DEAL court claim received

A question about : DEAL court claim received

Hi,
Please can anyone help me with my defence of a court claim received last week? It relates to a Coop car park parking charge, at the end of Oct 2012. I ignored all letters as this seemed to be advice at the time (obviously a mistake after the changes).
I've sent the acknowledgement of service. I've contacted the Coop - they won't help. I've reported suspected bogus solicitor, Mr Shwarts.
I've spent this last week reading stickies and previous very helpful relevant threads. My circumstances seem very similar to a thread by bluetoffee1878 on 24/11, where an outline defence is shown. (I was hoping to use this as a template for my own defence.)
I have 3 questions I'd really appreciate some help with.
I think the car park was a free 2 hour stay, and had automatic cameras at the entry/exit. I do believe I was actually parked in the parking bay for the 2 hours, but being new to the area, and meeting someone there, I drove around a while looking for them, so the time on leaving was 12 minutes over. What is the best way to present this in my defence statement? Also, is it worth requesting evidence that the camera was properly maintained and accurate?

I've noticed references to the witness statement, submitted at a later date. I'm feeling very scared about appearing in court, and messing things up - could anyone explain how this differs from the defence statement, please? When does it have to be submitted?

In bluetoffee's thread there is a reference to the 'notice to keeper sent being non compliant with Protection of Freedoms Act' I have studied the Act at the relevant section but still unclear why it would be non compliant - can anyone explain?

Finally - I'm worried about the xmas post delaying my submission - as I received the claim form by post, is it possible to submit the defence statement online?

Thanks for reading (and apologies if I've inadvertently not followed forum etiquette).

Best answers:

