copy of the terms.   Despite the terms not being produced, the District Judge had found that, in the circumstances, it was very likely that such terms existed and would have been provided to the Appellant when she entered into the Agreement. Mr Justice Mann held that this was a finding that the District Judge was entitled to make.   Further, Mr Justice Mann found that it was implicit from the District Judge’s findings that she considered that the terms and conditions not only existed but had been subscribed to by the Appellant’s signature and, consequently, the requirements of section 61 CCA were fulfilled. Mr Justice Mann held that this was also a justifiable finding which should not be interfered with on appeal.   The Second Ground The Appellant also argued that the default notice upon which the Respondent relied did not comply with the Consumer Credit (Enforcement, Default and Termination Notice) Regulations 1989 because it stated the full balance of the account rather than the total of the missed payments. The Respondent argued that, as a result of the missed payments, it was contractually entitled to the entire balance subject to the service of the appropriate notice, a requirement which was fulfilled by the default notice itself and, consequently, the sum required to remedy the breach was the entire amount.   Mr Justice Mann agreed with the Respondent and the District Judge, holding that: “If by the time the default notice is served circumstances have arisen which entitle the lender to recover not merely sums which might be regarded as arrears, by which I assume is meant accumulated minimum payments, but also the whole of the sum, then they are entitled to claim that sum, and the sum to require to remedy the breach for non-payment of that sum is the payment of the whole sum due. The bank is not confined, at that stage, to claiming merely the amount of arrears if it has an accrued contractual right to have the whole of the sum.”   Do judgments like these not mean that a lot of what you guys do on here (and for which I and many others are VERY grateful) somewhat redundant. What is happening to judges just accepting "well, the terms must have been there if you signed it" -    Feeling quite nervous now.
    • we know it wasn't done to avoid enforcement we understand completely. but that doesn't take from away the fact that it happened   you can't appeal the pcn's on the basis that 'it was not his vehicle to levy upon'. the law clearly states otherwise.          
    • here is a question for you, is yu house divided up into a retail/business area  and domestic area for business rates purposes? If not why on earth are you paying business water rates? ceertainly not for tax purposes as you can claim any legit expense without having to reclassify your home as a business premises. i would be stopping this nonsense and goping back to whatever water supplier is the domestic one for your area. there is stuff all they can do to get the £40 from you whan you do that.
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Wi3347

Millennium parking services/Gladstones claim form - PCN Metropole Chambers, Swansea

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I will look into this one more over the coming days but after the spanking i just had at court over submitting a 2 line defence i will be putting more for the defence of this. Such as deny i am the driver and quoting some CPR rules. The judge was not willing to accept anything in court that I had'nt mentioned in my defence at the first opportunity.

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it wasnt your 2 line defence that caused you the trouble, you make it clear that the judge had failed to follow court procedures and misdirected themselves BUT when you do your witness statement it must contain everything you want to say and be a filling out of the short version rather than a different one.

 

Now the short version on the AOS should satate that you were not the driver at the time if this is the case.

you are not allowed to ambush the other side even though Gladdys and BW try this all the time.

 

 

Also, never speak to the other side's rep beforehand, hit thin in the court with your challenge under rights of audience rather than discuss anything before time.

Do not accept any chats, extra paperwork or whatever.

If they try and give you more evidence tell them to hand it to the clerk of court.

 

If you refer to case law then you dont have to send copies of great big books to the court but you must ahve it available so it can be looked at.

It is not clear yet from your other thread whether you referrred to everything in your WS and submitted this in time or took it all along with you.

 

By all means add more detail to the defence in the AOS stage but the main point is to say why you dont owe the money so that doesnt need detail of Smith v Jones 1932 just a line saying no contract offered by signage or whatever.

Edited by honeybee13
Paras

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for defence at this stage im going for:

 

1. The defendant was not the driver of the vehicle on the date of the contravention.

2. The claimant is required under schedule 4 of the Protection of freedoms act 2012, to adhere to a number of strict requirements set out within that act in order to transfer liability to the registered keeper and has failed to do so, therefore the defendant is not liable in this matter as he was not the driver of the vehicle.

 

I dont think there is any point mentioning that a contract was never offered because the signs are prohibitive (permit holders only) and the claim form states "parking charges / damages for breaching the terms of parking on private land" it does not state anywhere on their claim form "breaching the terms and conditions of a contract"

 

I will put this in once people have a look, no point waiting until the last day to submit it

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Ok my use of wording was illustrative,

I would be tempted to include it as well, even saying

" in any case, the wording on the signage was confusing and contradictory so cannot be said to bea genuine offer of an offer to form a contract".

 

As they say parking charges then you should make it clear that there was no taiff of charges to refer to nor any way offered to pay the prescribed fee if it was deemed to be a contract and that the offer was accepted.

 

bullet points for each argument,

there are plenty of cases to refer to (even if your judge doesnt want to read them.

They are not compelling but should be persuasive,

 

 

a point to make in your WS where you mention them What is the rank of your judge?

