Letter Before Claim - Own Bay PCN

The managing agent has now asked PPC to cancel the charge. However, PPC confirmed that they wont cancel as it is with the Court and can only be settled if I pay £180 in order to cover their costs.

I am writing to PPC saying their principal has instructed to cancel the charges incorrectly issued against me and therefore have no claim against me and to continue to court would therefore be unreasonable behaviour on their part.

Is there any legal reference to support my above statement?

Half_way wrote: »

You must get some sort of written confirmation form the management company that they have asked their agents to cancel, you will then need to use this in court as evidence of unreasonable action.

I have been copied in an email from Management Company to their Parking agents.

I have now draft my defence for experts review. I will really appreciate your valuable comments. (I have posted the same on Pepipoo forum too)


Claim Number xxxxxx

Claimant vs Defendant

1. The Defendant denies any liability to the Claimant whatsoever

2. The Claimant states that they are authorised to manage the Car Park by their Principal client XXX Management Company. However, there is no case to answer as the Principal has instructed the Claimant to cancel the charge as there is no cause of action against the Defendant.
The Defendant has reminded the Claimant of their behaviour & actions which are unreasonable.

3. Additionally, The ABC Property Management Company has confirmed that Claimant itself has failed to comply with the strict rules of car park maintenance and received number of complaints like targeting residents & leaseholders. As a result, Management Company who then have decided to cancel the Claimant’s contract taking away all access rights for the car park.

4. The Claimant has not complied with the pre-action protocol. The Particulars of Claim contain no concise details and fail to establish a cause of action that would support the Defendant to prepare a specific defence. It just states a claim for “parking charges and indemnity costs if applicable” which does not give any indication on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was, whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees', or anything that could be considered a fair exchange of information. The defendant wrote to the Claimant on the 24th October 2016 with a Part 18 request to identify the heads of action on which the claim is based but the claimant refused to answer.

5. I submit that issuing Particulars of Claim lacking in usable detail or that do not disclose a clear cause of action is not only remiss but smacks of a “Cut and Paste” approach to the issuing of proceedings.

The defendant has a reasonable belief that it had not seen any of its client's documents before the claim was issued. Or are any clear times/dates or coherent grounds for any lawful claim particularised, or were any details provided to evidence any contract created or any copy of this contract, or explanation for the vague Particulars of Claim description.

The defendant further believes that the Claimant refused to seek answers to the defendant's reasonable questions because it was inconvenient and not for the reason cited. I further submit that this demonstrates a disregard for the dignity of the court and little concern for the Claimant’s duties in supporting the court to achieve the overriding objective and specifically refer the court to CPR 1.1(2)(a) ensuring that the parties are on an equal footing.

6. The Defendant has a strong belief 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.

7. The Claimant's solicitor is to all intents and purposes identical to the claimant's trade association with a dedicated legal staff and is a serial litigator. They 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. 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.

8. Consequently, the Defendant is unable to defend the claim accurately leaving him to respond and cover all to what are, at best, elusive details.

9. 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.

10. Whilst it is admitted that the Defendant was the registered keeper of the above vehicle at the time of the alleged event it is avowed that the Defendant was not the driver at the relevant time and the Claimant is put to strict proof in this respect. 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.


11. It is denied that the Claimant is the landowner of the property in question or that they have any other right or proprietary interest in the land or any demonstrable intention to occupy it sufficient to support this claim.

12. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner. The defendant has asked the claimant to confirm that it can demonstrate such a chain of authority but the claimant has refused to answer the question. The court is invited to draw the conclusion that the claimant does not have the authority and therefore lacks the capacity to issue proceedings.

13. It is denied that the Claimant has authority to bring this claim. Even if a debt had existed, which is denied, it would be due to the landowner, not the Claimant


14. Notwithstanding the provisions of the existing “easements and rights of way” enjoyed by residents, it is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The Defendant submits that he is a resident and have unfettered right to part in any unallocated car park space governed by his rental agreement.


15. The Claimant states that there were many clear and visible signs. The Defendant denies that signs were clear and visible. The Claimant did not display clear signs within the site that were capable of being read and/or form a contract.

a) There is no prominent signage at the entrance of the parking area.
b) Signage is not lit
c) Being located underground the car park is mostly dark at all times. The defendant also wants court’s attention on issue where site is under maintenance and lacks sufficient lighting.
d) Other signs are raised high up with small text which is difficult to read.
e) The amount of charge is non prominent in the wording on the signage.

