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  • FIRST POST
    • JimmyChan
    • By JimmyChan 27th Feb 17, 11:39 PM
    • 56Posts
    • 34Thanks
    JimmyChan
    County Court Claim AM Parking Services Ltd
    • #1
    • 27th Feb 17, 11:39 PM
    County Court Claim AM Parking Services Ltd 27th Feb 17 at 11:39 PM
    After batting away numerous PCNs over a number of years using this site for parking in my own space and surrounding roads I now have a County Court Claim sent to me. I have acknowledged the claim. I would be very grateful is some eyes could look over my defence.

    Preamble: I owned the registered leasehold of a property with both the flat & parking space demised to me. One day signs (“contracts to park”) went up around the estate and a permit to park was posted under my door (no other information given). I then kept getting PCNs in my own space & on the public highways around the estate (they are public I have checked). This PCN (which the claim is for) I received a “Notice to Owner” I then appealed to parking company (in time of course) but received nothing more. Fast forward to over year since I sold the leasehold and I received a LBC, which I responded to asking for more detail, then I received the claim. Due to their lack of information I don’t know if the PCN was for parking in my own space or for parking on the public highway.

    My defence:

    It is admitted that the defendant was the registered keeper of the vehicle noted at the date of alleged breach. However, the claimant has no cause of action against the defendant on the following grounds: -

    1. Notwithstanding that the claimant claims no right to pursue the defendant as the registered keeper under The Protection of Freedoms Act 2012 (PoFA 2012); the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if they cannot identify the driver.
    2. The Claimant alleges the driver breached “the terms of parking” but no terms are given nor is any valid breach established.
    3. The place of the alleged breach is given as “land at Coriander Drive Maidstone Kent”, there are many registered parcels of land in and around Coriander Drive as well as registered leaseholds on parts of these parcels of land, therefore strict proof is required as to the exact site of the breach.
    4. AM Parking Services Ltd are not the lawful occupier of any land around Coriander Drive. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier, I have reasonable belief that they do not have authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
    5. The Defendant owned at the time of the alleged breach the registered leasehold for one of the above-mentioned parcels of land. Which included a parking space as part of the property which had been demised to the Defendant.
    6. The leasehold held by the Defendant at the time of the alleged breach, with no amendments mentions no terms which must be followed in order to park on the leased section of land. Nor does it mention the Claimants authority to operate a parking scheme on the leased section of land.
    7. Coriander Drive has been adopted by Kent County Council and is marked as a “Publicly Maintainable Highway” in the Kent County Council Highways Gazetteer under the Unique Street Reference Number of 24202170. Signs have been placed alongside the public road stating it is a private road, this makes it impossible to identify where the public highway ends and where the private land starts (and therefore there is no way to know what land the “terms” apply).
    8. PoFA 2012 only allows the recovery of the parking charge stated on the Notice to Keeper and not court fees, damages, indemnity costs or legal representative’s costs.
    9. No contract, terms and conditions or sum payable were ever accepted by any driver.
    10. The Defendant believes that his personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur action).

    Any help will be gratefully received.
Page 3
    • Loadsofchildren123
    • By Loadsofchildren123 9th Mar 17, 4:08 PM
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    Loadsofchildren123
    You don't have to suffer a direct loss, no. But if you haven't suffered such loss the damages won't be anything to write home about. They got £150 in that other case. You'd have to say how much distress and aggro it caused you. I just think you might as well add it in.

    And use it to shake up the MA who can't fob you off with the idea the council are responsible. Who let this lot into the complex? Not the council!!! (Is it gated?). PPCs just don't turn up out of the blue and start putting up signs and ticketing cars!

