Hi all,
DCBLegal has issued a claim against me. I have drafted a defence and am also going to counterclaim for damages, since in my previous communication with them, I clearly told them I had a disability protected under the Equality Act and that their heavy handed letters, along with their failure to reply to my letters in a meaningful was was exasperating my condition.
I'd be really grateful if someone would be able to look over the draft defence and offer any advice on improvement. I can't find any precedents set on successful counterclaims, so could do with a little guidance.
Many thanks in advance!
ToastySocks
In order to offer meaningful advice we will need to see documents, and receive something of a timeline of what has happened to date (any appeals against the original PCN, correspondence between you and DCB legal, the claim form, etc.).
With claims involving DCB Legal, they nearly always discontinue before the hearing. However, if you persist with a counterclaim, they might not (on the basis that if they have to send someone to defend the counterclaim, that same person might as well argue their case on the core claim).
Ok, bear with me. I will post some documents, but I just need to redact some info.
You make a good point about the counterclaim - I'll await and see what you think once you have the full information.
It is not a “Summons”. What you have received is a money claim for an alleged debt arising from an alleged breach of contract by the driver. This is a civil contract dispute. A summons, by contrast, is issued only in relation to an alleged criminal offence.
As explained above, do not file a counterclaim if your aim is to defeat this claim outright. Any attempt to sue them for “damages” is highly unlikely to succeed, as the threshold for such a claim is extremely high.
Thank you for correcting my terminology, you are of course correct.
Please find attached a copy of the claim form, and a copy of the letter that I sent to them a while ago. They responded to the letter with a copy of the appeal rejection and template letter and refused to acknowledge any of my points, and continued to send aggressive letters.
https://ibb.co/nMBpcg1Jhttps://ibb.co/tpGmTwYx
That letter you sent unfortunately undermines one of your own arguments - you seek to argue that they have failed to comply with the Protection of Freedoms Act, but in the same letter you tell them that you were driving, which means they don't need to rely on PoFA and can pursue you as the driver.
No matter, whats's done is done, DCB Legal are still likely to discontinue. What have you drafted by means of a defence? If you haven't already, it would be sensible to look at other DCB Legal cases on here.
I guess my defence was on the basis that they have abused the court process by ignoring the settlement offer?
I'm very behind on everything - just about to do the AOS - do I have to 'contest jurisdiction' or no?
Stop trying to do this without the knowledge required to do it properly! You have already scuppered part of any defence in your response to the LoC by blabbing that you were the driver!
You DO NOT dispute jurisdiction for the AOS. Just STOP whatever it is you are doing for the AoS, especially if you are trying to use the paper form and follow this advice to the letter if you don't want to FUBAR this!
With an issue date of 21st November, you have until 4pm on Wednesday 10th December to submit your defence. If you submit an Acknowledgement of Service (AoS) before then, you would then have until 4pm on Wednesday 24th December to submit your defence.
You only need to submit an AoS if you need extra time to prepare your defence. If you want to submit an AoS then follow the instructions in this linked PDF:
https://www.dropbox.com/s/xvqu3bask5m0zir/money-claim-online-How-to-Acknowledge.pdf?dl=0Until very recently, we never advised using the MCOL to submit a defence. However, due to recent systemic failures within the CNBC, we feel that it is safer to now submit a short defence using MCOL as it is instantly submitted and entered into the "system". Whilst it will deny the use of some formatting or inclusion of transcripts etc. these can always be included with the Witness Statement (WS) later, if it ever progresses that far.
You will need to copy and paste it into the defence text box on MCOL. It has been checked to make sure that it will fit into the 122 lines limit.
1. The Defendant denies the claim in its entirety. The Defendant asserts that there is no liability to the Claimant and that no debt is owed. The claim is without merit and does not adequately disclose any comprehensible cause of action.
2. There is a lack of precise detail in the Particulars of Claim (PoC) in respect of the factual and legal allegations made against the Defendant such that the PoC do not adequately comply with CPR 16.4.
3. The Defendant is unable to plead properly to the PoC because:
(a) The contract referred to is not detailed or attached to the PoC in accordance with PD 16, para 7.3(1);
(b) The PoC do not state the exact wording of the clause (or clauses) of the terms and conditions of the contract (or contracts) which is/are relied on;
(c) The PoC do not adequately set out the reason (or reasons) why the claimant asserts the defendant has breached the contract (or contracts);
(d) The PoC do not state with sufficient particularity exactly where the breach occurred, the exact time when the breach occurred and how long it is alleged that the vehicle was parked before the parking charge was allegedly incurred;
(e) The PoC do not state precisely how the sum claimed is calculated, including the basis for any statutory interest, damages, or other charges;
(f) The PoC do not state what proportion of the claim is the parking charge and what proportion is damages;
(g) The PoC do not provide clarity on whether the Defendant is sued as the driver or the keeper of the vehicle, as the claimant cannot plead alternative causes of action without specificity.
4. The Defendant submits that courts have previously struck out materially similar claims of their own initiative for failure to adequately comply with CPR 16.4, particularly where the Particulars of Claim failed to specify the contractual terms relied upon or explain the alleged breach with sufficient clarity.
5. In comparable cases involving modest sums, judges have found that requiring further case management steps would be disproportionate and contrary to the overriding objective. Accordingly, strike-out was deemed appropriate. The Defendant submits that the same reasoning applies in this case and invites the court to adopt a similar approach by striking out the claim due to the Claimant’s failure to adequately comply with CPR 16.4, rather than permitting an amendment. The Defendant proposes that the following Order be made:
Draft Order:
Of the Court's own initiative and upon reading the particulars of claim and the defence.
AND the court being of the view that the particulars of claim do not adequately comply with CPR 16.4(1)(a) because: (a) they do not set out the exact wording of the clause (or clauses) of the terms and conditions of the contract which is (or are) relied on; and (b) they do not adequately set out the reason (or reasons) why the claimant asserts that the defendant was in breach of contract.
AND the claimant could have complied with CPR 16.4(1)(a) had it served separate detailed particulars of claim, as it could have done pursuant to PD 7C, para 5.2, but chose not to do so.
AND upon the Court determining, having regard to the overriding objective (CPR 1.1), that it would be disproportionate to direct further pleadings or to allot any further share of the Court’s resources to this claim (for example by ordering further particulars of claim and a further defence, with consequent case management).
ORDER:
1. The claim is struck out.
2. Permission to either party to apply to set aside, vary or stay this order by application on notice, which must be filed at this Court not more than 7 days after service of this order, failing which no such application may be made.
Thanks, I have completed the defence submission. Will keep you updated.
Like x 1
View List