Letter Before Claim - Own Bay PCN

steady.alone

Thank you Coupon-mad for your help. I'll make the suggested edits.
The insurance of the car was only under my name at the time so I don't think I can attach that as an exhibit?

Coupon-mad

I agree, so don't mention that but if asked you can say truthfully that others could drive the car under their own fully comp insurance and there is no obligation on a keeper to name or even guess as to the driver (at this point, cite Henry Greenslade, the parking expert Barrister, if asked.

You can also say that the POFA does not create any obligation on a keeper to say who was driving because - whilst the BPA lobbied for that power - this was specifically and clearly refused by MPs during the reading of the POFA Bill in the House of Commons in 2012).

steady.alone

Thank you, I will keep the above on my notes for the day

steady.alone

Final draft is ready to fly through email to both parties.

1. I am an unrepresented consumer who has never attended the county court
before.

2. I refer to the Claimant’s witness statement as they have submitted a set of new legal arguments and not a witness statement that cannot be introduced at this late stage without paying a fee. I, therefore, request the court to strike out the Claimant’s witness statement.

3. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my witness statement in support of my defence as already filed.

4. On the 24th May 2016 I received a parking charge notice no. 911850 (Exhibit A) asking for payment of £100 (£60 if paid in 14 days) for not displaying a valid permit.

5. I refer to my first appeal (Exhibit that was lodged on 12th June 2016 to request Claimant to cancel the PCN that I have unfettered rights to park, as these rights were already granted within the lease agreement as a resident of the building. Giving signage the prominence, the Claimant then rejected my appeal. At the time I had not supplied them with evidence to support the right to park; this is because they never requested it. Nonetheless the burden of this, remained with the Claimant to check the status of those residents in terms of unfettered rights and easements, before issuing a ticket.


6. Under any modern lease, residents would certainly have rights of way, at the very least, and their agreements cannot be varied unilaterally by anyone, let alone a third party not in possession of the land nor party to the rental agreement.

7. In Jopson v Homeguard B9GF0A9E [2016], Pace v Mr N [2016] C6GF14F0 [2016] and Link Parking v Ms P C7GF50J7 [2016] (Exhibit C, D & E respectively) it was found that the parking company could not override the tenant's right to park by requiring a permit to park. If this gives the resident the unfettered right to park then this cannot be altered later, for instance by requiring a permit to park.

8. I submit the advert flyer of the property (Exhibit F), which confirms that tenancy, came with secure underground parking. I also submit tenancy agreement’s page of Keys and Content List which states unallocated parking space and a private fob to access the parking gates (Exhibit G). This has been further confirmed by the Estate Agent in their email to the Defendant that the “space is unallocated so you can park anywhere in the car park that doesn’t have a number on the floor.” (Exhibit H)

9. It is also stated in the Tenancy Agreement Point 8.1 that the Landlord shall permit the Tenant to have quiet enjoyment of Property without interruption by himself or his Agent. (Exhibit I)

10. As per the Claimant’s Witness Statement, they state that they are authorised to manage the Car Park, by their Principal Client ‘Mainstay Residential.’ The Principal Client instructed the Claimant to cancel the charge they enforced to the Registered Keeper, on 25th October 2016 (Exhibit J), which they refused to do.

11. Mainstay Residential, Principal Client, has confirmed that they received a number of complaints against the Claimant like targeting residents and leaseholders in the car park. Yet the Claimant remained non-compliant with the strict rules of car park maintenance for residents. (Exhibit K) (Exhibit K Attachment)

12. Mainstay Residential, Principal Client, also confirmed that Claimant’s contract to operate the site was under review at the material date and later terminated in January 2017. The Defendant would like to understand why this was the case when according to the Claimant they are operating under Schedule 4 of the Protection of Freedoms Act 2012.

13. It is admitted that I was the authorised registered keeper of the vehicle in question at the time of the alleged incident. But I was not the driver of the vehicle so have no knowledge of the events, or signage terms on the date in question and the Claimant did not identify the driver.

