Parking nightmare. is it too late?

whitewabbit

OK back on trail ....what i have so far........Anything else i need to add or change or delete?

1) It is admitted that the defendant, XXXXXXXXXX residing at XXXXXXXXXX is the registered keeper of the vehicle.

2) The car park signage was inadequate

Although Premier is aware that the British Parking Association Code of Practice requires that terms on car park entrance signs must be clearly readable without a driver having to turn away from the road ahead, based on my knowledge of other Premier signs, I have good reason to believe that the signs in this particular car park were not sufficiently clear to give proper notice to the driver.

3) The car park signage failed notify the driver that Premier intended to exercise its rights under POFA
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including;
Paragraph 68: Requirement for Transparency
(a) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(b) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
Paragraph 69: Contract terms that may have different meanings
(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

I have good reason to believe that Premier’s signs do not include as a core term any condition advising the driver that Premier shall reserve the right under POFA to hold the vehicle’s keeper liable for the parking charge should this not be paid by the driver. In accordance with the rule of contra proferentem it is reasonable for drivers to conclude that Premier is one of the many private parking companies that choose not to use the provisions of POFA.

4) The car park signage did not properly warn motorists of the purpose of the operation of the ANPR cameras
Paragraph 21.1 of the British Parking Association Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for. Premier’s signs do not comply with these requirements
.
5) It is denied that any indemnity costs are owed and any debt is denied in its entirety.

6) It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

7) This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors in their claim. The Particulars are not clear and concise, so I have had to cover all eventualities in defending a 'cut & paste' claim. This has caused significant distress to me andmy family and has denied me a fair chance to defend this claim in an informed way.
8) As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.
9) This claim merely states: “parking charges and indemnity costs if applicable” which does not give any indication of on what basis the claim is brought. For example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'.

10) It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.

11) The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

12. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet ParkingEye would not have been able to recover any sum at all without 'agreement on the charge'. In the Beavis case, the £85 charge was held to be allowable to act as a disincentive in that case only, based upon very specific and unique facts in a 'complex' case involving the existence of a specific legitimate interest from the landowners regarding turnover of parking spaces and very clear, brief and prominent signs. ). Further, it was held at the Court of Appeal that a parking charge sum of £135 would fail the penalty rule. The authority for this is 'Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 (17 October 2012)'.

13) It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court. The lack of diligence in this claim demonstrates admirably that at best a ‘copy and paste' is the closest a human, legally trained or not, came to the information transmitted from claimant to the Money Claims Online system. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.

15). The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

16. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

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

How obvious is it that i am not from a legal background and really feel that i am out of depth....will i get ripped to shreds and spat out!!!

Coupon-mad

How obvious is it that i am not from a legal background and really feel that i am out of depth....will i get ripped to shreds and spat out!!!

You are no different to anyone else here doing the same task. None of the posters you see have been here before, it's a steep learning curve but we do get people to where they need to be.

We are finding that these rubbish claims, when well defended, are often not actually ending up at a hearing but are being stayed due to Gladstones inaction (so far). Maybe because we help people with bespoke defences so they are not just the same old template stuff and we try to cover all bases. So maybe G's move on to hearing with easier ones. Certainly we've seen no hearings from G's cases and therefore, none lost that this forum has assisted with.

You may as well crack on and keep looking to add more if you find good wording.

Only the other day, this week, I edited the NEWBIES sticky thread and updated the linked defences shown under 'Small Claim?' so some of those there now are well worth a read. There's a lovely long one written by someone on pepipoo, Janeo, which has lots of defence points and is well written. Linked in the NEWBIES thread as a very recent example. And several from here from last month, with input from experienced posters like IamEmanresu and hoohoo.

We will try to add comments on your defence drafts, as we get time for you. But do read the ones linked this week in the refreshed 'Small Claim?' section in the NEWBIES thread as I picked out some very good ones, I hope.

Yours is not bad at all - very good in fact - I have skim-read it and I spotted one issue that I would suggest you alter, because yours is a bit like the Beavis case (eeek!) in that it's an overstay at a retail park...hence, remove the bits I've crossed out here:

12. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet ParkingEye would not have been able to recover any sum at all without 'agreement on the charge'[STRIKE]. In the Beavis case, the £85 charge was held to be allowable to act as a disincentive in that case only, based upon very specific and unique facts in a 'complex' case involving the existence of a specific legitimate interest from the landowners regarding turnover of parking spaces and[/STRIKE] as he was bound to have seen the (unusually) very clear, brief and prominent signs. Further, it was held at the Court of Appeal that a parking charge sum of £135 would fail the penalty rule. The authority for this is 'Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 (17 October 2012)'.

whitewabbit

ok thanks for that. done as you suggested but struggling to find any other legal points that havnt been covered..... on anothr point should i send one of these to Gladstones or is it too late for this one....not sure that i ever received LBC........


Dear Sir

Ref : ****

I have received your Letter Before Claim dated xxxxxxxxxxx 2016.

I deny any debt to PPL Ltd


You also cannot presume that I possess all the documents referred to in your letter.
Please send me copies of all the documents sent by the client including the windscreen notice if one was attached to the vehicle.

When these are supplied, please also confirm whether the intended action is founded on a contractual charge, a breach of a contract or trespass
Please confirm that your client's contract with the land-holder includes specific authority to take legal action and that this will be produced for the court.
I also require an explanation for the additional £50 charge including confirmation that it has already been invoiced and paid.

