Premier Park Limited - Now a Court Claim

thorfan

Hi folks... I recently returned from working overseas (again!) to find that I had been caught up in the Premier Park Ltd./BW Legal love-fest from earlier in the year. Having caught up on all the new advice, Premier Park Ltd. got a SAR and a follow up when I decided they didn't do a good enough job. They still didn't the second time, but I'll be taking that up with the ICO later on as I know they failed to include at least one item in their possession.

BW Legal also got a Data Processing hold, but they ignored it until the 30 days of Premier Park Ltd.'s SAR had expired. In fact, Premier Park Ltd. got their first response back to me before BW Legal acknowledged the hold. This will come up in my complaint to the SRA later in the process!

Anyway, roll on another month and I have got my Claim Form from the CCBC. I have done my AOS and began my defence (five sides of A4 so far!), but I just wanted to check my dates...

So:
17/07/19 - Date of issue
18/07/19 - AoS completed online
19/08/19 - Defence deadline? (Why 33 days?)

If that date is correct, I will get my draft defence up in the next few days. Its too long at the moment so I want to cut it down.

Now, back to my beer! :beer:

Redx

KeithP will confirm your dates and tasks etc soon I think


I would advanced edit your thread title to something more suitable like Court Claim -- Premier Park Limited or similar (or pm a board guide to edit it)

thorfan

Cracking idea... i'll get on to it!

freester

Gah scammy scam scammers scams (replace scam with 4 letter words of choice).


I had some dealings with Premier Park Ltd around the same time as you. All went quiet after my POPLA got rejected.



I think mine was issued around 2 months after yours. Must keep an eye out for some paperwork in the post and be prepared to update my thread.


******* the lot of 'em.


Keep us updated.

KeithP

thorfan wrote: »

I have got my Claim Form from the CCBC. I have done my AOS, but I just wanted to check my dates...

So:
17/07/19 - Date of issue
18/07/19 - AoS completed online
19/08/19 - Defence deadline? (Why 33 days?)

If that date is correct, I will get my draft defence up in the next few days.

Your target date is correct.


With a Claim Issue Date of 17th July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 19th August 2019 to file your Defence.

That's nearly three weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the 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 "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep 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.

Why 33 days?

Can I just point you towards page 14 of the Money Claim Online (MCOL) - User Guide, where it says:

How long does the defendant have to respond to my claim?

The court will send out a claim pack to each defendant once the claim has been issued and allows 5 calendar days from the date of issue for the service of the claim. Therefore the 'date of service' is the 5th calendar day after issue.

The defendant has 14 calendar days from the 'date of service' to file a response. If the last day for filing the response falls on a day that the court is not open (i.e. a weekend or public holiday), the court will allow the next full working day for a response. The defendant can extend the time to respond to 28 calendar days by filing an acknowledgment of service (AOS).

thorfan

“
How long does the defendant have to respond to my claim?

The court will send out a claim pack to each defendant once the claim has been issued and allows 5 calendar days from the date of issue for the service of the claim. Therefore the 'date of service' is the 5th calendar day after issue.

Ahh, I missed that bit!

KeithP

It does actually say on the back of your Claim Form:

followed by:

thorfan

KeithP wrote: »

It does actually say on the back of your Claim Form:

followed by:

Many thanks KeithP, I hadn't put two and to together on that. Doh!

thorfan

Ok, I have tried to change the thread title to better reflect the current situation, but it is not taking. I have PM'd the board guides to see if they can do it for me but it might be a little late as there is a 70 day limit on changing title if the information in this thread is correct... https://forums.moneysavingexpert.com/discussion/5640970/how-to-edit-thread-title

thorfan

I have been ruthlessy stealing bits from other defences and this is what I have come up with. I feel it might be a bit wordy, but if you could see some of the reports I put together at work, you would know that's my style!

