PPS - POPLA Appeal

DevonChap

Hi Team

After fighting my ticket through every step since 2014, I have now received my County Court Claim

Details of the case are (can't post full links sorry)
forums.moneysavingexpert.com/showthread.php?t=5152441
forums.moneysavingexpert.com/showthread.php?t=5869535


I have submitted my Acknowledgement of Service - The Issue date of the claim is 8 Oct 2018

Interestingly I have noticed that in the "Evidence Pack" that PPS provided to POPLA there are several Terms and Conditions signs (all small and unlit at night) - The interesting point is that they differ - The main board next to the ticket machine has 11 points - the one fixed to the back of the machine has 14 points!

I also believe that their signage is misleading - as I understood the charges only to apply 8am until 8pm (however there was a nighttime charge further down the sign). This is the trap I fell into.

Anyway - here is my "Defence", and I would welcome any comments that anyone may have

Regards
DevonChap


IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Premier Parking Solutions LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in the car park stated and had purchased and displayed a ticket.

3. The Particulars of Claim give no indication as to why a PCN was issued. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The terms on the Claimant's signage are also unlit. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract during periods of darkness.

8. The claimant’s signage also contains differing terms and conditions at different locations within the car park. It is therefore denied that the Claimant’s signage is capable of creating a legally binding contract.

9. The claimants signage is misleading and therefore it is claimed that the contract is unfair under the Consumer Rights Act 2015. Accordingly the unfair term is not binding on the Defendant.

7. The Claimant is put to strict proof that it has sufficient prorpietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. This charge is not specified in the Terms and Conditions displayed.

9. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

KeithP

DevonChap wrote: »

I have submitted my Acknowledgement of Service - The Issue date of the claim is 8 Oct 2018.

With a Claim Issue Date of 8th October, and having done the AoS in a timely manner, you have until until 4pm on Monday 12th November 2018 to file your Defence.

Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Is there a good reason why you didn't continue this saga on your existing thread?

In my opinion, you would be wise to ask a board guide to merge your two open threads. That would save others having to check elsewhere for background information.
I don't know, but maybe a board guide is able to merge your older closed thread too. Worth an ask I would think.

DevonChap

Thanks Keith - Happy for the threads to be merged - The reason to start a new one is that as it has now got to this stage I thought the title of teh thread should include "County Court Claim..."

Redx

DevonChap wrote: »

Thanks Keith - Happy for the threads to be merged - The reason to start a new one is that as it has now got to this stage I thought the title of teh thread should include "County Court Claim..."

which you could have edited the original thread title, or asked a board guide to edit it for you (and still can)

KeithP

Feel free to change the title of your thread anytime you wish.

Click on edit on your opening post,
Then Go Advanced,
Then type what you want to see in the title box,
Click on save a couple of times and the job's done.

South_Hams_Starstream

Hi, I think we may have been in the same car park as you (April this year though) and we've just been back to take photos - but think the notices have been changed, looks like PPS have stuck over new ones, but we don't know when this was done. If you have any inkling about that be good to know and that apart, good luck, watching your claim closely and trying to figure out if we can use same defence. Many thanks.

DevonChap

Kieth - I can't edit the original thread (back in 2014) because it is "closed" - I hope its OK to continue here.

To recap - It was dark, and the signs are unlit. The driver paid until what they thought was the end of the charged period, not seeing the separate charges for parking after 8PM - The driver believes that the wording of the sign is a form of trap - especially when they can't be read clearly in the dark.

Overall it is claimed that the signs are poor, and the font small that the contract (to pay £100) has not been entered into.

Through photographs provided by the parking company (in daylight) to POPLA it is clear that there are various different T&C's posted in the car park


South Hams - I think they have also changed from being BPA members to IPC registered - which may be why the signs have changed (I haven't been back since 2014!)


Reading through various defences against BW Legal there are several approaches to the double claim for legal fees

They have included £60 in the particulars of claim - which apparently is in the T&C's (its not) and also £50 as Legal representatives costs, along side the Court Fee.

Various defences are objecting to both these charges - should I also include a defence to the £50?- along the lines of

"In the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £xxxxxx This would be more than double recovery, being vague and disingenuous. Such costs are not permitted (CPR 27.14) "

Regards

KeithP

DevonChap wrote: »

Kieth - I can't edit the original thread (back in 2014) because it is "closed" - I hope its OK to continue here.

Do what you think best.

I only made the suggestion that the threads be merged because it is quite likely that others will not be prepared to go searching for the 'history'.

I did say:

In my opinion, you would be wise to ask a board guide to merge your two open threads. That would save others having to check elsewhere for background information.
I don't know, but maybe a board guide is able to merge your older closed thread too. Worth an ask I would think.

But if you don't want to ask, that's ok too.

soolin

Hopefully everything is now merged and a time line is easier to follow.

DevonChap

Hi

Any final comments before I submit my defence to the court?

I have corrected the paragraph numbering
I have included some text from the BPA - which they were members of at the time regarding signs at night and included a defence for both the legal fees that they have added (P11&12)

Thanks

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Premier Parking Solutions LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in the car park stated and had purchased and displayed a ticket.

3. The Particulars of Claim give no indication as to why a PCN was issued. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

6. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

7. The terms on the Claimant's signage are also unlit. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract during periods of darkness.

The British Parking Association ("BPA") Code of Practice sets the requirements for entrance sings. The following requirements are mandatory:
(a) The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.
(b) Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement takes places at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retroreflective material similar to that used on public roads and described in the Traffic Signs Manual.

8. The claimant’s signage also contains differing terms and conditions at different locations within the car park. It is therefore denied that the Claimant’s signage is capable of creating a legally binding contract.

9. The claimants signage is misleading and therefore it is claimed that the contract is unfair under the Consumer Rights Act 2015. Accordingly the unfair term is not binding on the Defendant.

10. The Claimant is put to strict proof that it has sufficient prorpietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

11. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. This charge is not specified in the Terms and Conditions displayed.

12. In the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £xxxxxx This would be more than double recovery, being vague and disingenuous. Such costs are not permitted (CPR 27.14)

13. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date