Too late to appeal ?

Coupon-mad

You should be able to defend this easily with pepipoo posters' help and by reading other court defence threads there for a day or two.

By these chancers' 'rules' it would seem that a flat-owner couldn't even stop in front of their own garage whilst they popped indoors to get the garage key! And I doubt there's a no stopping sign next to your garage?

Constantgardener

There is a sign stating that parking is only allowed in marked bays and not on the roadway or paved areas. There is no sign saying no stopping.

Constantgardener

There is no mention on the claim form of further details to follow.

Coupon-mad

Well they will have to supply full details of their claim...but then again you will have to acknowledge with the court what you've been sent - and submit a defence anyway or you'll lose. You must do this before Christmas or you'll end up with a default judgment.

Of course by now (or over the weekend) you'll have read all about defences in the most recent dozen pages of pepipoo, reading every relevant thread & linked advice.

Constantgardener

I have prepared the following letter of defence. Any advice would be much appreciated:


I wish to defend the claim madeby BSG Car Parking Management Limited (BSG) for alleged parking and enforcementcharges. These charges apparently relate to Parking Charge Notices (PCN’s)issued on the 30th January 2013 and on 2nd February 2013.

I reject their claim for thefollowing reasons:

I do not believe that a legallybinding contract exists between BSG and myself. The terms and conditions withinthe lease agreement between Barratt Homes Limited, the Lessor, and myself asthe Lessee, form a contract between said parties in relation to parkingregulations at the property. I do not believe that contract can be supercededand invite BSG to prove that a legally binding contract exists between us, anddid at the time of the two alleged breaches of contract. I contend that, shoulda breach of contract have occurred, that is a matter between the Lessor and theLessee.

For a binding contract to exist it is my understandingthat a full contract negotiation must have been completed prior to thecommencement of the contract. This process must have followed the followingsteps: Offer, Consideration, Acceptance and an intention by both parties tocreate legal relations. Again I challenge BSG to prove that these steps werecorrectly completed to the satisfaction of both parties.

Should BSG be able to prove thata legally binding contract exists between us, then I further defend that claimon the basis that that contract is unfair. The Unfair Consumer Contracts Regulations 1999section 5(1) states that:

A contractual term which hasnot been individually negotiated shall be regarded as unfair if, contrary tothe requirement of good faith, it causes a significant imbalance in theparties' rights and obligations arising under the contract, to the detriment ofthe consumer.

I contend that the charge of £100for the alleged breaches of contract is disproportionate and results in asignificant imbalance in the parties’ rights to the detriment of the consumer.Further significant imbalance in those rights and obligations is created by thecomplete lack of visitor parking at the block of apartments in which the driverof the vehicle would have been working on those dates.

Various people have had the use of the vehicle whilst we were renovatinga flat we own on the third floor of a block. It has never been parked in the roadway by any driver, as stated in theNotice to Keeper letters received from BSG, rather it is parked in a car parkimmediately in front of the garage whichwe own as Lessees, along with the apartment. It is parked there whilst myself,my wife or tradesmen employed by us are delivering tools and materials to beused in the refurbishment. The apartmentis on the third floor, there is no lift, and so we park as close to the blockas is possible, without causing an obstruction, so as to reduce the distance tocarry heavy tools and materials. As the vehicle is always parked directly infront of our garage and is not causing an obstruction to anyone, and with asign in the windscreen to the effect that the driver is working in the blockand providing a mobile telephone number to contact the driver, I believe itunreasonable to say a breach of contract occurred, assuming such contractexists.

As the vehicle was used byseveral drivers during the period in which the alleged breaches occurred Irequest that BSG provide photographic evidence. These should be clear andconcise pictures of the driver of the vehicle so that I can attempt to identifywhich driver entered in to this alleged contract .

The photographs should show the time and date of the incident and beaccompanied by a copy of the latest calibration certificates from theindependent contractor that verifies the timings of the cameras that take thesephotographs.

