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  • FIRST POST
    • WinWin
    • By WinWin 23rd Aug 17, 9:50 AM
    • 17Posts
    • 4Thanks
    WinWin
    Court Claim PCN
    • #1
    • 23rd Aug 17, 9:50 AM
    Court Claim PCN 23rd Aug 17 at 9:50 AM
    Hi all, newbie here. I have been reading the informative threads here. thank you.

    I have acknowledged receipt of service with MCOL. (Private land PCN) Would like some info in laymens terms re defence on keeper liability or possible other defence avenues. if anyone could direct me or better, private message. thank you
Page 2
    • Coupon-mad
    • By Coupon-mad 5th Sep 17, 5:10 PM
    • 49,992 Posts
    • 63,387 Thanks
    Coupon-mad
    Yes, a fuller defence as per the NEWBIES thread post #2.
    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.

    • WinWin
    • By WinWin 7th Sep 17, 8:40 AM
    • 17 Posts
    • 4 Thanks
    WinWin
    Hi all

    I have a draft, does it look like a 2017 version?. Cant find which one I used as a template now !

    Issue date on County Court Claim is 14 Aug and file acknowledgement of service not sure how many days left to amend draft etc.

    In the County Court Business Centre
    Claim Number: ___

    Between:

    .......Limited v ___

    Preliminary matters.

    1. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says
    “1.1 If the claimant is operating parking management activities on land which is not owned by them, they must supply the defendant with written authority from the land owner sufficient to establish the claimant as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.

    2. The particulars of claim do not meet the requirements of Practice Direction 16. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimant are known to be a serial issuer of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. The defendant believes 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.

    3. 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

    4. The Claimant has not complied with the pre-court protocol
    (1) No Letter of Claim was sent to the Defendant, instead, a letter stating next step would be a debt recovery agency.
    (2) I'd refer the court to Para 4 on non-compliance and sanction, and the defendant also points out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially
    bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before
    issuing proceedings. The defendant sent the claimant documentation requesting further information, which the claimant did not reply.

    On the basis of the above, we request the court strike out the claim for want of a cause of action.



    Statement of Defence

    I am XXXXX, defendant in this matter and deny liability for the entirety of the claim for the following
    reasons:

    (1).
    It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the
    time of the alleged incident.

    (2).
    The identity of the driver of the vehicle on the date in question has not been ascertained.
    a) The Claimant did not identify the driver
    b) 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. The car has more than one insured driver and therefore on the balance of probabilities, there is nothing to tip the balance of evidence as to who was driving.
    c) The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent
    signage.

    (3)
    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 not been provided.

    a) The Claimant has stated that a parking charge was incurred for an overstay but do not state the small duration of overstay for which the claimaint is claiming £160.00.
    (b) If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

    Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

    At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

    The Claimant has therefore disclosed no cause of action.
    a) The Particulars of Claim contains no details and fails to establish a cause of action which would enable
    the Defendant to prepare a specific defence.
    It just states “parking charges” which does not give any indication of 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 nor anything which could be considered a fair exchange of information.
    The Particulars of Claim are incompetent in disclosing no cause of action.

    b) On the 20th September 2016 another relevant poorly pleaded private parking charge claim by
    Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing
    due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and
    ‘providing no facts that could give rise to any apparent claim in law’.

    c) On the 19th August 2016, DJ Anson sitting at Preston County Court ruled that the very similar
    parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16
    paragraphs 7.3 - 7.5. He ordered the Claimant in that case to file new particulars which they failed
    to do, and the court confirmed the claim will now be struck out.

    (4)
    The Claimant has not complied with the pre-court protocol.
    a) No Letter of Claim was sent to the Defendant and no initial information was sent to the Defendant.
    b) I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no
    reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially
    bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before
    issuing proceedings.

    (5)
    The defendant wrote to the claimant on xxxxx asking for:
    i) Full particulars of the parking charges
    ii) Who the party was that contracted with HX Car Park Management Limited.
    Iii) The full legal identity of the landowner
    iv) A full copy of the contract with the landholder that demonstrated that HX Car Park Management Limited had their authority.
    v) If the charges were based on damages for breach of contract and if so to provide justification of
    this sum
    vi) If the charge was based on a contractually agreed sum for the provision of parking and If so to
    provide a valid VAT invoice for this 'service'.
    vii) To provide a copy of the signs that HX Car Park Management Limited can evidence were on site and which contended formed a contract with the driver on that occasion, as well as all photographs taken of the
    vehicle in question.