IN THE COUNTY COURT
Claim No: xxxxxx
Between

Premier Park Limited (Claimant)
and
XXXXX XXXX (Defendant)

DEFENCE

BACKGROUND

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

2 The claim relates to a purported debt from the incorrect issue of a Parking Charge Notice (PCN) as a result of an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at <address> on xx/yy/zzz.

2.1 The vehicle with registration mark XXXX XXX, of which the Defendant is the registered keeper, was parked on the material day correctly and within a designated bay, a ticket was purchased from a Pay and Display Terminal (PDT) and there was no overstay. The ticket failed to record the full Vehicle Registration Number (VRN) of the vehicle in question. The ticket was valid in as much as the correct tariff to cover the period of parking was paid and sufficient VRN was entered to positively identify the vehicle in question.

2.2 Proof of payment, in the form of a photograph of the purchased ticket, was supplied to the Claimant at their internal appeal stage and as demonstrated later the Claimant acknowledge that it existed.

2.3 The PCN stated the contravention as 'Parking Session Expired or Unpaid' and this contravention is denied. The Defendant denies liability for the purported parking charge or penalty, not least because a correct parking charge or tariff, sufficient to cover the period of parking, had been paid.

2.4 In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach. In this case the driver entered the VRN of the vehicle but the PDT machine failed to record it properly. The driver then appended the complete registration in pen to the ticket.

2.5 The principle of de minimis applies here, namely that this is a legal action for technical breaches of rules or agreements where the impact of the breach is negligible.

3 The driver paid for a ticket that appropriately covered the time period that the car was parked. The Claimant's own response during the independent appeals process (POPLA) states "The ticket was printed with only the first two letter **" Despite being factually incorrect, as the ticket showed the registration xy, this clearly demonstrates that the Claimant agrees that a ticket was purchased, and the untrue allegation of "Parking Session Expired or Unpaid" is denied.

3.1 The Defendant has tried through the Subject Access Request process to obtain a copy of the Pay and Display Machine Data being relied on by the Claimant, suitably redacted to obscure information that does relate to the Defendant's vehicle. This has been refused on two occasions by the Claimant.

3.2 Given the fact that the ANPR data did not match with a payment made, an automated PCN was issued. It was within the gift of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose, including that they correctly record data inputted by a driver. A PCN in these circumstances is completely foreseeable by a professional parking firm, and it is averred that this punitive charge relies upon the Claimant's own data being wrong at the outset.

3.3 The Claimant has failed to demonstrate that it made any effort to conduct a 'near-miss search' of payments made but without corresponding ANPR images. This search would have shown a payment was made covering the period of alleged non-payment. The Defendant is put to strict proof that it has conducted a search of their record system for a payment made with the VRN recorded on their own ticket. The Claimant is relying on an automated process to minimise their staffing overhead, whilst maximising their profits.

3.4 It is clear that the Claimant is trying to claim an excessive amount for what is a failure of their own equipment. It is ridiculous to suggest that any driver, when asked to enter their car registration, would enter only the first two letters. In fact, it can be demonstrated that the vehicle XXXX XXX had been in the very same car park on an earlier date, when the correct registration was entered into one of the Claimant’s machine and accepted.

3.5 It should be evident that the conduct of the Defendant should not have caused the penalty to arise and a professional parking firm could not reasonably lay any blame with the Defendant, for a failure of their own machine. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith.

SPARSE PARTICULARS AND DENIAL OF CONTRACT

4 The Particulars of Claim state that "...monies due... in respect of a Parking Charge Notice (PCN) issued on xx/xx/xxxx...". The Particulars of the Claim do not meet the requirements of Practice Direction 16 7.5 as there is no detail as to why the PCN was raised and what terms were breached.

