UKPC - County Court Claim Defence and Process

Coupon-mad

IndigoMondayToyota wrote: »

Thx CM. I've sent off my complaint to HA and included the part about recently forged photos.

Bullet Point defence (which needs a lot more work and points having re-read it...)

1. It is admitted that Defendant was the registered keeper of the vehicle in question.

2. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charge

3. The signage displayed clearly only makes an offer of parking to permit holders, and therefore only permit holders can be bound by the contractual terms conveyed.

4. It is denied that the Claimant entered into a contract with the Defendant. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner XXXX XXXX Housing Association.

5. If there was a contract, it is denied that the penalty charge is incorporated into the contract. The leaseholders' lease is missing any reference to parking permit requirements.

6. Alternatively, even if there was a contract, the provision requiring payment of £2000 (correct amount to be edited before submission) is an unenforceable penalty clause.

7. Further and alternatively, the provision requiring payment of £2000 is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999.

8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

Any additions or omissions to the above?

Thanks.

I will bump this as it needs work, and a statement of truth at the end. The UTCCRs is not worth quoting and if the PCN was after October 2015 that law wasn't in existence (was incorporated into the Consumer Rights Act, as yet untested). I think your PCNs are older than 2015, going by your first post, but even so, the UTCCRs were dumped out as 'not breached' by the learned Judges at the Supreme Court in the Beavis case so anyone fighting private parking charges won't get any traction out of the UTCCRs now, in County Court.

You need to be proactive and assert why this case differs from the Beavis case and why the fact that ParkingEye £85 charge was deemed 'not a penalty' is not a silver bullet shooting down all other parking case defences. You need a defence point mentioning the differences in the Beavis case (i.e. there was no clear signage, no offer or licence to park, no consideration flowed, no requirement for a high turnover of parking bays here, no commercial justification for a third party to recover a sum so disproportionate in the circumstances).

You need a defence point rejecting any 'legal fee' per PCN they have randomly added, which is a penalty in itself, not quantified on any signs. And you should 'put the claimant to strict proof' that the additional fees and costs added to the 'face value' of the £100 charges was ever in fact incurred per PCN, at all.

IndigoMondayToyota

Thanks CM.

I've edited it below to remove/add the following:

1) Removed point about UTCCRs.
2) Added a defence point on why it differs from the Beavis case. Might need to be revised as i'm not sure if it's correct/applies in my situation.
3) Added points about legal fee per PCN, and putting to 'strict proof' additional fees/costs to the £100.

One quick question:
Do i send off a Part 18 request so i can add the following defence point?
#. The claimant has yet to respond to part 18 Request written and sent by the defendant and delivered to SCS Law on the XX/XX/2016.
a) A request to confirm basis of claim, and if the claim is for alleged breach of contract or a contractual fee.
b) A request to provide a full unredacted copy of the contract with the landowner which demonstrates the claimants authority from the landowner to issue parking charges and litigate in their own name
c) A request to provide copies of the signs at the time of the purported contraventions, along with information about each sign at the date of the events
d) A request for copies of the 11 original windscreen tickets (notices to driver)
e) A request for copies of the 11 Notices to Keeper
f) A request to provide original and unedited photographic evidence with timestamps of the purported contraventions
f) A request to provide a breakdown and explanation of how the charge for each purported contravention has risen to £160 (Need to include this in my original Part 18 post above)
g) A request to issue a Subject Access Request for all information held about the Registered Keeper.
h)(Need something on PDA and Keeper Liability, and how to challenge them on this)

1. It is admitted that Defendant was the registered keeper of the vehicle in question.

2. The Defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charge

3. The signage displayed clearly only makes an offer of parking to permit holders, and therefore only permit holders can be bound by the contractual terms conveyed.

4. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. UKPC cannot overrule the elements of the lease or introduce them subsequently. Strict proof is required that there is a chain of contracts leading from the landowner to UKPC.

5. The Claimant rejects any 'legal fee' per PCN which UKPC have randomly added, which is a penalty in itself. (Not feeling the wording on this one - might need to be changed to be more 'legal')

6. Accordingly, the Claimant is put to strict proof the additional fees and costs added to the value shown on signages for the £100 charges was ever in fact incurred per PCN, at all. (Probably needs work on wording!)

7. UK Parking Control are not the lawful occupier of the land.
(i) UKPC is not the lawful occupier of the land
(ii) absent contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus stand to bring this case.

8. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons: (a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking on the site in question; (b) the amount claimed is a charge and evidently is far disproportionate to any loss suffered by the Claimant and is therefore unconscionable; and (c) the clause is specifically expressed to be a parking charge on the Claimant's signs.

9. - The signage on the site in question is unclear and was not prominent on site/around those bays at the time the PCN's were issued so no contract has been formed with driver(s) to pay £160, or any additional fee charged if unpaid in 14 days (not sure on exact amount due to different signages showing £90 on one, and £100 on the other)

10. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

11. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper is unaware of 11 PCN's and was not the driver, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £90 charge and prescribed Notice to Keeper letters in time/with mandatory wording. (again, correct amount to be confirmed as per #9)

12. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was recently investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis.

13. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

14. If the driver/s on each occasion were considered to be trespassers if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

15. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

Thanks once again!

Coupon-mad

A statement of truth needs adding at the end.

Remove point #8 because you can't argue no GPEOL now; steer it right away from anything that makes it easy for the claimant to point to the Beavis case.

