UKPC & county court business centre form received

Bobby2k2

I hope you are lucky if the Judge allows you to expand on the defence in view of the lack of particulars. Small claims is a lottery, by all accounts of those with experience on this forum (and from what we've leanred over the years) almost a law unto itself and much will depend upon your local court/Judge how this goes. You are fighting it as best you can, which is admirable.

Thanks

Just wondering, where I do include additional points should I explicitly state that they weren't in the original defense but I am including them now due to the lack of particulars or should I wait to see if the judge questions or the claimant questions it and explain then?

Bobby2k2

You can still use "peaceful enjoyment" but you'd have to be clear you were there as a guest of the leaseholder/tenant. As a guest there still are rights but not as strong as those who live there.

Thanks IamEmanresu:

If I do say this then would that not change my stand point from defending as registered keeper to driver? I have never identified the driver So would it be better to keep it this way?

System

Its a valid point but if you suspect they have identified you by now you may want to have it as a back up. You may just want to keep it as a note to yourself if this sees the inside of a a court - most don't.

Bobby2k2

For whats its worth, I thought I would post the latest draft of my defense. Hopefully it will help anyone in the same position as me.... I still need to tweak it, double space and add the exhibit numbers once I source them but it shouldn't differ much from this.

I will also post the witness statement once complete. Need to have this all in before the end of the week.:eek:

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 Schedule 4 of the POFA 2012 and therefore the claim is null and void. ParkingEye v Sharma (3QT62646 Brentford County Court, Exhibit…) 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, Exhibit …) 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, Exhibit…) 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 – 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 Claimant has stated that they will provide a copy of the contract with the landowner(Exhibit…) at the hearing. The Defendant has reason to believe that it will not comply with the British Parking Association (BPA) Approved Operator Scheme Code of Practice (Exhibit.., page…)

***[http://www.britishparking.co.uk/write/Documents/AOS/609_AOS_CoP_June_2013_update.pdf (7)

4.
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) (Exhibit ….) 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.

5.
The Claimant has not produced any evidence to show they have complied with the BPA Approved Operator Scheme Code of Practice (Exhibit …, page..) by providing clear and prominent entrance signs. The BPA state that ‘Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area’

****http://www.britishparking.co.uk/write/Documents/AOS/609_AOS_CoP_June_2013_update.pdf (18.2) Entrance signs

6.
The 'parking charge' and terms on the sign are not legible, this is further evident from the Claimant’s own evidence by way of 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 (Exhibit……..), how can the driver be considered by the act of parking, to have agreed to a contract to pay it? This 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.
**Unlike Beavis (whose were clear & prominent)

7.
The Claimant’s evidence is based upon illegible signs where the terms and sum of the parking charge cannot be read; contrary to Schedule 4 of the POFA 2012:

(2) The reference in the definition of “parking charge” to a sum in the nature of damages is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land).
(3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by—[...] the display of one or more notices which—
(i) specify the sum as the charge for unauthorised parking; and
(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

8.
The evidence supplied by the Claimant as a result of the part 18 request evidences in an isolated close-up version of the signage, that it actually only provides for a charge of £90. There is therefore no evidence of any sign creating a contract to pay £100.

9.
The same evidence referred to in paragraph 7 above also only provides a premium rate number to be contacted on. This does not comply with the BPA Approved Operator Scheme Code of Practice (Exhibit …, page..)

****http://www.britishparking.co.uk/write/Documents/AOS/609_AOS_CoP_June_2013_update.pdf (18.7) Premium rate number

10.
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) in Schedule 4 of the POFA 2012 (Exhibit….) (Squeeze)

11.
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.

12.
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.

13.
Careful analysis of the Supreme Court judgment (ParkingEye v Beavis) Exhibit… 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.

14.
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. (Add exhibits)

15.
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 Approved Operator Scheme Code of Practice (Exhibit …) 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 (exhibit…).

16.
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.

Coupon-mad

That's useful to see - and your witness statement too. Examples for others behind you in the process.

