Do I have a case or shall I just pay it? Galdstone letter

Summary

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

i. The Claimant has disclosed no cause of action to give rise to any debt.
ii. The Claimant did not identify the driver
iii. The Claimant is not the lawful occupier of the land and has failed to demonstrate their legal standing to form a contract.
iv. The signage was inadequate to form a contract with the motorist
v. The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable

The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. As the claimant has not provided this information, signage details have been inferred from stock photographs and the details may not be correct. Minor variants in text may occur. All references to signage therefore, are subject to change once the full particulars of claim have been provided.



i. The Claimant has disclosed no cause of action to give rise to any debt.
1. The Claimant has stated that, as a result of the Defendant’s conduct, a charge was incurred. 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. As the Defendant has never received any other information from the Operator, he has no idea what conduct he is defending and is unable to assist the court to understand the claim.
The Defendant asks the Court that they Strike out the claim entirely as there has been no Cause of Action disclosed. Alternatively the Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.
ii. The Claimant The Claimant did not identify the driver
2. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
In particular, the notice to keeper must, according to Schedule 4, para 9, 2(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full. As The Notice to Keeper does not meet the strict conditions of POFA2012, the defendant can have no liability.
The claimant also failed to state that the creditor does not know both the name of the driver and a current address for service for the driver.

iii. The Claimant is not the lawful occupier of the land and has failed to demonstrate their legal standing to form a contract.
3. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
4. ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name.
5. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive.
6. The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is owed to the landowner, not the Claimant.

iv. The signage was inadequate to form a contract with the motorist
7. The Defendant denies that he would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible. The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read and understand. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which VCS is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.” As can be seen from the attached photographic evidence this is not the case.

v. The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable
8. 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.
9. The Defendant asserts that the Claimant has also ignored the Government’s 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.”
10. The Defendant submits that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £150.
The Defendant submits a prof of VAT receipt for the vehicle - License No XXXXXX showing that a payment for the period of 10hrs parking -dated xxxxxx has been made via PayByPhone App. Therefore The Claimant cannot have a genuine loss in revenue.
11. The Defendant would like to point out that as this car park does not offer a free parking period the ParkingEye v Beavis and Wardley case does not apply (ParkingEye v Cargius case)
12. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. The Defendant has the reasonable belief that the Claimant has not incurred £54 costs to pursue an alleged £100 debt. Notwithstanding the Defendant's belief, the costs are in any case not recoverable. The Claimant described the charge of £54.00 in a previous letter as "legal fees" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.
Save as expressly admitted, the Claimant's particulars of claim are denied.

The court is invited to strike out the claim as having no prospect of success.

I believe the facts stated in this defence are true.


(Name) (Signature) (Date)