When I receive the documents and your explanations I will be in a position to make a more detailed response
It would be unreasonable to proceed with litigation before you have clarified your client's cause of action.

I look forward to your response

Yours Faithfully

thought i may be able to use their non-reply or unhelpful reply as more ammunition ???

The_Deep

Have you complained to the SRA?

http://www.sra.org.uk/consumers/problems/report-solicitor.page

This firm is currently being investigated by them as they have been demanding monies to which their client has no entitlement, (fraud in my opinion) They can only claim the original sum, a filing fee of about £35, and a few pounds in interest, and, if they employ a solicitor £50. The maximum amount should not exceed £200, but only if they win in court.

Read this

https://forums.moneysavingexpert.com/discussion/5509488

Since sending that letter, I have had 3 replies from the SRA who appear to be taking the matter very seriously, after all, such unsilicitory behaviour can only bring the profession into disrepute. Every complaint increases the pressure and yours could be the final straw.

whitewabbit

hi TD
no i have not complained to SRA but your letter is brilliant. i can adapt a little and send one off. Why not?

Coupon-mad

whitewabbit wrote: »

ok thanks for that. done as you suggested but struggling to find any other legal points that havnt been covered..... on anothr point should i send one of these to Gladstones or is it too late for this one....not sure that i ever received LBC........


Dear Sir

Ref : ****

I have received your Letter Before Claim dated xxxxxxxxxxx 2016.

I deny any debt to PPL Ltd


You also cannot presume that I possess all the documents referred to in your letter.
Please send me copies of all the documents sent by the client including the windscreen notice if one was attached to the vehicle.

When these are supplied, please also confirm whether the intended action is founded on a contractual charge, a breach of a contract or trespass
Please confirm that your client's contract with the land-holder includes specific authority to take legal action and that this will be produced for the court.
I also require an explanation for the additional £50 charge including confirmation that it has already been invoiced and paid.

When I receive the documents and your explanations I will be in a position to make a more detailed response
It would be unreasonable to proceed with litigation before you have clarified your client's cause of action.

I look forward to your response

Yours Faithfully

thought i may be able to use their non-reply or unhelpful reply as more ammunition ???

It's too late for that exact one but you can write the version you will have seen on other threads, called a Part 18 request for further information.

whitewabbit

with a few additions and the 28 days ticking away could some one please cast an eye on this before i post it......

1) It is admitted that the defendant, XXXXXXXXXX residing at XXXXXXXXXX is the registered keeper of the vehicle.

2) The car park signage was inadequate
Although Premier is aware that the British Parking Association Code of Practice requires that terms on car park entrance signs must be clearly readable without a driver having to turn away from the road ahead, based on my knowledge of other Premier signs, I have good reason to believe that the signs in this particular car park were not sufficiently clear to give proper notice to the driver.

3) The car park signage failed notify the driver that Premier intended to exercise its rights under POFA
In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including;
Paragraph 68: Requirement for Transparency
(a) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(b) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
Paragraph 69: Contract terms that may have different meanings
(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

I have good reason to believe that Premier’s signs do not include as a core term any condition advising the driver that Premier shall reserve the right under POFA to hold the vehicle’s keeper liable for the parking charge should this not be paid by the driver. In accordance with the rule of contra proferentem it is reasonable for drivers to conclude that Premier is one of the many private parking companies that choose not to use the provisions of POFA.

4) The car park signage did not properly warn motorists of the purpose of the operation of the ANPR cameras
Paragraph 21.1 of the British Parking Association Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for. Premier’s signs do not comply with these requirements
.
5) It is denied that any indemnity costs are owed and any debt is denied in its entirety.

6) It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

7) This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors in their claim. The Particulars are not clear and concise, so I have had to cover all eventualities in defending a 'cut & paste' claim. This has caused significant distress to me and my family and has denied me a fair chance to defend this claim in an informed way.
The claimant has not provided enough details in the particulars of claim to file a full defense.
In particular, the full details of the contract which it is alleged was broken have not been provided.

a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charge was incurred.
c) 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.

d) The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence
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.
The Particulars of Claim are incompetent in disclosing no cause of action.

8) This claim merely states: “parking charges and indemnity costs if applicable” which does not give any indication of on what basis the claim is brought. For example whether this charge is founded upon an allegation of trespass or 'breach of contract' or contractual 'unpaid fees'. nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'.

9) As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant's case.

10) It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.

11) The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

12. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet ParkingEye would not have been able to recover any sum at all without 'agreement on the charge and as he was bound to have seen the (unusually) very clear, brief and prominent signs. Further, it was held at the Court of Appeal that a parking charge sum of £135 would fail the penalty rule. The authority for this is 'Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 (17 October 2012)'.

13) It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court. The lack of diligence in this claim demonstrates admirably that at best a ‘copy and paste' is the closest a human, legally trained or not, came to the information transmitted from claimant to the Money Claims Online system. There are no real costs and POFA prevents claims exceeding the sum on the original parking notice.

14). The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

15. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

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



Thanks again for any comments and all the hand holding going on in general. its is so nice to know that i am not alone.........even if this goes to court ( and i know im on really thin ice ) i think i will grow from the experience, Thank you all.

Coupon-mad

The claimant has not provided enough details in the particulars of claim to file a full defense.

Should be 'defence'.

Apart from that you do seem to have covered the bases, albeit that an overstay at a retail park can be harder to argue, seeing as the Beavis case was about an overstay at a retail park.

whitewabbit

ok thanks and fingers crossed. posting today.