The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC, whose requirements they also did not follow. Therefore no contract has been formed with driver and the notices do not provide the 'adequate notice' of the parking charge which is mandatory under Schedule 4 of the Protection of Freedoms Act 2012.

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.

16. In the absence of any signage that contractually bound the Defendant there cannot be any contract and the Claimant has no case.

17. Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Consumer Rights Act 2015. The Claimant is put to strict proof of all his assertions.


18. The Defendant is in no position to confirm or deny the Claimant’s timings. Neither can the Defendant understand why they are relevant. The Particulars of Claim do not give any reason why the Claimant requires a payment other than that it results from the Parking Terms and Conditions on the signage. A registered keeper can only be held liable for the sum in any compliant 'Notice to Keeper' as per Protection of Freedoms Act 2012, Schedule 4

19. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation


20. The Claimant states that the claim results from a contract with the Defendant. The Defendant denies that he would have agreed to pay the original demand of £60 (if PCN Paid within 14 days) to perform the alleged but undisclosed conduct.

The Defendant has no idea what terms and conditions were stated on the signs but disputes the Claimant’s 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 refers the court to the incompetent Particulars of Claim that disclose neither the basis for the claim nor a definite cause of action. The Defendant has the reasonable belief that the Claimant is abusing the court process by using the threat of action to alarm the Defendant into making a payment that is not owed.


21. The amount claimed greatly exceeds the original parking charge, completely unsubstantiated & inflated three-figure sum, vaguely and incoherently adduced by debt collection charges that are not in accordance with the typical advertised charges of such agencies.

The Particulars are not clear and concise, so the Defendant has 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.

The defendant has asked the claimant to confirm that it can produce evidence that such costs were incurred but the claimant has refused. The defendant invites the court to draw the obvious conclusion that the additional costs have not been incurred.


22. 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.

23. I request the court to strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20th September 2016 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''


I believe the facts stated in this defence are true

Hello friends

It took me a while to realise that my case is still on as I was completely out of touch of everything.

I have received a letter from the court confirming the hearing date of 11th April. I have also received a below witness statement yesterday from Claimant along with list of documents they are going to relying upon. While I am preparing my witness statement, I think I still have time till 28th March to send my witness statement and list of documents to other party and the court.

WITNESS STATEMENT - from Claimant

1. I am the Employee of the Claimant Company (‘my Company’) and I am duly authorised to make this statement on its behalf. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

2. Exhibited to this Witness Statement at ‘GSL1’ are following documents which my Company wishes to rely upon;

i) The Agreement authorising my Company to manage parking on the relevant land (as described therein and hereinafter referred to as ‘the Relevant Land’)

ii) The Sign (i.e. the Contract)

iii) The Site Plan

iv) Notices

v) Photographs of the incident

3. The Defendant is liable for a parking charge relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the Schedule below are details of the parking charge;

PCN NUMBER DATE OF CHARGE LOCATION DESCRIPTION

xxxxxxxx

xxxxxx

Not Displaying a Valid Permit


The Defence

4. The Defendant avers they were not the driver. The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. To date the Registered Keeper has been invited on numerous occasions to identify the driver, yet has failed to do so. The Court is therefore invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver.

5. In the alternative, if the Court is not able to infer that the Defendant was, in fact, the driver then the Defendant is pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 (4)(1) of the Protection of Freedoms Act 2012 (‘the Act’) which states: “The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.”

6. The relevant Notice was sent to the Defendant in accordance with the Act and the Registered Keeper (the Defendant) failed to nominate who was driving the vehicle prior to these proceedings (which is required under the Act (paragraph 5(2)).

7. The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.

8. The signs make it clear that a valid permit must be displayed and as evident from the photographs the Defendant failed to display a permit at the time of the incident.

9. The Defendant’s opinion on the fairness of the parking charge cannot impact their liability to pay. Quite simply, in parking in the manner they did, they understood a charge would apply. My Company’s charges are issued in accordance with the guidelines set out by its trade association and are industry standard.

10. Paragraph 108 of the Judgment in the recent Supreme Court case of Parking Eye and Beavis (2015) said “the concept of a negotiated agreement to enter a car park is somewhat artificial but it is perfectly workable provided one bears in mind it is objective...” ... “In our view a reasonable motorist would have agreed to the term.” I submit that the term in my Company’s contract was no more, or no less unreasonable than that in the ParkingEye case.