    I just can't see a PPC being engaged by the council. They must have been engaged by the MA and, if anything, are exceeding their authority by ticketing cars on the adopted highway. I'm sure if you dig there will be a landowner/MA-PPC contract
    • JimmyChan
    • By JimmyChan 9th Mar 17, 11:24 PM
    • 56 Posts
    • 34 Thanks
    JimmyChan
    ok have added the part about advertisement consent to my defence and have updated my counter claim to add £150 for trespass. I wouldn't mind some case law around the justifying the £150 I am claiming. Updates in bold

    Counter Claim
    1. The Defendant counterclaims for trespass on their property for the sum of £150.
    2. The Defendant was the owner of the register title Kxxxx which is a lease for parts of the title Kxxxxx. The Claimant had no right to operate on this land as it had been whole demised to the defendant.
    3. As a result of the Claimant’s trespass the Defendant has suffered mental anguish, time and effort when they had the right to peaceful enjoyment of the land.
    4. The Claimant after being told about their trespass continued to pursue this claim and try to profit from their trespass.

    5. The Defendant also counterclaims the sum of £750.00 against the Claimant, as compensation for a material breach of the Data Protection Act 1988 (“DPA”).
    6. The Claimant parking company had no lawful reason to retain or process my personal data, and by so doing they were in breach of the Second Data Principle, pursuant to Schedule 1 of the DPA, which states: “Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.”
    7. Pursuant to s13 of the DPA: “Compensation for failure to comply with certain requirements”, the Act states at 13(1) that “An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage”.
    8. The Claimant is aware of all laws under which this counter claim is being brought as at the time they were a member of the trade association the British Parking Association, which to be a member they must abide by their code of practice which section A2.4 states:
    All AOS (Approved Operator Scheme) members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.

    9. I rely on two significant authorities for my counterclaim: Vidal-Hall v Google Inc [2015] EWCA Civ 311, and Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333. In Vidal-Hall, compensation was held to arise upon the fact of breach. In Halliday, the Court of Appeal held that a compensatory sum of up to £750 was deemed ‘appropriate and sufficient’.
    10. Both of the above cases arose as a result of material breaches of the DPA and can be considered to provide binding precedents for my own situation. A DPA breach ruling has also been made recently in favour of a consumer, in a private parking ticket case by a District Judge at Liverpool County Court on 7 December 2016, in case no. C9DP2D6C: ‘VCS v Mr. M’.
    11. No quantified loss is required to be proven since this is a clear breach under the tort of data misuse. As shown by the Court of Appeal authorities in Vidal-Hall and Halliday, no actual pecuniary loss sustained need govern the amount of the award in such cases so it seems reasonable to counterclaim a sum in excess of this Claimant’s unwarranted claim, without the sum of £750 being in any way excessive as compensation for my distress, given the circumstances.
    12. My data was obtained from the Driver and Vehicle Licensing Agency (DVLA) under the guise of "reasonable causes" however the land the parking charge was issued had been whole demised to me under a registered lease. They had no authority to operate on this land and so therefore no reasonable causes to obtain my details from the DVLA. Section 55 of the DPA states is an offence to unlawfully procure personal information.

    And the Defendant claims:
    (a) damages, as claimed or alternatively, in such sums as the Court may find; and
    (b) all court fees arising as a result of this counter-claim.
    (c) all costs for travel/parking to attend court and loss of earnings/leave (either loss of earnings or ‘loss of leave’ being covered by 27.14.2(e))
    A statement of costs will be brought to the court hearing. Should the Claimant discontinue their own claim, this counterclaim still stands.

    The Defendant believes the facts stated in this counterclaim are true.
    • Loadsofchildren123
    • By Loadsofchildren123 10th Mar 17, 7:54 AM
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    Loadsofchildren123
    Trespass isn't something I've looked into in any detail the only case I know is the one I posted a link to. Parking prankster reported that case so may know what case law was relied on, try messaging him via his blog. Or google trespass damages and parking trespass damages and see if anything comes up.
    Will look at your defence later this morning.
    • Loadsofchildren123
    • By Loadsofchildren123 10th Mar 17, 7:58 AM
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    Loadsofchildren123
    Don't forget you need to pay a court fee for a counterclaim. This depends on its value. There's a court list of fees. I think it's called EX50. If you google it it's easy to find.
    • Loadsofchildren123
    • By Loadsofchildren123 10th Mar 17, 10:29 AM
    • 1,754 Posts
    • 2,865 Thanks
    Loadsofchildren123
    ok have added the part about advertisement consent to my defence and have updated my counter claim to add £150 for trespass. I wouldn't mind some case law around the justifying the £150 I am claiming. Updates in bold