Coupon-mad

There is so much more you should have in a defence - and you should not include any unnecessary stuff about 'Various people have had the use of the vehicle'

Surely the Notices (PCN paperwork) were not compliant with POFA 2012, did you keep them? Compare to paragraphs 7 & 8:

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

As a starter to see what to include in a defence, cases to cite, etc., see post #18 and all links I gave as SRM on pepipoo to this poster:

http://forums.pepipoo.com/index.php?showtopic=82531

...and generally you will find there are loads of court claim cases on here and on pepipoo, that you can find where they have shown their defence wording. Have a look at the open defences posted on threads by:

jibberjabber http://forums.pepipoo.com/index.php?showtopic=83901
SpaceCowboy55 http://forums.pepipoo.com/index.php?showtopic=79614&st=0
and Ed666 http://forums.pepipoo.com/index.php?showtopic=84380 and his case was dropped: https://forums.moneysavingexpert.com/discussion/4782232


And what is the wording of BSG's 'Particulars of Claim' in the court claim, EXACTLY? Please tell us the words they use. You need to rebut what they say.

Constantgardener

Thanks for your advice. Does the 'Notice to Driver' refer to the PCN which would have been attached to the car ?

The Particulars of Claim state:

Parking & Enforcement Charges detailed below:
Date Description Amount Due Date

(PCN date) (reg number followed by date) £160 (date)
(PCN Date) (reg number followed by date) £160 (date)

Total due:- 320.00
The claimant claims the sum of (total) for
Parking & enforcement charges detailed below

Including 19.11 interest pursuant to
S.69 of the County Courts Act 1984
Rate 8.00%pa from dates above to: (date)
Same rate to judgment or (sooner) payment
Daily rate to judgment: 0.07
Total debt and interest due: (total)

Coupon-mad

They haven't said why you are considered liable and what 'service' or 'breach' these invoices were supposedly for (because they are not PCNs in the real sense of course).

So you need to rebut every point they try to make, and summarise bullet-point evidence as to why you are NOT liable at all, such as information from your lease about the garage being expressly allocated to you... and of course when one owns a garage, one has no option but to stop a car in front of it before it can enter the garage (once the garage is opened with the key that's in the flat of course). I know it's a pedantic point, but I would hope a judge would agree that you can't be charged by a third party for wiping your feet outside your flat...and the same applies to stopping your car entering your own garage! And why the PPC is the wrong claimant and have no standing to make contracts and make claims in their own name, as they are a mere agent of the landowner/managing agents (as was found by the Judges in recent PE small claims cases as already linked for you). Why there has been no loss nor damage caused to the landowner or their agent.

But there's more than that, so I hope you have read the links flowing from the links I already gave you. Did you see that SpaceCowboy55 has just had his PPC (a small one like in your case) throw in the towel when they saw a robust defence?

Constantgardener

Thanks for all of your excellent advice Coupon-mad. I have been working away from home until today and so have had little time to follow up. My defence has to arrive by the 1st January, so I really need to post it tomorrow. I have followed the links you gave and have made some additions to the defence. I assume I will have th e opportunity to add to this should the claim proceed to court ?

Here is my updated defence. I would greatly appreciate any comments:


Defence of Court ClaimNo: .................. 22ndDecember 2013

I wish to defend the claim madeby BSG Car Parking Management Limited (BSG) for alleged parking and enforcementcharges. These charges apparently relate to Parking Charge Notices (PCNs)issued on the 30th January 2013 and on 2nd February 2013. The allegations whichI deny are for charges with a description of P647RSX/23540055 (dated 30/01/13for £160) and P647RSX/23540057 (date 02/02/13 for £160).

The Defendant denies he isindebted to the Claimant in any way:

BSG’s claim appears to be thatthere is a contract between myself and them under which I have agreed to paytheir parking charge. I do not acceptthat BSG can establish that such a contract exists. As I understand the legal process it is forBSG to prove their case and they will need to show that such a contractexists. I do not believe that they willbe able to do so. The vehicle has neverbeen parked in the roadway by anydriver, as stated in the Notice to Keeper letters received from BSG, rather ithas been parked immediately in front of the door to the garage which my wifeand I own as lessees, along with an apartment in the adjacent block. It has been parked there whilst myself, mywife or tradesmen employed by us have been delivering tools and materials to beused in the refurbishment of the apartment, and whilst collecting the key tothe garage from the apartment. Theapartment is on the third floor, there is no lift, and so the car has beenparked as close to the block as is possible, without causing an obstruction(other than to our own garage door), so as to reduce the distance to carryheavy tools and materials. As the vehicle is always parked directly in front ofour garage and is not causing an obstruction to anyone, and with a sign in thewindscreen to the effect that the driver is working in the block and providinga mobile telephone number to contact the driver, I believe it unreasonable tosay a breach of contract occurred, assuming such contract exists.

