Help! County Court Claim from Premier Park LTD

chili_pea

Please can people help with this defence I have drafted with the help of MSE:


I would like to defend this county court claim. The parking 'charge' notice exceeds the appropriate amount. Premier Park LTD is requiring payment from me as the Registered Keeper under Schedule 4 of the Protection of Freedoms Act 2012. I say they have not met all the conditions imposed by this Act and so there is no obligation or liability on me at all. In addition they have failed to show that this standard fixed charge in that car park is a genuine pre-estimate of loss, have not formed any fair contract with the driver to justify the amount demanded and have not complied with all aspects of the BPA Code of Practice.
1. It is admitted that Defendant is the owner of the ****
2. The defendant is unable to admit or deny the precise times she was parked in ***** as she has no recollection of this. The claimant is put to proof of the same. Evidence shows this as original Parking Charge Notice is dated the 19/06/2013 and the photographs taken by Premier Park LTD are dated the 12/06/2013.
3. It is denied that the Claimant has complied with schedule 4, Protection of Freedoms Act 2012 as follows,
• Penalty Clauses – Under English law, penalty clauses designed to punish a breach of contract are not enforceable. These clauses may only be upheld if they are a genuine pre-estimate of loss/damage suffered by the other party.
• Lack of contract – A recent tax case suggested that a parking company was not capable of entering into a contract with motorists because it did not have authority from the landlord to give the motorists the right to park. The company had authority to manage the car-park generally but this was not enough. Accordingly, Premier Park LTD should be put to proof that the landowner has given them proper authority to enter into a contract with the motorist. Evidence shows contract between Defendant and landowner/landlord which has no reference to parking terms and conditions that are enforced by a Private Parking Company.
• Unfair Contract Terms in Consumer Contracts Regulations – This provides that “A contractual term which has not been individual negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer” Evidence shows a letter from the Defendants counsellor and a crime reference number (****) relating to an incident that happened seven weeks before the Defendant “Parked in a no parking area” This was made aware to Premier Park LTD in the Defendant’s first appeal. As a result of this incident the Defendants income decreased by 50% Therefore the Defendant had no access to an income to cover the costs of the parking ticket.
4. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC (2012) UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not entering into a contract with the Defendant on its own account, as the car-park is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring the claim. The proper Claimant is the landowner.
5. Alternatively, even if there was a contract, the provision requiring payment of (£155.03) is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre CO LTD v Selfridge & Co Ltd (1915) AC 847, Clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons: (a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a parking in a no parking area; (b) the amount claimed is evidently disproportionate to any loss suffered by the claimant; (c) the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and (d) the clause is specifically expressed to be a penalty on the Claimant’s signs.
6. Further and alternatively, the provision requiring payment of (£155.03) is unenforceable as an unfair term contrary to Regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph (e) of the Regulations being a term “requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation”. The term was not individually negotiated and causes a significant imbalance in the parties’ respective rights and obligations, because the charge is heavily disproportionate in respect of parking in a no parking area and is imposed even where consumers are legitimately using the car-park for its designated purpose.
7. Save as expressly mentioned above, the Particulars of Claim is denied in it’s entirely. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

Coupon-mad

Get rid of this bit as this is POPLA wording:

''The parking 'charge' notice exceeds the appropriate amount.''

And the rest is pretty good as a basis I think - why was their PCN dated 19th if it was plonked on the windscreen on 12th?!

Did they send a compliant Letter before Claim? If not then point that out (read the 'LBCCC Fightback' sticky thread to check). A judge might not take kindly to a firm which did not bother to follow the Practice Direction against an unrepresented, individual inexperienced defendant so use their failings to your advantage.

I think you should also add a clear point that it is denied that PP have a right to make this claim since they don't own the car park site and are a mere agent...so they are not the right claimant, as in ParkingEye v Sharma and ParkingEye v Gardam - case details here:

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


HTH

Umkomaas

Coupon-mad wrote: »

Get rid of this bit as this is POPLA wording:

''The parking 'charge' notice exceeds the appropriate amount.''

And the rest is pretty good as a basis I think - why was their PCN dated 19th if it was plonked on the windscreen on 12th?!

Did they send a compliant Letter before Claim? If not then point that out (read the 'LBCCC Fightback' sticky thread to check). A judge might not take kindly to a firm which did not bother to follow the Practice Direction against an unrepresented, individual inexperienced defendant so use their failings to your advantage.