11. The Defendant alleges that my Company targets certain motorists. This is unsubstantiated and in any case rejected. My Company issues charges to all vehicles that it finds to be parked in a manner which incurs a charge. It would be of no benefit whatsoever to my Company to be selective about which motorists to charge. The fact that another vehicle may not have been issued with a charge would not impact on the validity of a charge issued to the defendant.

12. My Company relies on the case of ParkingEye v Beavis 2015. In that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein.

13. The signs on the Land are clear and unambiguous. By parking in the manner in which they did, the charge was properly incurred.

14. The Defendant has not provided any evidence to support their alleged right to park. My Company has been instructed to manage the Relevant Land and without concession the Defendant has failed to prove otherwise.

15. My Company rejects any argument that the Defendant did not see the sign. It is evident from the site plan that there are sufficient signs.

16. What is more, without concession, even in the unlikely event the Defendant didn’t see the signs I submit they ought to have done so. As Lord Justice Roch observed in the Court of Appeal case of Vine v London Borough of Waltham Forrest 2000, “Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property”

17. It is also reasonable to suggest that the Defendant’s headlights would have been directly on the sign and in the Defendant’s line of sight as they pulled onto and parked upon the Relevant Land and therefore I do not believe that lighting is an issue.

18. As the contract is between my Company and the Defendant, my Company does have the authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance. In any event, and without concession, the Agreement exhibited to this Witness Statement evidences my Company’s authorisation to operate / manage the Relevant Land on behalf of the Landowner.

19. Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186

1. “The Upper Tribunal’s reasoning on this part of the case was that since VCS did not have the right under its contract with the car park owner to grant a licence to park, it could not have contracted with the motorist to grant such a right. In my judgment there is a serious flaw in this reasoning.

2. The flaw in the reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock market it is commonplace for traders to sell short; in other words to sell shares that they do not own in the hope of buying them later at a lower price. In order to perform the contract the trader will have to acquire the required number of shares after the contract of sale is made. Moreover, in some cases a contracting party may not only be able to contract to confer rights over property that he does not own, but may also be able to perform the contract without acquiring any such right. Thus in Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 a housing trust with no interest in land was held to have validly granted a tenancy of the land to a residential occupier. The tenancy would not have been binding on the landowner, but bound the two contracting parties in precisely the same way as it would have done if the grantor had had an interest in the land.

Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on the question whether VCS had the power to enter into a contract. Having the power to enter into a contract does not, of course, mean that VCS necessarily did enter into a contract with the motorist to permit parking”

20. The charge sought is industry standard and is set at a rate so as to suitably satisfy my Company’s legitimate interest. In the case of ParkingEye v Beavis 2015 it was held that an £85.00 charge was neither extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member in order to apply for DVLA data prescribe a maximum charge of £100. My Company’s charges are within this level. The charge is not, therefore, excessive.

21. The Claim is issued via the County Court Business Centre which is a procedure specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to; namely:-

i) The date of the charge;

ii) The vehicle registration number;

iii) The Parking Charge Notice number;

iv) The amount outstanding;

v) That is relates to parking charges; and

vi) That it is debt.

22. Further, prior to proceedings being issued the Defendant was sent notices in accordance with the Act and a Letter Before Claim. As such, the Defendant would have been aware of the charge which is/are the subject of this claim.

23. A Letter Before Claim was sent to the Defendant, which contained:-

i) The date of the charge;

ii) The Parking Charge Notice Number;

iii) The location of the charge;

iv) The amount outstanding;

v) The Claimant; and

vi) That the balance relates to unpaid parking charge.

If there has been any minor deviation from the Civil Procedure Rules then it is (or would be) within the tolerances provided therein whereby the court is required to interpret any provision having regard to the ‘overriding objective’, namely to deal with matters in a just, proportionate and cost-effective way (rules .1.1 and 1.2)

24. My Company believes that the Consumer Rights Act 2015 does not apply to the parking charge that has been incurred by the Defendant.

The Current Debt

25. In view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred.

26. In view of the Defendant not paying the charge the matter was passed to my Company’s legal representatives, Gladstones Solicitors Ltd. The debt has, as a result of this referral risen as my Company’s staff have spent time and material in facilitating the recovery of this debt. This time could have been better spent on other elements of my Company’s business. My Company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendant’s breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. Alternatively, my Company does have a right to costs pursuant to the sign (i.e. the contract).

STATEMENT OF TRUTH