BSG have brought this claim in contractagainst me and so they will have to showthat it was me that parked the car on the relevant occasions. Therefore I request that BSG providesphotographic evidence. These should be clear and concise pictures of the driverof the vehicle so that I can establish whether it was me that parked the car atthe relevant time and entered into the contract alleged by BSG. The photographs should show the time and dateof the incident and be accompanied by a copy of the latest calibration certificatesfrom the independent contractor that verifies the timings of the cameras thattake these photographs.

Secondly, if they can show thatit was me that parked the car at the relevant time, they will need to show howthe contract they allege supersedes the terms of the lease of the property thatI own on the estate. The terms and conditions within the lease agreementbetween Barratt Homes Limited, the Lessor, and myself as the Lessee, form acontract between said parties in relation to parking regulations at theproperty. The terms of the lease state that I am not allowed to park anywhereon the estate other than in such places as are provided therefore. Consequently, parking in a place other thanis provided therefore is a breach of the lease and the correct remedy is anaction by the landlord for breach of the lease. I do not see how BSG can say that I have a contract with them thatsupersedes the terms of the lease and imposes an alternative remedy therebyusurping the power of the court. My carwas parked immediately in front of my garage in a place that prevents access tothe garage, so it cannot be said that my car was parked in a place that couldbe reserved for general parking, as it would prevent access to my garage. I am entitled to park the car in my garageand cannot avoid stopping the car in front of my garage to access it.

I do not believe that a legallybinding contract exists between BSG and myself. As stated above, I do not believe that contract can be superseded andinvite BSG to prove that a legally binding contract exists between us, and didat the time of the two alleged breaches of contract. I contend that, should abreach of contract have occurred, that is a matter between the Lessor and theLessee.

BSG have also not provided me with anyevidence that it is lawfully entitled to demand money from the driver orkeeper. They do not own nor have any proprietary or agency rights or assignmentof title or share of the land in question. I do not believe that the Operatorhas the necessary legal capacity to enter into a contract with a driver of avehicle parking in the car park they do not own, or indeed the lawful status toallege a breach of contract in their name.

BSG must providedocumentary evidence in the form of a copy of the actual siteagreement/contract with the landowner/occupier (not just a signed slip of papersaying it exists). Specifically, to comply with the Code of Practice, thecontract needs to specifically grant BSG the right to pursue parking charges inthe courts in their own name, as creditor.



Thirdly, for a binding contractto exist it is my understanding that BSG will have to show that the fouressential requirements of a contract are present: Offer, Consideration,Acceptance and an intention by both parties to create legal relations. If itwas me that parked the car in front of my garage I would certainly have had nointention to create legal relations. Ichallenge BSG to prove that all of these elements were satisfied.

Should BSG be able to prove thata legally binding contract exists between us, then I further defend that claimon the basis that:

1 that the contractterms are unfair and therefore unenforceable. The Unfair Consumer ContractsRegulations 1999 section 5(1) states that:

A contractual term which has not been individually negotiated shall beregarded as unfair if, contrary to the requirement of good faith, it causes asignificant imbalance in the parties' rights and obligations arising under thecontract, to the detriment of the consumer.

I contend thata parking charge of £100 for the alleged breaches of contract isdisproportionate and unfair and results in a significant imbalance in theparties’ rights to the detriment of the consumer. I have not been able to find any example of aparking charge for a car park that equates to anything like the amount claimedby BSG. Car parking charges are at mosta few pounds per hour. The amount thatBSG is claiming is more akin to a car parking fine than a charge for using acar park. BSG have no power to issue afine and are merely attempting to structure the situation in an attempt to givethemselves the power to issue a fine. Further significant imbalance in those rights and obligations is createdby the complete lack of visitor parking at the block of apartments in which thedriver of the vehicle would have been working on those dates.

2 As I understand the position inEnglish law, the purposes of contractual damages are to put the innocent partyinto the position it would have been in if the breach had not occurred. BSG are in effect claiming a liquidateddamage, which can in no circumstances be said to be a genuine pre estimate ofthe loss suffered by them as a result of a breach of contract.

I question how the originalcharge of £100 can be a pre estimate of loss if this is then discounted to £60for prompt payment. I suggest that this is used to entice the Defendant to payup, making him/ her think he is getting a discount and at the same timeavoiding more threats of increasing costs and eventual court action. If the charge is supposed to be a penalty for“breach of contract” the penalty of £100 is an unenforceable penalty clause.Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915], clausesdesigned to punish a party for breach of contract may only be upheld if theyrepresent a genuine pre-estimate of loss.The initial charge of £100 is apenalty, not a genuine pre-estimate of loss since the Claimant is not thelandowner and has suffered no consequential loss.