    The claimant has not responded.
    Withholding any legible photos of windscreen and dashboard, and no photos/infomation regarding the signage terms, despite being asked for by the Defendant at the outset, is against the SRA code as well as
    contrary to the ‘overiding objective’ in the pre action protocol. As Gladsones are a firm of solicitors whose Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.

    The Defendant asks that the court orders Further and Better Particulars of Claim and asks
    leave to amend the Defence.



    (6).
    HX Car Park Management Limited are not the lawful occupier of the land. 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 rights to bring this case.
    a) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has
    failed to demonstrate their legal standing to form a contract.
    b) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the
    location in question
    c) 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.

    (7)
    a) 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. This appears to be an added cost
    with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4
    specifically disallows.
    b) 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.

    (8)
    The signage was inadequate to form a contract with the motorist
    a) The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read.
    b) The sign fails because it must state what the ANPR data will be used for. This is an ICO breach and
    contrary to the Code of Practice.
    c) The sign does not contain an obligation as to how to ‘validly display’ the ticket in the windscreen,
    therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under
    Schedule 4 of POFA.
    d) In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent
    letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements
    of Schedule 4 of the POFA.

    (9)
    The driver did not enter into any 'agreement on the charge', no consideration flowed between the
    parties and no contract was established.

    (a) The Defendant denies that the driver 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.

    (10)
    (a) The Claimant has sent threatening and misleading demands which stated that further debt recovery
    action would be taken to recover what is owed by passing the debt to a recovery agent (which
    suggested to the Defendant they would be calling round like bailiffs) adding further unexplained
    charges of £25 to the original £100 with no evidence of how this extra charge has been calculated.
    No figure for additional charges was 'agreed' nor could it have formed part of the alleged
    'contract' because no such indemnity costs were quantified on the signs.
    Terms cannot be bolted on later with figures plucked out of thin air, as if they were
    incorporated into the small print when they were not.
    b) The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
    c) The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an
    alleged £100 debt.
    d) Not withstanding the Defendant's belief, the costs are in any case not recoverable.
    e) the Claimant described the charge of £50.00 "legal costs" not "contractual costs".
    CPR 27.14 does not permit these to be recovered in the Small Claims Court.

    11). The Defendant would like to point out that this car park can be fully distinguished from the details,
    facts, and location in the Beavis case. This site does not offer a free parking licence, nor is there
    any comparable 'legitimate interest' nor complex contractual arrangement to disengage the penalty
    rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015. Whilst the Claimant
    withheld any photos of the signs on site, the Defendant contends these are illegible with terms hidden
    in small print, unlike the 'clear and prominent' signs which created a contract Mr Beavis was 'bound to
    have seen'.
    The defendant therefore asks that the court orders the case to be struck out for want of a detailed
    course of action and/or for the claim as having no prospect of success.


    I believe the facts stated in this defence are true.


    (Name) (Signature) (Date)
    • WinWin
    • By WinWin 7th Sep 17, 8:45 AM
    • 17 Posts
    • 4 Thanks
    WinWin
    I do have photos on PCN but not clear windscreen photots. Thought I would mention as It says in my defence that I have received no photos! But not understanding all the terms and legalities not sure whether to leave in. Also, unsure if preliminary matters set out ok.

    thank you for assisting, very much appreciated
    • Coupon-mad
    • By Coupon-mad 7th Sep 17, 2:49 PM
    • 49,992 Posts
    • 63,387 Thanks
    Coupon-mad
    I like that - yes that is suitable in 2017 to defend a PCN from a PDT machine car park. And it's good if you are saying neither HX Car Park Management Limited. nor Gladstones, have replied to a reasonable request for full evidence of a breach and a picture of the signs (how could a registered keeper guess what the signs say in a car park they were either in several months ago, and never agreed to pay £100, or maybe a keeper wasn't in the car at all?!).

    (5)
    The defendant wrote to the claimant on xxxxx asking for:
    i) Full particulars of the parking charges
    ii) Who the party was that contracted with HX Car Park Management Limited.
    Iii) The full legal identity of the landowner
    iv) A full copy of the contract with the landholder that demonstrated that HX Car Park Management Limited had their authority.
    v) If the charges were based on damages for breach of contract and if so to provide justification of
    this sum
    vi) If the charge was based on a contractually agreed sum for the provision of parking and If so to
    provide a valid VAT invoice for this 'service'.
    vii) To provide a copy of the signs that HX Car Park Management Limited can evidence were on site and which contended formed a contract with the driver on that occasion, as well as all photographs taken of the
    vehicle in question.

