Parking Charge Notice - Calder Park, Wakefield - Help

shaftonred

Coupon-mad wrote: »

Absolutely categorically DO NOT go looking for a 'service' to do this for you.

If you did, we'd probably point you to the review site called 'Trust Pilot'. STAY HERE.

So your expert friend can read the sum of the parking charge and all terms on that sign, and concludes that the driver agreed to pay that sum (what sum?!), and could read the terms?

Better eyesight than me, then!!

I am due to see the wife of a friend tonight to understand where she feels I will lose the case based on the evidence supplied to her so will hopefully have more to respond with.. however i have spent a few hours this morning looking at other posts and statement of defence and hope that this is adequate.

shaftonred

I've ammended several of these and think I have covered all points without making it a witness statement, keeping it at a legal angle.. if anyone can cast an eye over this and point out any short comings it would be great and help me to enjoy my weekend without this hanging over me...




Defence

I am XXXXX, defendant in this matter.

1. It is likely to be a matter of common ground that this claim arises as the result of an alleged infraction brought about by the stopping of a Colourful German family car, registration number 01/01/16 at Calder Park, Wakefield that in turn resulted in the issue of a parking charge notice by the
Claimant.

2. 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.

3. I deny any liability in respect of the claim.

4. In his Particulars of Claim the Claimant fails to disclose the head or heads of action in which these proceedings are based and in any event no cause is disclosed that has a realistic prospect of success. Furthermore the lack of detail prevents my being able to respond in more detail.

5. The Claimant is a well-funded company with a dedicated legal staff and is a serial litigator. I submit that his issuing Particulars of Claim lacking in usable detail or that do not disclose a clear cause of action is not only remiss but smacks of a “Cut and Paste” approach to the issuing of proceedings. I further submit that this demonstrates a disregard for the dignity of the court and little concern for the Claimant’s duties in supporting the court to achieve the overriding objectives.



6. Additionally such scant Particulars leave Defendants to respond to what are at best vague details.


7. The Claimant solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.I believe the term for such conduct is robo-claims; which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.


8. The Defendant was not afforded any information about complaints procedures to the landowner. This omission prevented the Defendant from being able to get this charge cancelled by the landowner. If the Defendant could have appealed to POPLA or had been informed that the landowner could deal with such complaints and cancel charges, they would have done so. 9. The Claimant’s representatives, BW Legal, have artificially inflated the value of the Claim from £100 to £244.78. I submit the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules. Further, BW Legal appear to be in contravention of the Solicitors Regulation Authority Code of Conduct.






9. Vehicle Control Service’s signs give conflicting messages. Vehicle Control Service’s signs use of the Highway Code symbol for “No Stopping” which conflicts with the double yellow lines marked on the road, these being recognised in the Highway Code as meaning “No Waiting” as opposed to "No Stopping".


10. Whilst it is admitted that the Defendant was the registered keeper of the above vehicle at the time of the alleged event it is averred that the Defendant was not the driver at the relevant time and the Claimant is put to strict proof in this respect.




11. It is denied that the Claimant is the landowner of the property in question or that they have any other right or proprietary interest in the land or any demonstrable intention to occupy it sufficient to support this claim.

12. The Claimant is therefore put to strict proof that they were at the time of the alleged event in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner.

13. In the absence of strict proof I submit that the Claimant has no case and invite the court to strike the matter out.

14. If it is so pleaded before seeking to rely on the keeper liability provisions of Schedule 4 Protection of Freedoms Act (the “Act”) the Claimant must demonstrate that there was a “relevant obligation” either by way of a breach of contract, trespass or other tort. The Claimant is put to strict proof that such a “relevant obligation” existed.

15. In the absence of strict proof as to the existence or otherwise of a “relevant obligation” the court is invited to strike the matter out.

16. On the other hand it is believed that the Claimant may seek to rely on a rather unique interpretation of the judgment in Elliott –v- Loake and endeavour to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists and thereby prove his allegations.

17. I submit that this interpretation actually represents a very considerable reworking of the case and does not fairly convey the findings.

18. The reality is that no such precedent was created and that Mr Loake was found guilty (it was a criminal matter) on a surfeit of evidence including forensic evidence of being the driver at the time of a road traffic accident which he had previously lied to the police about. Crucially this evidence proved the case to a criminal standard not simply on a balance of probabilities as applies in the instant matter.

19. I will seek to argue a more detailed rebuttal should the Claimant plead the case cited but in any event submit that the case cited be disregarded.

20. If the court is minded to accept that the Claimant has standing then I submit that the signs on site at the time of the alleged event were insufficient in terms of their numbers, distribution and wording to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.

21. In due course I will ask the court to consider the frequently overlooked test established by Roskill LJ in the matter of Vine –v- London Borough of Waltham Forest insofar as it relates to the display of signage in conveying an obligation.

22. Although the above case turned on the application of the principle of volenti non fit injuria as opposed to the creation of a contract to park I will submit that the test created is nevertheless relevant and is entirely applicable to the instant matter.