14. I have no liability, as I am the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 (Exhibit L), Schedule 4 in order to hold me responsible for the driver’s alleged breach. A registered keeper of a vehicle, under no ‘reasonable presumption’ can be held as the driver (Exhibit M) Keeper’s Liability, POPLA Annual Report 2015.

15. The warning signs on the pillars are so high up and are difficult to read as shown in photographs (Exhibit N). The car headlights are in the same line as the hoodline making it impossible to light up a space that is way above the line of sight (Exhibit O)

16. The signage was inadequate to form a contract with the motorist because it is barely legible, making it difficult to read. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which Claimant is a member), clearly states “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.”

Moreover, there is no prominent signage at the entrance of the parking area, which we had requested for and was not provided.

Signage was not lit, being located underground the car park is mostly dark at all times (Exhibit P & K attachment). In addition, the amount of charge is non-prominent in the wording on the signage.

17. The driver did not enter into any agreement. No consideration flowed between the two parties and no contract was established.

18. I deny that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions been properly displayed.

19. PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOL Steps before issuing a claim at court
Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate. The steps will usually include—
(a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;
(b) the defendant responding within a reasonable time - 14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and the parties disclosing key documents relevant to the issues in dispute.

20. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract, which it is alleged was broken, have not been provided.
1. The Claimant has disclosed no cause of action to give rise to any debt.
2. The Claimant has stated that a parking charge was incurred.
3. The Claimant has given no indication of the nature of the alleged charge in the
Particulars of Claim.The Claimant has therefore disclosed no cause of action.

21. The Particulars of Claim contains no details and fails to establish a cause of action which would enable me to prepare a specific defence.
It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information.

22. The Particulars of Claim are incompetent in disclosing no cause of action.

23. On 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’

24. On 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

25. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).

26. The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service have identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

27. I also dispute that the Claimant has incurred £50 solicitors costs to pursue an alleged £100 debt, the costs of which are in any case not recoverable

28. The claimant described the charge of £50 as ‘legal fees’ not ‘contractual costs’ CPR 31.14 does not permit these to be recoverable in the Small Claims Court. Also Claimant has mentioned that full details of charges are provided in the Parking Charge Notice, which is not the case. In the Letter before claim issued by Gladstones on 16th August 2016 (Exhibit Q) the Claimant referred to the amount mentioned in Notice to Keeper, which was issued on 1 July 2016. However the amounts on these two communications don’t match and there are no details of costs breakdown in Notice to Keeper.

29. The amount claimed is evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable when compared to the facts in the wholly different case of Parking Eye Ltd v Beavis, given the fact that this charge is an arbitrary and unilaterally-imposed penalty against residents, offending against the principle of non-derogation from grant. Jopson v Homeguard B9GF0A9E [2016], the case confirmed the principle of non-derogration from grant.


30 The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £150.

31. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

32. The Claimant is not 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 rights to bring this case.

33. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

34. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. 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 right to bring action regarding this claim.

35. I also refer 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. It follows therefore that if a debt exists, it is owed to the landowner, not the Claimant.

36. I would like to point out there is no limit on the period of stay in the car park, unlike Parking Eye v Beavis. There is therefore no commercial justification for the charge and it remains a penalty.

Statement of Truth

steady.alone

Hi friends
I was just about to send emails to both court and claimant and I think I have put the exhibit and attachment in wrong format. I didn't think of it earlier but I think I have now messed up completely.
Can anyone please provide quick and easy way of doing exhibits & attachments as I need to send it before Close of play today. Many many thanks in advance!

Coupon-mad

There is no hard & fast rule, just make it readable for the Judge:

- numbered pages
- numbered exhibits
- a schedule of costs (see NEWBIES thread post #3 for an example)
- an index page at the front

put it all in a file, e.g. a cheap ring-binder from a stationers, with the claim number and 'Defence Witness Statement and evidence' on the front.