    The claimant has not responded.
    Withholding any legible photos of windscreen and dashboard, and no photos/infomation regarding the signage terms, despite being asked for by the Defendant at the outset, is against the SRA code as well as
    contrary to the ‘overiding objective’ in the pre action protocol. As Gladsones are a firm of solicitors whose Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.
    Two typos spotted there, should be:

    overriding

    Gladstones
    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.

    • WinWin
    • By WinWin 8th Sep 17, 8:18 AM
    • 17 Posts
    • 4 Thanks
    WinWin
    thank you coupon-mad. With your alterations, do you think it is good enough to go? If so, I will search for email address on here.

    Did you have any thoughts on my comments just before your reply?
    • Johnersh
    • By Johnersh 8th Sep 17, 9:02 AM
    • 410 Posts
    • 736 Thanks
    Johnersh
    It's a bit wordy for my liking, but it's a good deal better than the nonsense you were going to send (and based upon which another forumite lost his case, despite the fact he could've otherwise proved he was abroad with the military).

    Can I suggest a couple of changes.

    * Use sequential numbering. Your preliminary and defence sections both start from 1. That will get confusing. I would also recommend that every paragraph is numbered

    * It would be beneficial to revise to 3(a) which implicitly admits a short overstay, if not the whole period. If you are asking them to prove overstay, this needs to be tweaked.
    • WinWin
    • By WinWin 9th Sep 17, 1:01 PM
    • 17 Posts
    • 4 Thanks
    WinWin
    Johnersh - thank you for reading and your comments.

    I have not denied overstay or infact parking and buying a ticket. Not sure on best thing to say?! Whats the train of thought usually? There are photos on correspondence from them. Obviously their sums are unreasonable.
    • Johnersh
    • By Johnersh 9th Sep 17, 2:12 PM
    • 410 Posts
    • 736 Thanks
    Johnersh
    My point is that you need to know what you will say in the defence. What are you asking them to prove (in which case "it is neither admitted nor denied, the claimant is put to proof that..."), what do you refuse and can prove to be wrong (in which case deny) and what is correct and are you prepared to accept (in which case admit).
    • WinWin
    • By WinWin 10th Sep 17, 10:10 AM
    • 17 Posts
    • 4 Thanks
    WinWin
    does this sound better

    The Claimant has stated that a parking charge was incurred for an overstay but have not provided further information on this and the duration of any overstay claimed.

    Also, if court claim signed a name then, Legal Representative, I thought I see some wording somewhere to say this is not acceptable?
    • Johnersh
    • By Johnersh 10th Sep 17, 10:33 AM
    • 410 Posts
    • 736 Thanks
    Johnersh
    Regarding the Claim Form: The statement of truth on the claim form needs to be signed by the Claimant (i.e. an appropriate employee of) or by the lawyer. That must be a named lawyer. The firm's name is insufficient. Details are contained in the CPR 'Documents that must be veriifed with a statement of truth'

    Your case: The problem is that the Court are only able to allow the fee or disallow it on the basis of the contract. There is not a power to pro-rate the fee.

    So you can approach in the usual template form, but you are going to need to be careful that you do not deny anything that may in fact mislead. The problem with your reason for overstay is that you cannot very easily put that in without admitting to be the driver.

    The Claimant has stated that a parking charge was incurred for an overstay but have not provided further information on this and the duration of any overstay claimed.
    This is helpful and clear. If the case did go belly up, it may also be a decent argument to show that the Claimant has not engaged properly pre-action to explain their case and be a basis upon which you could ask for any additional costs to be disallowed.
    • Lamilad
    • By Lamilad 10th Sep 17, 11:00 AM
    • 885 Posts
    • 1,857 Thanks
    Lamilad
    I am denying that for an overstay I should be charged £100++
    The Beavis case found that these outrageous charges claimed by the PPCs are not a penalty and not unconscionable. Don't put this in your defence unless you distinguish your case from Beavis and state reasons why the penalty rule is still engaged.
    • WinWin
    • By WinWin 11th Sep 17, 7:19 AM
    • 17 Posts
    • 4 Thanks
    WinWin
    Hi Lamilad

    I have the following text included, do you think this adequate?

    If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

    Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

    At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold
    • WinWin
    • By WinWin 11th Sep 17, 11:09 AM
    • 17 Posts
    • 4 Thanks
    WinWin
    Anyone have any comments on my draft please? I need to get it off now. Thank you very much for your invaluable advice so far. Very much appreciated
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