    Counter Claim
    1. The Defendant counterclaims for trespass on their property in the sum of £150.
    2. The Defendant was the owner of the register title Kxxxx which is a leasehold of part of the freehold title Kxxxxx. The Claimant had no right to operate on this land as it had been whole demised to the defendant.
    3. On or about [date] the Claimant entered onto the Defendant's land, without authority, for the purpose of placing a "parking charge notice" on the windscreen of his car and taking photographs of the said car.

    [new para number] Subsequently, the Claimant has relied on this act in order to write multiple chasing letters to the Defendant seeking payment of the "parking charge", and which forms the basis of these proceedings. As a result of the Claimant’s trespass the Defendant has suffered mental anguish, and has had to spend hours defending and dealing with the claim when they had the right to peaceful enjoyment of the land.
    4. The Claimant after being told about their trespass continued to pursue this claim and try to profit from their trespass. As such, it has made no attempt to mitigate the Defendant's loss.

    5. The Defendant also counterclaims the sum of £750.00 against the Claimant, as compensation for a material breach of the Data Protection Act 1988 (“DPA”).
    6. The Claimant parking company had no lawful reason to retain or process the Defendant's personal data, and by so doing it was in breach of the Second Data Principle, pursuant to Schedule 1 of the DPA, which states: “Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.”
    7. Pursuant to s13 of the DPA: “Compensation for failure to comply with certain requirements”, the Act states at 13(1) that “An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage”.
    8. The Claimant is aware of all laws under which this counter claim is being brought as at the time they were a member of the trade association the British Parking Association, which to be a member they must abide by their code of practice which section A2.4 states:
    All AOS (Approved Operator Scheme) members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses (and the tort of trespass and data protection law are specifically listed in paragraph A2.4).

    9. I rely on two significant authorities for my counterclaim: Vidal-Hall v Google Inc [2015] EWCA Civ 311, and Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333. In Vidal-Hall, compensation was held to arise upon the fact of breach. In Halliday, the Court of Appeal held that a compensatory sum of up to £750 was deemed ‘appropriate and sufficient’.
    10. Both of the above cases arose as a result of material breaches of the DPA and can be considered to provide binding precedents for the Defendant's own situation. A DPA breach ruling has also been made recently in favour of a consumer, in a private parking ticket case by a District Judge at Liverpool County Court on 7 December 2016, in case no. C9DP2D6C: ‘VCS v Mr. M’.
    11. No quantified loss is required to be proven since this is a clear breach under the tort of data misuse. As shown by the Court of Appeal authorities in Vidal-Hall and Halliday, no actual pecuniary loss sustained need govern the amount of the award in such cases so it seems reasonable to counterclaim a sum in excess of this Claimant’s unwarranted claim, without the sum of £750 being in any way excessive as compensation for my distress, given the circumstances.
    12. My data was obtained from the Driver and Vehicle Licensing Agency (DVLA) under the guise of "reasonable causes" however the land the parking charge was issued had been whole demised to me under a registered lease. They had no authority to operate on this land and so therefore no reasonable causes to obtain my details from the DVLA. Section 55 of the DPA states is an offence to unlawfully procure personal information.

    And the Defendant claims:
    (a) damages, as claimed or alternatively, in such sums as the Court may find; and
    (b) all court fees arising as a result of this counter-claim.
    (c) all costs for travel/parking to attend court and loss of earnings/leave (either loss of earnings or ‘loss of leave’ being covered by 27.14.2(e))
    A statement of costs will be brought to the court hearing. Should the Claimant discontinue their own claim, this counterclaim still stands.

