UKPC & county court business centre form received

Bobby2k2

Thanks for this.

Really appreciate your help thus far

Bobby2k2

By way of an update...

Recieved a 'Notice of transfer of proceedings' today.

No court date as yet though..

Marktheshark

Learn how county courts work and get keyed up that the judge will dismiss your points and expect you to argue the case with them, practice speaking softly and slowly but very firmly and remember words like "with all due respect but I feel the point of xxxx has not been examined correctly and I shall explain ....

Coupon-mad

OK, so we'll see if this ends up in a hearing or not. At least Mary won't be in charge!

Bobby2k2

[Learn how county courts work and get keyed up that the judge will dismiss your points and expect you to argue the case with them, practice speaking softly and slowly but very firmly and remember words like "with all due respect but I feel the point of xxxx has not been examined correctly and I shall explain ....

Thanks, I'll need to work on this

OK, so we'll see if this ends up in a hearing or not. At least Mary won't be in charge!

Thats a relieve!

Bobby2k2

UPDATE:

I am now in receipt of a 'Notice of allocation to the small claims track (Hearing)'

The date is the LAST week in June. A District Judge Zimmels has allocated it.

The notice states that 'each party shall deliver to every other party and to he court office copies of all documents on which he intends to rely at the hearing no later than 8 April 2016.

emekaumeh

I should be very grateful if someone could help me here.
I have received this claim form for £228 presumably regarding a parking offence in December 2014! I recall parking at a fast food joint in Huddersfield, queueing up for food, realising that I forgot my wallet, drove to my Hotel 5 minutes away, returning to find my parking space vacant, and parking for less than 40 minutes or so. I think the maximum time on notice was an hour.
I latter received a letter stating that I had overstayed and owed some amount. Unfortunately, in my frustration, I had destroyed all their letters.
I have now acknowledged their claim online. I find this seriously unfair and unwarranted.
I am innocent of their accusation but I do not know how to prove it! Can someone please help! (Issue date of claim = 4/03/2016)

Coupon-mad

Start your own thread, please. It's too confusing to try to advise on separate cases in the same thread.

Bobby2k2

Hi guys

I have been working hard on my full defense for the above claim. I have looked at the links in the newbies thread and used some of the examples to help me.

I have never had to to anything like this and am struggling. I have provided my first draft below and would really really really like some advise on it. I will provide a copy of my witness statement over the weekend - I have less than one week to submit...


Statement of Defence

1.
The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case:

i. The Claimant has no standing to bring a case
ii. The signage is illegible, therefore does not offer a contract with the driver
iii.The charge is disproportionate/not based upon any loss nor commercial justification.
iv. The claimant has not complied with Schedule 4 of the Protection of Freedom Act 2012 (POFA 2012).

2.
The Claimant has not produced a contract that explains what authority it has to bring the claim. The defendant believes that there is no such contract in place with the land owner which means that the claimant does not meet the conditions of paragraph 5(1)(a) in the POFA 2012 and therefore the claim is null and void. ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings.

*** I have the records from Land registry is – The hope is that when they eventually do show the ‘contract’ they have it will show that it is not with the land owner but with an agent and therefore have no locus standi to bring about a claim.

3.
The 'parking charge' and terms on the sign are not legible, this is further evident frown the claimants own evidence where the photographs included in their response to the part 18 request. If the charge/sign/details can't be read in daylight or darkness in UKPC's own evidence pictures, how can the driver be considered by the act of parking, to have agreed to a contract to pay it? Ths clearly does not comply with paragraph 12(3)(c) as the claimants own employee was unable to get a good view of the signs.

*** I will evidence the grainy, illegible, highly placed tiny print photos that were provided by UKPC.

4.
The Defendant has the reasonable belief that the Claimant has attempted to Claim an expense that was not incurred according to their own so called agreement. Specifically, the £90 charges displayed on a document provided by the claimant has been inflated by £10. The Claimant is therefore in breach of their own so called agreement and has not complied with 12(3)(b).

*** This refers to a piece of evidence provided by UKPC as part of their limited response to my part 18 request: As mentioned above they provided grainy photos of their signs which were quite high up and in small print. I addition to this they also provided what I describe as a black & white ‘proof’ image of signage. This is clearly not the actual but a paper version of what it ‘should’ say. The problem with this is that it states that failure to comply will result in a £90 parking charge however, the PCN with NTK attached has been charged at £100 (£10 more than stated on their document).


5.
The above claim is for a total of three penalty charge notices of which the claimant has only produced one notice to keeper. The claimant has therefore has not complied with the condition of paragraph 6(1)(b) of the POFA 2012.

6.
There are also discrepancies with the other alleged penalty charge notices however, as the claimant failed to issue a notice to keeper so I am unanswerable to them.

7.
The Defendant further asserts that the Claimant has ignored the Government’s clear intention as expressed in the Department for Transport Guidance on the Recovery of Parking Charges:

Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken.
For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.


8.
The judgment in VCS v Ibbotson (2012) makes clear that only the costs that directly result from the parking may be included, not an arbitrary proportion of normal business costs. A Retailer v Ms. B & MS. K (1UC71244) citing R+V Versicherung AG v Risk Assurance and Reinsurance Solutions SA (2006 EWHC 42) and Aerospace Publishing Ltd v Thames Water Utilities Ltd (2007 EWCA Civ 3) dismissed a claim for the costs of security staff dealing with shoplifters who had deliberately attempted to cause a loss to the claimant. The court stated that the claimant had to establish that the conduct caused significant disruption to its business. Security people, far from being diverted from their usual activities, were in fact actively engaged in them and doing just what they were paid to do. Neither could any administrative or security costs be claimed. The amounts spent by the claimant would have been identical if the defendants had stayed at home or limited their shop-lifting to other establishments


9.
Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive :
With regard to the question of the circumstances in which such an imbalance
arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.

10.
The Defendant has reasonable belief that the Claimant is a disreputable company that has recently been investigated by the DVLA for alleged fraud and certain breaches of the BPA CoP in altering times on photos to make profits from drivers who had not contravened at all. The claimant has had to refund those which were discovered to be false as part of that investigation and were lucky to remain in the BPA That company’s activities were also reported in a number of local papers one being The Telegraph.


14.
The Defendant invites the court to strike out the claim as having no prospect of success

I believe the facts stated in this defence are true.





PLEASE HELP!

System

@Bobby2k2

Seems you are in the London circuit based on the DJ mentioned. But can you explain why the parking in a resident's bay is such a "crime" at that site.

Did you for example parked in someone else's bay or are all the bays available for all the residents (and their guests - hat tip TD)

The amount they are claiming can only be justified is it is in pursuit of an aim to benefit all the residents. Your partner's lease / rental agreement should explain the do's and don'ts of parking there. Dig it out and quote from it if it supports your case then add:

"Careful analysis of the Supreme Court judgment (ParkingEye v Beavis) is not ,as the Claimant may believe, a judicial green light legitimising all parking charges.It is indeed quite the reverse , and the onus is on the Claimant to demonstrate that they have a legitimate interest in enforcing their charge and that the charge is proportionate to that interest. In this case they do not and it is not. " (Hat tip: Salmosalaris)