Even if a Judge was swayed by the Beavis case as far as some vague 'legitimate interest' is concerned, you have good basic and solid 'look no contract/no clear signs' points in your favour there, such as the signs provided as evidence show £90, not £100. After all the Beavis case was dependent upon very clear and prominent signage showing the terms & parking charge sum in large lettering. Not here.

As IamEmanresu says, not many cases actually see a court room in the end. Keep the faith. You are doing all you can to head them off.

Bobby2k2

Thanks @Coupon-mad

This is my witness statement. It is more personal to me especially as I've tried to strategically emphasise some points that I felt are key to some of my arguments.

Once finalised, I plan to send this by Special Next Day delivery by this (Wednesday) evening or at the very latest Thursday morning however, if yourself, IamEmanresu or any other knowledgeable person is able to comment or make any last suggestions before then please feel free


Claim Number:
UK Parking Control v Bobby2k2
Witness Statement of Defendant


1. My name is XXXXXXXXXX. I live at XXXXXX I am the defendant in this matter. I make this statement from my own knowledge and personal experience.

2. On the relevant dates of **th ******** 2013, **th ******* 2013 and **th ***** 2014 I was the registered keeper of a vehicle with the registration mark of XXXXX.

3. I am no longer the registered keeper of the above vehicle.

4. I received a notice to keeper and final reminder dated **th ******** 2014 and the **th ******** 2014 respectively for PCN number xxxxxx (dated **th ******** 2014).
***stated to set up paragraph 6

5. At the time I did not respond to any of the above because for reasons I have expanded upon in my defense.

6. I received a letter dated the **th ********* 2015 from Small Claims Solicitors (exhibit…) regarding three outstanding PCNs, PCN number xxxxxxxxxcx (above) and two other PCNs of which I have never received any correspondence regarding prior to this.

7. This letter coincided with Claimant being disciplined by the British Parking Association (BPA) and investigated by the DVLA for alleged fraud and certain breaches of the BPA Code of Practice in altering times on photos to make profits from drivers who had not contravened at all. I therefore considered the demand baseless and from a non-legitimate 'rogue' parking operator which issues doctored tickets with false timings found to be endemic at more than one site. (Exhibitx2…)
***just to remind the judge

8. I received a letter dated **th ********** 2015 from Small Claims Solicitors (SCS) with Particulars of Claim enclosed. (exhibit…)

9. On the **th ******** 2015 I submitted a Part 18 request for further and better particulars to the SCS via post and email.

10. On the 27th December 2015 I submitted my initial defense so as to comply with the time constraints.
***Basically before the part 18 was responded to - limited info provided at the time

11. I received a letter dated ** ********** 2015 from SCS (Exhibit….) in response to my part 18 for further information. The response included and was not limited to
(i) Illegible photos of signs, taken at the time of the alleged contravention
(ii) A copy of only one notice to keeper (as mentioned above)
(iii) An isolated close-up version of their signage and a map of the site.
(iv) Installation date of signage given as 22/06/2012
The claimant however, refused to provide a copy of their contract with the landowner
*****I'll refer to this in case to justify additional points not included in original defense.

12. I filed my directions questionnaire on the County Court business Centre (CCBC) and SCS on the 8th January 2016 by way of recorded delivery and received a certificate of posting (Exhibit…).

13. I received an order from the court dated the **th ********* 2016 stating to file the said Direction Questionnaire with the CCBC on or before 7 days from service of the order. I responded via email and informed the CCBC that this had already been done as per above and that it had been received and signed for by the CCBC on the 11th ********** 2016 and provided proof of this (Exhibit…). I also forwarded an additional copy of Directions Questionnaire within the same email.
***This was their mistake but wanted to highlight in case it is used against me.

14. On the **th ******** 2016 I receive Notice of Allocation to the Small Claims Track.

I believe that the facts stated in this witness statement are true

bod1467

Please edit your post to mask the PCN numbers and dates (and any other info that could identify you prior to the case).

Bobby2k2

:money:Thanks!

Coupon-mad

Looks good to go.

Bobby2k2

Defence and witness statements as well as exhibits all submitted to court and UKPC.

Haven't had any documents from UKPC since part 18 request but let's see what turns up in the next couples days.

Hearing is set for end of June but I will keep the thread updated.