4.1 Due to the sparseness of 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 whether expressly, implied or by conduct:

a. A contract was formed to pay anything more than the advertised tariff
b. There was any agreement to pay a further penalty parking charge
c. That there were Terms and Conditions prominently displayed on the machine which prominently displayed the £100 penalty
d. In addition to any parking charge there was an agreement to pay additional and unspecified sums
e. The Claimant in fact expended the claimed additional sums
f. The Claimant fully complied with their obligations within the British Parking Association Code of Practice

FAILURES IN SIGNAGE

5. 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. The important requirement of entering a full VRN into the ticket machine should be made clear to drivers in prominent lettering at the ticket machine and that failure to do so would incur a parking charge of £100.

5.1 The mandatory information regarding the fact that ANPR is used for enforcement purposes in the terms and conditions are in such a small font at the very bottom of the signage as to make it unreadable. It does not state specifically that the ANPR images will be compared to data from the ticket machine for the purpose of issuing a £100 penalty. It is denied that the Claimant’s signage is capable of creating a legally binding contract.

5.2 Furthermore, nowhere on the Claimant's signage does it offer a process or technical help number that may have allowed to the driver the opportunity to alert the Claimant of the failure or their machine to correctly record the VRN of the vehicle in question.

CONSUMER PROTECTION

6 Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015.

6.1 The Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 is defined as ''an obligation arising under the terms of a relevant contract''.

6.2 The Defendant avers that there was no such obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

6.3 According to the Consumer Rights Act 2015, any goods purchased must be ‘fit for purpose’. The Ticket that was issued was not ‘fit for purpose’ The Claimant took the Defendant’s money to issue an invalid ticket and now wants to charge the Defendant a penalty for having an invalid ticket.

UNCONSCIONABLE AND INFLATED CHARGES - BEAVIS IS DISTINGUISHED

7.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 on the notice to keeper, in this case £100. The claim includes an accrual of interest of £xx.xx plus an additional £60 for which no calculation or explanation is given which appears to be an attempt at double recovery.

7.1 The Claimant may try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant maintains that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

7.2 The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

LACK OF LEGITIMATE INTEREST - BEAVIS IS DISTINGUISHED

8 The Claimant has never demonstrated to the Defendant that they are in fact authorised to pursue this matter through the courts.

8.1 The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices under defined parameters (including when caused by failure of their own data processing/excessive storage) and to form/offer contracts in their own name, and to pursue payment by means of litigation.

8.2 It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing the Defendant for a hugely disproportionate penalty when it has been proven that payment was actually made, and so again, the Beavis case is distinguished.

DISPROPORTIONATE AND DISINGENUOUS COSTS

9 The Defendant asserts that the costs that the Claimant is attempting to claim are disproportionate and disingenuous.

9.1 CPR 44.3 (2) states:
''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party”

9.2 Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact, it is argued that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself. The letters received from BW Legal, and ZZPS (debt collector) before them, can be demonstrated to be boilerplate letters with the particulars of this case inserted

9.3 The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

9.4 Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims, handled by an admin team or paralegals, the Defendant contends that no solicitor is likely to have supervised this cut & paste claim.

9.5 According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

9.6 The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the Claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

ABUSE OF PROCESS

10 Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

IMPACT OF THE PARKING (CODE OF PRACTICE) ACT 2019

11 Further to this, it is the Defendants belief that the impending implementation of the Parking (Code of Practice) Act 2019, has encouraged the private parking firms, such as the Claimant, to vigorously pursue court actions in an attempt to make their despicable business practises to pay, before they are regulated out of existence. This belief extends from the fact that they have chosen to pursue the Defendant for an alleged infraction from almost 4 years ago and there is evidence on-line that the Claimant, in association with their solicitors, have massively increased the number of cases they chose to pursue through the courts earlier this year.

SUMMARY

12 In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

12.1 There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

12.2 The Court is invited to make an Order of its own initiative, using the case management powers pursuant to CPR 3.4, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.

Dated this xxth day of August 2019
STATEMENT OF TRUTH
The Defendant believes that the facts stated in this Defence are true,
SIGNED