If they are DDJ then they have to take the decisions of the higher grade judges into account

 

 

so go through your paperwork,

see who made the decisions on the other cases and if they outrank your judge then put that in your WS and also mention it in your appeal.

They dont have to follow a persuasive case but they will have to show that they have a reason to reject it if for example it was from a HHJ and they are only DDJ or they will be out of a job pretty soon.

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the initial online defence im going to submit tomorrow is

 

The whole claim is denied in its entirety for a number of reasons which will be expanded upon in my witness statement should this claim be allocated to the small claims track.

 

1. The defendant was not the driver of the vehicle on the date of the contravention.

2. The claimant is required under schedule 4 of the Protection of freedoms act 2012, to adhere to a number of strict requirements set out within that act in order to transfer liability to the registered keeper and has failed to do so, therefore the defendant is not liable in this matter as he was not the driver and POFA 2012 has not been complied with.

3. The wording of the signage at the location is confusing and contradictory so cannot be said to be a genuine offer of an offer to form a contract. The claimant states the claim is for "parking charges" yet at the location there is no tariff of charges to refer to nor any way offered to pay the prescribed fee if it was deemed to be a contract and that the offer was accepted.

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thinking of putting in there that they are claiming for additional monies they are not entitled to and not explaining how they have arrived at that figure.

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thinking of putting in there that they are claiming for additional monies they are not entitled to and not explaining how they have arrived at that figure.

 

It doesn't matter how they justify it-the extra charge are unlawful.

POFA 4 [5] explains- The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)© or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).

In addition, the OFT made it quite clear years ago that debt collectors could not add fees as they had no contract with an alleged debtor.

http://webarchive.nationalarchives.gov.uk/20140402161315/http://oft.gov.uk/shared_oft/consultations/OFT664Rev_Debt_collection_g1.pdf

3.11 Examples of unfair or improper practices are as follows:

a. misleading debtors into believing they are legally liable to pay

recovery charges when this is not the case

The FCA who have taken over from the OFT have confirmed that they agree with the OFT Guidance on Debt Collection.

 

I expect it would also fall foul of the Consumer rights Act 2015

62Requirement for contract terms and notices to be fair

 

(1)An unfair term of a consumer contract is not binding on the consumer.

(2)An unfair consumer notice is not binding on the consumer.

(3)This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so.

(4)A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

(5)Whether a term is fair is to be determined—

(a)taking into account the nature of the subject matter of the contract, and

(b)by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.

(6)A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.

(7)Whether a notice is fair is to be determined—

(a)taking into account the nature of the subject matter of the notice, and

(b)by reference to all the circumstances existing when the rights or obligations to which it relates arose and to the terms of any contract on which it depends.

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urm..we've never seen CRA play a part before..interesting...


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this is where a distinction between a contractrual obligation and a breach of contract becomes more relevant.

 

If the plaintiff is claiming that the signage allows them to recover additional costs then that is a contractual matter to be taken up with the driver.

 

 

If they are saying you breached a contract and thus owe them money for that breach then they cant claim for any additional amounts under that contract

 

 

the POFA makes it clear that the keeper liability is limited to the amount claimed and cannot include monies that may be due as a result of a contract between the driver and the claimant as thery arent suing the driver.

 

So, in short, the additional amounts are not justifiable under contract law, the POFA or the CCR's

Edited by honeybee13
Paras

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urm..we've never seen CRA play a part before..interesting...

 

If you don't ask.........................

I think that much of the parking companies contracts are unfair.Especially where the motorist has paid and then is charged for some minor nit picking misdemeanour that the parking companies deem should be rated so seriously that £100 is a legitimate fee.

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it all boils bown to whether the charges are a contract designed to put right a wrong or whether the terms are designed to deter people from taking an action such as parking or overstaying. That was made clear as part of the Beavis determination

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Based on advice I've got from other sources I will be submitting a much more detailed defence as it appears the advice to submit a 2 line defence is proving fatal in some cases.

As it was in my other thread.

 

 

You may get a sympathetic judge who has had enough of these parking companies and is on your side.

You may get what I had where the judge said what I submitted as my witnesses statement should of been in place of defence as the claimant had loads of time too pull apart the basic 2 line defence in so many ways that by the time we got to my WS the damage was already done

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I wouldn't argue against that point but that is not how it is supposed to work.

If it was the case every particulars of claim would have to be 45 pages long rather than a short paragraph and there wouldn't be any regulation or orders on witness statements.

 

You got a bad judge but as it is likely you will get the same one then it does make sense to go with the flow.

 

Some judges are absolutely unfathomable,

I once had one who decided that it was for the public good that a parking meter was set 13 minutes fast as it made people hurry back and thus leave in time when they thought they were late.

 

The observtion that all the other clocks in the world showing the right time would make you get an unjustified ticket issued early didnt impress him and my use of maths to prove his arguments fundamentally flawed made him go off on one.

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The whole point I think of using a two line complaint is that there is sufficient detail there to grant a hearing but not enough to forearm the parking company to all the deficiences in their case for them to alter their paperwork prior to the Court case.

The Witness Statement is where one goes to town with them pointing out to the Judge why their case has no merit and it is there that one should concentrate .

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