Private parkingtickets unrelated to any genuine loss are unenforceable penalties as was
found in the Parking Eye v Smith case[2011]. Exel Parking Services vHetherington-
Jakeman[2008], OBServices v Thurlow (review decision by Circuit Judge, February
2011), and UKCPS v Murphy [April 2012].





3 BSG will have toshow that the terms of the contract allow them to render each of the chargesclaimed. The charges were for £100 each,reduced to £60 each if paid within 14 days. BSG then instructed debt collectors who then contacted me and demanded£160 for each PCN. BSG will also needto show that the terms of the contract include the right to include the debtcollectors charge.





In addition bothof the Notice To Keeper letters receivedfrom BSG are

invalid sincethey were not delivered within the time limits specified in the

Protection ofFreedoms Act 2012, in paragraph 8, (4(b), 5 & 6):

(4)The notice must begiven by—

(a)handing it to the keeper, or leaving it at a currentaddress for service for the keeper, within the relevant period; or

(b)sending it by postto a current address for service for the keeper so that it is delivered to thataddress within the relevant period.

(5)The relevant periodfor the purposes of sub-paragraph (4) is the period of 28 days following theperiod of 28 days beginning with the day after that on which the notice todriver was given.

(6)A notice sent bypost is to be presumed, unless the contrary is proved, to have been delivered(and so “given” for the purposes of sub-paragraph (4)) on the second workingday after the day on which it is posted; and for this purpose “working day”means any day other than a Saturday, Sunday or a public holiday in England andWales.



The two notices to driver were issuedon 30th January 2013 1nd then on 2nd February 2013. Thetwo associated Notice to Keeper letters were not received, by post, until 8thApril 2013, clearly after the defined “relevant period”. The both of the Notice to Keeper’s have therefore been servedout of time and are invalid. I request that the court strike the claim out asthe claimant has no real prospect of succeeding on the claim (CPRPart 24.2).

The two “ Letters Before Claim” sent on 2nd October 2013 by theClaimant’s Solicitor (GPB Solicitors llp) were defective and did not complywith Annex A Section 2 of the Practice Direction on Pre-Action Conduct in anumber of ways, as a “Letter Before Action” including:


• Failureto mention the Practice Direction itself and draw attention to para 4concerning sanctions for failure to comply with the Practice Direction
• Failureto give the Claimant’s full name and address
• Failureto state clearly the basis on which the claim is made (i.e. why the claimantsays the defendant is liable);
• Failureto explain how if financial loss is claimed the amount claimed has beencalculated
• Failureto list the essential documents on which the Claimant intends to rely
• Failureto set out the form of Alternative Dispute Resolution that the Claimantconsiders most suitable and invite me as defendant to agree to.


These letters were obviously sent to intimidate me into paying a speculativecharge and not sent with a view to reaching an agreement.





I Believethat the facts stated in this document are true,















.......................................................(The Defendant).

Coupon-mad

Looks good as a first draft.

I thought that you could add some cases as 'compelling recent small claims court decisions' where a parking agent has been found not to have the standing to pursue these charges in court as they are the wrong claimant:

http://forums.moneysavingexpert.com/showpost.php?p=62971894&postcount=65

Add the Sharma and Gardam cases into the paragraphs about BSG not having the standing or assignment of rights to pursue a charge for alleged breach/loss. These are good ones as they are very recent and the court transcripts are available from Bargepole on this forum, if you do need to attend court you can take them with you for the judge to see.

And there have been 3 cases recently where ParkingEye have just lost on the fact they made no loss (you can cite the latest one PE v Heggie in your defence but the other two wins from last week aren't being added until January to our lists). There's Civil Enforcement v McCafferty as well on that list which was found in the defendant's favour due to lack of signage/contract, and no loss.

You can state that ParkingEye and Civil Enforcement cases are relevant evidence in a defence to a private parking charge allegation because they allege 'breach of terms/failure to comply' using a very similar business model as a parking agent.

Don't forget that to get your defence in, you have 28 days 'from service' (service being assumed to be 5 days I think, have a look on your paperwork). So it's not a straight 28 days, it's a little longer.