I think you should also add a clear point that it is denied that PP have a right to make this claim since they don't own the car park site and are a mere agent...so they are not the right claimant, as in ParkingEye v Sharma and ParkingEye v Gardam - case details here:

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


HTH

Bargepole over on PePiPoo has offered transcripts from these cases (he's also a member here on MSE- under same name).

http://forums.pepipoo.com/index.php?showtopic=86421&st=0&p=907256&#entry907256

SevenTowers

You should also contact Pranky;

https://forums.moneysavingexpert.com/discussion/4851371

I'm sure he'll extend this offer to Premier Parking

chili_pea

Coupon-mad wrote: »

Get rid of this bit as this is POPLA wording:

''The parking 'charge' notice exceeds the appropriate amount.''

And the rest is pretty good as a basis I think - why was their PCN dated 19th if it was plonked on the windscreen on 12th?!

Did they send a compliant Letter before Claim? If not then point that out (read the 'LBCCC Fightback' sticky thread to check). A judge might not take kindly to a firm which did not bother to follow the Practice Direction against an unrepresented, individual inexperienced defendant so use their failings to your advantage.

I think you should also add a clear point that it is denied that PP have a right to make this claim since they don't own the car park site and are a mere agent...so they are not the right claimant, as in ParkingEye v Sharma and ParkingEye v Gardam - case details here:

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


HTH

Thank you Coupan Mad.
This is really helpful. A user on Pepipoo told me my defence was rubbish and to get on with it. I'm slowly starting to dislike that forum.

I've made that little adjustment so far about the POPLA sentence.

Looked at the LBCCC thread and briliant thread. I don't think Premier Park sent anything like this. Only from a debt company (Zenith)
So should I add that on to the end or try and incorporate this point into one of the "Protection of Freedom Acts 2012"?

Thanks for the case details they are very good points. Would I
be able to use those as an example instead of Dunlop the "Pneumatic Tyre CO LTD v Selfridge & Co Ltd (1915) AC 847" case I have used in point 5?

Thank you so much

chili_pea

Oh and your guess is as good as mine as to why their ticket it dated the 19th if it was plonked on the windscreen the 12th!?
Surely that counts for something that they can't issue a ticket on the correct date

bargepole

chili_pea wrote: »

Thank you Coupan Mad.
This is really helpful. A user on Pepipoo told me my defence was rubbish and to get on with it. I'm slowly starting to dislike that forum.
...

That defence is a very old, and no longer relevant, template downloaded from CAG, I think. And basically yes it is rubbish. It quotes Dunlop v Selfridge, which is the wrong case, it should be Dunlop v New Garage.

The one I've sent you via your PM on the other site (the one you're starting to dislike) is in the approved format, and contains all the relevant cases with transcripts.

I don't post these on the forums, because people just send off a template which may contain stuff which is completely irrelevant to their case, and then wonder why they lose.

chili_pea

Thank you Bargepole you have restored my faith in that site.
It's just unfortunate a couple of users that reply to my thread on their are quite unhelpful with their comments which makes this whole process even more stressful. I do really appreciate your help though thank you so much

chili_pea

bargepole wrote: »

The one I've sent you via your PM on the other site (the one you're starting to dislike) is in the approved format, and contains all the relevant cases with transcripts.

Starting to read through your defence. Unfortunately the first paragraph isn't relevant to my case.
It was outside of my own home that I was ticketed. Its not a retail park, its owned part council part private by a company called Mainstay. Premier Park recently started to enforce parking regulations that have been instructed by Mainstay.

Because of my circumstances not being in a retail park does that mean the transcripts are not relevant to my case?

bargepole

chili_pea wrote: »

Starting to read through your defence. Unfortunately the first paragraph isn't relevant to my case.
It was outside of my own home that I was ticketed. Its not a retail park, its owned part council part private by a company called Mainstay. Premier Park recently started to enforce parking regulations that have been instructed by Mainstay.

Because of my circumstances not being in a retail park does that mean the transcripts are not relevant to my case?

No, they are still relevant because they establish that the PPC isn't the landowner, and that there was no genuine pre-estimate of loss.

As stated, you will need to edit those paragraphs to fit the circumstances.