    The Defendant believes the facts stated in this counterclaim are true.
    Originally posted by JimmyChan
    Normally in a defence you wouldn't quote the relevant cases. You'd rely on these on the day (many defendants choose to serve a "Skeleton Argument" a few days before the hearing, which simply summarises their case and includes reference to the case law - the aim of that document is to cut down on oral submissions and make your life easier on the day, and the judge's). You could leave them in, or you could take them out, it's up to you.
    • Loadsofchildren123
    • By Loadsofchildren123 10th Mar 17, 10:30 AM
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    Loadsofchildren123
    Sorry, I have deleted some of your wording (where I've put suggested alternatives in red) - I couldn't work out how to strike it out.
    • Loadsofchildren123
    • By Loadsofchildren123 10th Mar 17, 10:31 AM
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    Loadsofchildren123
    I also haven't picked up on every place where you've said "my". Ideally it should all be written in the third person, referring to me, my, I etc as Defendant, Defendant's etc. But again this doesn't really matter so don't stress about it.
    • DoaM
    • By DoaM 10th Mar 17, 10:33 AM
    • 3,573 Posts
    • 3,616 Thanks
    DoaM
    Sorry, I have deleted some of your wording (where I've put suggested alternatives in red) - I couldn't work out how to strike it out.
    Originally posted by Loadsofchildren123


    Without spaces .. use [ s ] and [ /s ] tags.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • JimmyChan
    • By JimmyChan 12th Mar 17, 3:33 PM
    • 56 Posts
    • 34 Thanks
    JimmyChan
    Sorry for the late reply, I haven't had an email about getting a reply on this thread. Thank you so much for your help. I have added / changed all the parts you said. Also I removed the 3 points about case law from the counter claim and also moved the part about them knowing about trespass tort & DPA to the end so it flows a bit better.
    • Loadsofchildren123
    • By Loadsofchildren123 13th Mar 17, 9:53 AM
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    Loadsofchildren123
    I don't think you get notified about posts on your thread, I certainly don't, you just need to check it periodically.
    • JimmyChan
    • By JimmyChan 13th Mar 17, 10:06 AM
    • 56 Posts
    • 34 Thanks
    JimmyChan
    I don't think you get notified about posts on your thread, I certainly don't, you just need to check it periodically.
    I just did for this one, how strange.

    Any how I have emailed my preliminary matters, defence & counterclaim. I will ring up the court later today to pay the fee.

    Thanks again for all your help everyone. I will be back no doubt as things progress.
    • JimmyChan
    • By JimmyChan 23rd Mar 17, 11:12 PM
    • 56 Posts
    • 34 Thanks
    JimmyChan
    I have recieved the PPC Direction Questionnaire (I am just about to send mine off). But they have requested hearing the case "on the papers" and included an N159 form. I know I am to say no to this, but do I have to say no now, or wait until the court has asked me?

    Should I just add a note to my covering letter that I don't want to?
    • Coupon-mad
    • By Coupon-mad 23rd Mar 17, 11:19 PM
    • 51,709 Posts
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    Coupon-mad
    Covered on loads of threads, such as:

    infernouk (yesterday!)