You could replace #8 with a simple statement that the signs on site show two different sums - £90 in one place, £100 in another - so it would be impossible to assume which sign (if any) the driver(s) of the vehicle on each occasion saw, or did not see. Each sign is pale, unlit, unremarkable and placed so high that the £90/£100 charge among the wordy small print is incapable of being read, cannot form a contract and is ambiguous due to the sum differing. The docrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.

g) A request to issue a Subject Access Request for all information held about the Registered Keeper.

I don't get this. If you want to issue a SAR you just issue a SAR, not ask for permission to issue one, and it goes to the company itself, like this:

https://bmpa.zendesk.com/hc/en-us/articles/206890469-Subject-Access-Requests

In your case I would do this - issue a SAR, now - because of the number of PCNs involved.

IndigoMondayToyota

I thought the SAR part didn't look right! :rotfl: I'll send the SAR off to UKPC enclosing a £10 Bankers Cheque later in the morning 15/06/2016 (I don't know anyone who still uses Chequebooks!)

Is it too late to send a Part 18 Request (the one I drafted on 11/06/2016 @ 06:09PM - Points 1-6 seeing as 7 and 8 aren't needed) to SCS Law? The Date of Service was 03/06/2016.

I'll also follow up with my Housing Association tomorrow morning to see if they can strike the Court Claim, or contact UKPC to drop it. Otherwise I'll ask to get their available days in the coming months where there's no holiday so they can be included as Witness if this goes to court.

Also, thanks for the feedback, seems like you're the only one helping out so I appreciate your time and effort on everything.

Here it is, including/omitting the points you highlighted. Please confirm on the queries in bold.

---

1. It is admitted that Defendant was the registered keeper of the vehicle in question.

2. The Defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charge.

3. The signage displayed clearly only makes an offer of parking to permit holders, and therefore only permit holders can be bound by the contractual terms conveyed.

4. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. UKPC cannot overrule the elements of the lease or introduce them subsequently. Strict proof is required that there is a chain of contracts leading from the landowner to UKPC.

5. The Claimant rejects any 'legal fee' per PCN which UKPC have randomly added, which is a penalty in itself. Not feeling the wording on this one - might need to be changed to be more 'legal')

6. Accordingly, the Claimant is put to strict proof the additional fees and costs added to the value shown on signages for the £90/£100 charges was ever in fact incurred per PCN, at all.

7. UK Parking Control are not the lawful occupier of the land.
(i) UKPC is not the lawful occupier of the land
(ii) absent contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus stand to bring this case.

8. The signage on the site shows two different sums - £90 in one place, £100 in another - so it would be impossible to assume which sign (if any) the driver(s) of the vehicle on each occasion saw, or did not see. Each sign is pale, unlit, unremarkable and placed so high that the £90/£100 charge among the wordy small print is incapable of being read, cannot form a contract and is ambiguous due to the sum differing. The docrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.

9. - The signage on the site in question is unclear and was not prominent on site/around those bays at the time the PCN's were issued so no contract has been formed with driver(s) to pay £90/£100, or any additional fee charged if unpaid in 14 days.

10. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

11. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper is unaware of 11 PCN's and was not the driver, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £90/£100 charge and prescribed Notice to Keeper letters in time/with mandatory wording.

12. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was recently investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis.

13. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

14. If the driver(s) on each occasion were considered to be trespassers if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

15. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

Statement of Truth:
I confirm that the contents of this statement are true to the best of my knowledge and belief.

---

Thanks again CM.

Umkomaas

2. The Defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charge.

As this is the first mention of the Act, put in the full title 'The Protection of Freedoms Act 2012'.

ii) absent contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus stand to bring this case.

locus standi

12. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was recently investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis.

Were any of the tickets issued to your vehicle during the same time period as that of the photo time-stamp falsifications? If so, I'd make a mention of that in this paragraph.

You might also ask that UKPC is put to strict proof that none of the photos taken of your vehicle were not similarly altered (but take other views on this - CM might like to comment?).

HTH

Coupon-mad

Were any of the tickets issued to your vehicle during the same time period as that of the photo time-stamp falsifications? If so, I'd make a mention of that in this paragraph.

You might also ask that UKPC is put to strict proof that none of the photos taken of your vehicle were not similarly altered (but take other views on this - CM might like to comment?).

Sounds like a good idea, maximum embarrassment for UKPC, why not?

IndigoMondayToyota

You guys bring up a very good point. I'll confirm the timeframe when they were issued once I get home around 9. I am PRAYING the tickets were issued around about the same time as that would be a very good point to bring up!

I'll make the changes as you guys have suggested including the bit about proving the pics weren't altered at the same time (that's only if it was!)

Please note I've also sent off the SAR to UKPC earlier today and got certificate of posting.

Thanks!

IndigoMondayToyota

So the notices were as early as July 2013 through to August 2014.

Still worth mentioning?

Umkomaas

IndigoMondayToyota wrote: »

So the notices were as early as July 2013 through to August 2014.

Still worth mentioning?

Yes, as it still has to be a concern to you. Let them deal with it, just throw it in.

IndigoMondayToyota

OK. Thanks Umkomaas.

I'll add another point between points 12 & 13 to say the below:

The Claimant is put to strict proof that the none of the photos taken of my vehicle at the time the PCN's were issued were not similarly altered.

I feel a comma needs to be in there..otherwise does it look OK?