Premier Park Limited - Now a Court Claim

thorfan

First... thanks to Savvy for changing my thread title for me! :j

Re-reading my own thread, i realised I had missed something on my Landowner bit... the fact that a Premier Park Limited employee (suspected) had signed the landowner witness statement. So I have re-worded section 8 as below:
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. A witness statement was provided to the Independant Appeals Process POPLA, that purported to demonstrate a contract being in place, but research showed that the signatory is likely an employee of Premier Park Limited, not of the landowner.


Now, the question is, if the muppets do decide to go to court on this, can i (or how do I) insist that the signatory turns up? I was thinking of adding something like the claimant is put to strict proof that the signatory is not, and never has been, an employee of the claimant but is that too easy to wriggle out of?

thorfan

Ok, so I read my first draft and it annoyed me... it was too wordy and looked too like a cut and paste mashup. I have re-written it, to make it shorter and snappier. I have taken all quotes out so it doesn't look like I am trying to tell a story, as I think that's the Witness Statement's job?

Any comments and criticism, gladly received!

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

DE MINIMIS
2. The vehicle with Vehicle Registration Number (VRN) 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 PDT failed to record the full VRN of the vehicle.
3. Given the fact that the ANPR data did not match with a payment made, an automated PCN was issued. It was the obligation 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.
4. The ticket was valid in as much as the correct tariff to cover the period of parking was paid. 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. It can be demonstrated that the vehicle XXXX XXX had been in the very same car park on an earlier date, when the VRN was entered into the same PDT and accepted.
5. 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. 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.
6. 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.

SPARSE PARTICULARS AND DENIAL OF CONTRACT
7. 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.
8. 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. 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
9 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.
10. 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.
11. 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.

LACK OF LEGITIMATE INTEREST - BEAVIS IS DISTINGUISHED
12. The Claimant has never demonstrated to the Defendant that they are in fact authorised to pursue this matter through the courts. During the Independent Appeals Process (POPLA) the Claimant provided POPLA, but not the Defendant, a Witness Statement that research has indicated may have been signed by one of their own employees, not the Landowner.
13. The Claimant is put to strict proof that it has sufficient and contemporaneous 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, to form/offer contracts in their own name, and to pursue payment by means of litigation.
14. The Claimant may try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing the Defendant for a penalty when it can be proven that payment was actually made, and so the Beavis case is distinguished.

CONSUMER PROTECTION
15. The Claimant will try 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. According to the Act, 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
16. 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. This 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.
17. The Claimant may again, try to rely upon the Beavis case. However, the Defendant maintains that decision confirms the assertion that this charge is unconscionable, given the facts. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

DISPROPORTIONATE AND DISINGENUOUS COSTS
18. The Defendant asserts that the costs that the Claimant is attempting to claim are disproportionate and disingenuous. .The 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.
19. 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. 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. It is submitted that the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

ABUSE OF PROCESS
20. Judges have disallowed all added parking firm 'costs' in County courts across the Country, highlighting the Abuse of Process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. 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

SUMMARY
21. 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.

I also got rid of my statement about the upcoming Parking Act as that didn't feel like a Defence thing.
It needs to be top and tailed, but I'll do that before sending it.

thorfan

Todays mail...

BW Legal - Notice of Pending County Court Judgement... blah blah... threat... blah...

Let's see what a judge says shall we?

beamerguy

thorfan wrote: »

Todays mail...

BW Legal - Notice of Pending County Court Judgement... blah blah... threat... blah...

Let's see what a judge says shall we?

They do that to scare you

Notice of Pending County Court Judgement
No doubt they mean the case being kicked out for Abuse of Process

You need to expand on ABUSE OF PROCESS by using coupon-mad's text in post # 14 here ....
https://forums.moneysavingexpert.com/discussion/6014081

thorfan

Defence going in this evening, unless anyone has further comments?

Redx

I would add extra detail to the abuse of process by mentioning judges Grand and Taylor and the claim numbers etc

The full set of paragraphs can be placed into the WS (or as you correctly say, telling your story)

thorfan

Redx wrote: »

I would add extra detail to the abuse of process by mentioning judges Grand and Taylor and the claim numbers etc

The full set of paragraphs can be placed into the WS (or as you correctly say, telling your story)

I can do that.

thorfan

Hi all... just to update, I have a court date in February at Portsmouth County Court.

I have been playing catch-up as usual, but I have a WS, a Supp WS (based on the Abuse of Process thread), a cost schedule and lots of evidence. It goes to the Court Monday as cut off is Tuesday. BWL were sent a copy this afternoon (1st Class Proof of Posting), but funnily enough they haven't shown me theirs yet!

I am going for Abuse of Process with a side of De Minimis.

beamerguy

Good for you

Certainly refer the court to Judge Grand

BWLegal must be pretty stupid, going to an area that spanks them, not only in the first case but on appeal as well.

KeithP

thorfan wrote: »

I am going for Abuse of Process with a side of De Minimis.

Is that going to be enough?

Perhaps you should also attack the poor signage - you did mention it in your Defence.