• Thank you Coupon-mad. That's brilliant - so very helpful. I didn't think to read the POPLA appeals (doh!), but of course they will be relevant.
  I will use bluetoffee's defence as you suggest, and adapt it with the additional points you have indicated in the links.
• Good luck and I hope you have a good outcome.
  On the issue of Mr Shwarts, check out the parking pranksters Twitter , it would appear that the SRA fraud have escalated the investigation
  Please feel free to use anything in the defence I posted that you think is relevant, it was all put together with the help of the regulars on here and if it helps you then I have repaid a very small part of the debt I owe these wonderful people
• Many Thanks bluetoffee. I found your defence statement very thorough, clear and easy to follow. There are some legal points I need to study and get to grips with. I am in the process of adapting it to my own circumstances and will post a copy when drafted.
• Here's my first attempt at a defence statement using bluetoffee's format and adding the helpful points from Coupon-mad. I have tried to highlight where I have made changes to bluetoffee's defence, in blue. As the overstay was short I have emphasised the BPA code of practice, and camera reliability.
  Do I need to cite more relevant cases at this point, or wait until the witness statement? Any advice gratefully received.
  DEFENCE STATEMENT
  Initial Defence to Particulars of Claim
  1.!It is denied that the Claimant entered into a contract with the Defendant. Under civil law, any contract must be formed by offer, consideration both ways and acceptance. The Claimant is a third party agent of a private!parking!company (Civil Enforcement Ltd) who was simply contracted by the landowner to provide car-park management services. The claimant therefore is not capable of entering into a contract with the Defendant on its own account. Accordingly, it is denied that the Claimant has any standing to bring this claim in their own name.
  2.!The defendant did not receive a letter before claim which does not comply with practice directions.
  3.!Part of the alleged debt (87.5%) was apparently assigned to Debt Enforcement & Action Ltd by Civil Enforcement Ltd. The claimant therefore cannot claim for the whole alleged amount, or any sum at all since all parties to the alleged debt must be listed as claimants.!Further, this is not a 'debt' at all. There was no credit agreement so the defendant has never consented to the possibility of' assignment' which has taken place unilaterally and is unenforceable.
  4.!The N1 claim form has been signed off by a Mr. M. Shwarts (Solicitor); the SRA have confirmed that this person does not appear to be listed as a solicitor on the SRA roll. It is a criminal offence for somebody to call themselves a solicitor or act as a solicitor if they are not on the roll of solicitors. It is therefore denied that the Ј50 solicitor's fee can be claimed. Also the full claim is denied as the claim has not been signed by either the landowner or the landowner's solicitor. The defendant has alerted the SRA who have replied via email that details of this claim have been forwarded to their Fraud Intelligence Unit for Investigation.
  5.The defendant denies that there was an overstay for the parking period. The entry and exit times are not proof of parking. Further, the British Parking Association code of practice October 2012, of which the car park operator is a member, allows for a reasonable time for drivers to decide if they are going to stay, and additionally allows for a reasonable time after the parking period has ended for drivers to leave the car park. (page 10, para 13, point 13.1 to 13.4)
  5a.!The Defendant denies the accuracy of such ANPR equipment in that the' time stamping' of such equipment is controlled via the internet to remote servers where a delay would exist.
  The claimant is put to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one; the manufacturers' stated % reliability of the exact ANPR system used here, the dates and times when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer that stamps the photos, and generally maintained to ensure the accuracy of the dates and times of any ANPR images.!
  6.!The claim does not differentiate between a breach, trespass or a contractual charge so therefore does not disclose what conduct is complained about, therefore discloses no cause of action. If the claim is for a breach of contract or trespass then the claimant may only claim for their losses due to said breach. If the claim is for a contractual charge then the defendant submits that it is a contractual charge disguised as a penalty.
  7.!The claimant's notices do not create any contractual relationship between the claimant and motorists using the car park.
  8.!The car park is a free car park and as such there can be no loss suffered by either the claimant or the landowner as a result of any alleged overstay. The charge of Ј260 (plus other fees) is therefore not a genuine pre-estimate of loss.
  9.!The claimant has not provided enough information to enable the defendant to fight this claim. The claimant requires to see what alleged contract was broken (i.e. the signage), also the Notice to Keeper sent as it is the claimant's submission that any contract was unfair and unsupported by consumer law.
  10.!There can be no keeper liability because this Claimant has never issued Notice to Keeper letters which are compliant with paragraph 9 of Schedule 4 of the POFA 2012. Therefore the 'second condition' for keeper liability has not been met (…) It was the will of Parliament when the Impact Assessment of the POFA 2012 was discussed in 2011, that keepers are not legally obliged to name a driver- even if known. So the defendant cannot be held liable in law.
  11.!The defendant requests that the claim be stayed until the claimant provided the following information, which should have been part of the initial particulars of claim and would have been requested had the claimant obeyed practice directions and sent a letter before claim
  a) A copy of the alleged contract (signage) at the time of the!parking!event
  b) A copy of the notice to keeper
  Without these, the defendant cannot fully defend the claim.
  12.!The Defendant relies on the ruling of Mr Recorder Gibson QC in the case of Civil Enforcement v McCafferty (3YK50188, Luton County Court on Appeal from Watford County Court, 21/02/2014) in which it was held that the primary purpose of CEL's 'parking charge' was to deter, and that!it is therefore a penalty!in terrorem!which is irrecoverable through civil action.
  This claim is without merit; it is vexatious and unreasonable in the extreme and I invite the court to strike it out without wasting time on a hearing. Further, I intend to claim my full costs and expenses and trust the court will agree.
  The above points will be explained fully in the Witness Statement which will be served not later than 14 days before the date of any hearing.
  I believe that the facts contained in this Defence Statement are true.
  ……………………………………….. Date
  (Defendant)!
• Looks good to me.
• Just an update. Case has been allocated to a local court.
  The judge has ordered that the claimant:
  Identify the full details of signatory to the claim form and evidence he is a solicitor;
  Identify full details and employment status of signatory to the directions questionnaire;
  Serve amended particulars showing its claim in contract to include full particulars of alleged notices giving rise to the contract;
  How and when any assignment to the claimant of any other party's alleged rights against the defendant occurred;
  Whether any notice of assignment is alleged to have been given to the defendant, and provide a copy;
  The legal and factual basis for its claim in trespass, given it does not appear to own the land, and how it has calculated its claim for damages of trespass;
  If the claimant fails to comply within 2 weeks the court will consider striking out the claim.
  I have a few questions if anyone can help, please.
  I didn't receive a copy of the directions questionnaire - should I let the court know this now?
  This judge seems to be on the ball, so I am hoping it will work in my favour.
• all the judges are now reading about DEAL and Mr Swarts (or people with similar names) , the cases are being kicked out.
  I am just waiting for one judge to sort this out with the police/SRA or other powers and have those fraudsters in court for lying and contempt/perjury.
• They do not send the DQ to the defendant (but they should). Write to the court and point this out.
  I'm not aware of them complying with CPR in any of the claims they have made.
  They will also not pay the hearing fee, wait till a day or two after the deadline (normally a month before the hearing) and phone the court to ask if they've paid
  Also check out the pranksters latest blogs on CEL / DEAL. There is some more ammo for you to share with the court in your letter regarding no DQ.
• This may be interesting for you:
  hxxp://parking-prankster.blogspot.co.uk/2015/02/deal-or-no-deal.html
  (Change hxxp to http - I can't post links yet).