    Jack Basta

    backtobasix

    Gin and Milk

    ...read their threads because this has been covered in detail lots of times and can give you a chance to ask a Judge to strike the claim out.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • JimmyChan
    • By JimmyChan 23rd Mar 17, 11:36 PM
    • 56 Posts
    • 34 Thanks
    JimmyChan
    Ok thanks, just going to reply to the Court's Direction Questionnaire.
    • Coupon-mad
    • By Coupon-mad 23rd Mar 17, 11:37 PM
    • 51,709 Posts
    • 65,352 Thanks
    Coupon-mad
    Yes but you will miss a trick if you don't enclose a covering letter to the Judge.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • JimmyChan
    • By JimmyChan 23rd Mar 17, 11:45 PM
    • 56 Posts
    • 34 Thanks
    JimmyChan
    Yes but you will miss a trick if you don't enclose a covering letter to the Judge.
    What trick is that? I have already asked for the claim to be struck out in my preliminary matters I sent with my defence and counterclaim
    • Coupon-mad
    • By Coupon-mad 23rd Mar 17, 11:52 PM
    • 51,709 Posts
    • 65,352 Thanks
    Coupon-mad
    Same sort of thing - see backtobasix thread. And the others.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • JimmyChan
    • By JimmyChan 23rd Mar 17, 11:55 PM
    • 56 Posts
    • 34 Thanks
    JimmyChan
    Ok will do it tomorrow and paste it in here for a look over from you lovely people before I send it off.
    • JimmyChan
    • By JimmyChan 27th Mar 17, 12:02 AM
    • 56 Posts
    • 34 Thanks
    JimmyChan
    Here is my covering letter to the court (should I have bolded my two requests like this?):

    Dear Sir/Madame,
    Please find enclosed my completed N180 Directions Questionnaire form.
    I have also received the Claimants’ N180 form and understand that they have lodged a Request for Special Direction by asking for the claim to be heard “on the papers.” I would like to lodge my formal objection to this Request for Special Direction.
    As an unrepresented defendant, I require a hearing at my local Court because the Claimant’s legal representatives have followed their usual path of ‘roboclaims’ by:
    1) No clear and concise Particulars of Claim. The Claimant’s legal representatives are known to withhold any contract/facts until the last minute (often ambushing Defendants late with paperwork never shown earlier). This potentially causes me at an extreme disadvantage if this cases is heard 'on papers' because based on the routinely sparse information provided to me so far, it has been almost impossible to put together a detailed defence. I respectfully request that, in the event that the claim is not struck out due to the reasons in this letter, the court exercises its discretion to allow a more detailed defence to be submitted without cost, should Claimants finally produce late evidence.
    2) The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed, the particulars of the claim are not clear and concise as is required by CPR 16.4 1(a). The Claimant’s legal representatives are known to be a serial issuer of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is ‘roboclaims’ and as such is against the public interest.
    Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:


    1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
    (1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
    (2) those which are incoherent and make no sense,
    (3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant


    3) The Claimant has not complied with the pre-court protocol:
    a) When requested for concise details of the claim (in line with Para 6(a) Para 6(c)), such as a specific location, a contract with the land owner and how the claimed amount had been arrived at, the Claimant either ignored the request or stated it would only be provided in their witness statement if the matter went to court.
    b) When requested that we consider using ADR, as Para 8 suggests, by using the Claimant’s own Trade Association’s recommended ADR (Parking on Private Land Appeals) it was dismissed with no satisfactory answer. Due to the above the Defendant would refer the court to Para 11 & 14(c) on the unreasonableness of dismissing ADR.
    c) The Defendant would refer the court to Para 4 on non-compliance and sanction, and also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process as this claim was issued by the Claimants legal representative so they clearly had legal advice before issuing proceedings.

    On the basis of the above, and for similar reasons cited by DJ Cross of St Albans County on 20/09/16 where a similar claim was struck out without hearing, due to Claimaint’s legal representatives’ particulars of claim being “incoherent”, failing to comply with CPR. 16.4, “providing no facts that could give rise to any apparent claim in law.” Also on 27/07/16 DJ Anson of Preston County Court ordered the Claimaint’s legal representatives’ file new particulars of claim due to them being deficient, which they failed to do and the claim was stuck out. Due to the above I request that the court strike out the claim for want of a cause of action. Please note that if the Claim is struck out I still wish to continue with the Counterclaim.
    Yours sincerely,
    JimmyChan
    • Coupon-mad
    • By Coupon-mad 27th Mar 17, 12:05 AM
    • 51,709 Posts
    • 65,352 Thanks
    Coupon-mad
    Here is my covering letter to the court (should I have bolded my two requests like this?)
    Yes, looks fine and clear. Might have the desired effect, if not, it does not harm.

    Change Madame to 'Madam'
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

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