23. I further submit that such is the complexity and density of the text on the Claimant’s signs that the most onerous term – the £100 parking charge notice – is buried amongst a mass of small print and does not even begin to comply with Denning MR’s “Red Hand Rule”.


24. Applying the rule of contra proferentem, a driver would be entitled to conclude that stopping (but not waiting) on the double yellow lines was permissible. Even though VCS’s signs may try to specify a different meaning of double yellow lines (i.e. “strictly no stopping”) the text is too small to be read by any driver passing at 30 mph.

25. In the absence of any signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

26. It is further anticipated that the Claimant may seek to rely on the recent Supreme Court ruling in the case of ParkingEye –v- Beavis. In due course I will seek to demonstrate that the instant matter may be distinguished from that case.

27. The Claimant is put to strict proof of all his assertions.


28. The Defendant requests 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 20th September 2016 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''.

I believe the facts stated in this Defence are true.

Coupon-mad

stopping to take a call for no less than 5 mins whilst on a business park.

Just repeating this so people who view the forum in green (like me, where the first post is not repeated at the top of every page), can see what this is about.

You have two number 9 points, one is swallowed up within #8.

Your current #9 could be expanded to explain why the lines are important:

9. The Claimant's signs give conflicting messages and the doctrine of contra proferentem applies; the interpretation that most favours a consumer must be applied (Consumer Rights Act 2015 confirms this and covers the requirement for transparency and fairness, a doctrine of open dealing with consumers). Vehicle Control Service's signs use of the Highway Code symbol for 'No Stopping' which conflicts with the double yellow lines marked on the road, these being recognised in the Highway Code as meaning 'No Waiting' as opposed to 'No Stopping'. This is not semantics, it is vital to the case because on double yellow lines on roadways, the TMA 2004 allows for stopping for various activity and a few minutes is never a contravention. To communicate a no-stopping zone, the lines must be double red.

I didn't see anywhere that the driver could not possibly have read the sum of the parking charge, let alone agreed to it.

shaftonred

Thanks Coupon-mad... was hoping that you was one of the ones who would respond having seen lots of your posts.


I will get that amended to break it out, read it so many times I cannot believe I missed it.


Other than this is there anything that you feel i need to add, amend or remove?


There are lots of signs which i only really noticed after i received the initial PCN and re-visited the park, however they are located in the worst locations possible... probably on purpose for this exact reason.

Coupon-mad

I think your defence looked good and has every chance, depending upon the Judge.

And you have nothing to lose by fighting it anyway. It's not as if you'd pay more even if you lost (very rare here), you'd likely pay less than the inflated sum claimed.

shaftonred

Very quick question... understanding that I have done my defence.. what reason is there for not putting something like a covering letter together detailing certain things which could aid the case as opposed to waiting til the witness statement... things I refer to are as follows:


* VCS not making me aware at any stage that they would refer this to a 3rd party (BW Legal) despite me asking in my initial letter for my details not to be shared with a 3rd party.
* The court notice (Direct from the court) and Letter from BW Legal sent to my old address despite me informing them with good notice than my address had changed, thus potentially being a breach of my privacy and had I not had a re-direction set up would have caused me to miss the court date or not prepare correctly for any case.


Surely this in a cover letter would aid this? Sorry I just thought about this prior to signing my defence ready to be sent.

nosferatu1001

1) Irrelevant. Of course they can instruct lawyers.
2) You add that as a point, that the claimant has KNOWINGLY used an old address.

No covering letter.

Coupon-mad

Your defence will not be posted anyway, it is emailed to the CCBCAQ email addy as a signed/dated PDF.

Add this point to your actual defence, then reprint it and sign/date it, and email it to the CCBC AQ email:

The court claim and the most recent letter from BW Legal were sent to the Defendant's old address, despite the Defendant having previously informed BW Legal in writing that the Defendant's address for service had changed. Thus the Claimant's and their solicitors' conduct was not compatible with the Pre-Action Protocol for debt claims, nor the Data Protection Act statutory requirement to ensure that data is kept up to date and that it is correct. The Defendant avers that this conduct, if not deliberate, can be seen as negligent, and almost caused the Defendant to miss the court claim altogether and suffer a CCJ by default.

shaftonred

OK so I have just received a note from the courts advising that this is now a defended claim (I was hoping that following my defence statement that they may have dropped..oh well)...


So the notification I have from them is that:


1) The defendent has filed a defence but a copy isnt enclosed
2) It appears that the case is suitable for allocation to the small claims track
3) I must complete the small claims directions questionnaire and file with the court office.


So the questions I have is as follows:
1) I'm right in not choosing mediation with this arent i?
2) I should agree that the small claims track is appropriate for this?


I guess this is just confirming that I agree to go to small claims court and I will then receive notification of a date in which I need to submit my witness statement. At this stage will BW Legal have seen my defence statement which i sent?

Umkomaas

1) The defendent has filed a defence but a copy isnt enclosed

You are the Defendant so why would you be expecting a copy of your defence?

So the questions I have is as follows:
1) I'm right in not choosing mediation with this arent i?
2) I should agree that the small claims track is appropriate for this?

Both covered in the NEWBIES FAQ sticky, post #2.