UK CPM PCN received

DS90

Thanks both for the prompt responses. It appears that LR is the only course of action, as an MF has to demonstrate no interest in the case, which in this instance I'd imagine isn't applicable. There doesn't seem to be anything preventing me from acting as an LR, provided the defendant attends the hearing, as you've said.

Can you only issue counter-claims at this stage in your initial response, or can you do so later on? I've threatened them with a counter claim regarding DPA breach, as they've offered no proof that a contract existed between us, so they had no right to use my data?

Coupon-mad

You can only counter claim at this stage for £25 fee (later would be too much money to add it).

DS90

Thank you. I've now found the relevant post on the Newbies thread about counter-suing regarding the DPA, so won't worry about that now!

DS90

The first draft of my defence: https://www.dropbox.com/s/6xowd1w4eunoox6/Parking%20Defence.docx?dl=0

Please let me know if the link doesn't work! It's huge, so I didn't want to put it on here because of formatting hassle. Also, because of its length I appreciate it might be impossible for anyone to fully go through it, so any and all criticism is appreciated.

Hopefully I'm somewhere on the mark with it, I've amalgamated things from most of the recommended defences in the Newbies thread.

Umkomaas

It's huge, so I didn't want to put it on here because of formatting hassle.

It certainly is. Over seven and a half thousand words. I'd be most concerned about how a judge might react to this mahoosive tome.

Really, is this proportionate? Formatting hassle, in my view, should be the least of your concerns. You really need the judge, as best as possible, to be on your side.

See what others think.

[Deleted User]

The link is to a document that is 14 pages long. That's fine for a High Court claim, but it is a response to a few lines of particulars.

Umkomaas is right, they are prolix and may not be read as fully as you'd like.

I leave you with the words of Lord Woolf who wrote the civil procedure rules. This was in McPhilemy v Times Newspapers soon after the CPR was brought in. Although it refers to particulars, the same must apply to defences as that too is a 'statement of case.'

As well as their expense, excessive particulars can achieve directly the opposite result from that which is intended. They can obscure the issues rather than providing clarification.

Redx

I believe that bargepole recently wrote that a couple of pages is all that is required , setting out the basis to reject the claim and what the defence will be based on

https://forums.moneysavingexpert.com/discussion/comment/72412889#Comment_72412889

from https://forums.moneysavingexpert.com/discussion/comment/72412889#Comment_72412889

the evidential stage is after DQ , if they pay the next stage fee to MCOL

you cannot seriously expect forum members to dissect several thousand words, never mind a judge in a small claims court

DS90

Thanks all for the feedback, which is much appreciated as ever.

Here's round two, severely redacted (if it's still too long perhaps someone could just peruse the major numbered points and give advice on which can be cut, as I of course understand that people don't have time - and don't expect them - to read everything thoroughly):

Statement of Defence:
I am XXX, defendant in this matter. I wholly deny liability for the entirety of the claim for the following reasons:

1. The driver was allowed the right to park by the current occupier and leaseholder, whose tenancy agreement forms primacy of contract.
a. An unfettered right to park in this bay is bestowed upon the tenants by their lease agreement, with no requirement to display a permit.
b. The operator’s signs cannot override the existing rights enjoyed by residents and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in case number B9GF0A9E: ‘JOPSON v HOME GUARD SERVICES’.
i. In the Jopson appeal it was also held that signs added later by a third-party parking firm are of no
consequence to authorised visitors to premises where other rights prevail and supersede any
alleged new ‘parking contract’.
ii. In the Jopson appeal it was held that ‘PARKINGEYE LTD v BEAVIS’ (2015) UKSC 67 had no
application to a situation involving drivers with a right and expectation to be entitled to park under
the grants flowing from a lease.
c. ‘SAEED v PLUSTRADE LIMITED’ (2001) EWCA Civ 2011: On appeal it was held that easements enjoyed under the lease could not be restricted retroactively.
d. Pace Recovery and Storage v Mr N. (2016): it was found that the parking company could not override the tenant’s right to park by requiring a permit to do so.
i. District Judge Coonan concluded that Mr N.’s tenancy agreement granted the right to park without the requirement to display a permit.
ii. Mr N. also won a previous case, wherein the Judge ruled that his tenancy agreement gave him an unfettered right to use his allocated parking space and that the terms could not be varied by PPC signage.
e. Link Parking v Ms P. (2016): it was found that the PPC could not override the tenant’s right to park by imposing the requirement to display a permit.
i. As land occupier, Ms P. was granted the power to manage the space, which does not include the need to display a permit.
f. The claimant is not a party to the tenant’s lease and cannot arbitrarily vary it.

2. If primacy of contract is disputed, then the signage on site needs to be plentiful and easily visible, or no contract can be entered into knowingly by the driver.
a. In Link Parking v MR L (2016) it was found that the lack of entrance signage at a residential site and poor visibility of other signs was cause for dismissal.
b. The signage on the site in question was demonstrably unfit for purpose at the time in question in the formation of a contract with a motorist.
i. At the time of the alleged infraction signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation.
ii. They do not comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme, an organisation to which the claimant’s client was a signatory at the time of the purported infraction.
c. 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”.

3. The defendant was the registered keeper of the relevant vehicle at the time of the alleged infraction; the defendant was not the driver on the date and time mentioned in the particulars and the claimant is put to strict proof in this respect.
a. The claimant has offered no evidence as to the identity of the driver at the time of the purported infraction on any occasion.
b. The defendant has no liability for the claim, as they are the keeper of the vehicle and the claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 (POFA) in order to hold the defendant responsible for the driver’s alleged breach.
c. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the claimant must demonstrate that there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort.
d. Further, the claimant must also demonstrate that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
a. There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of ‘keeper liability’ as set out in Schedule 4:
i. ‘There is no “reasonable presumption” in law that the registered keeper of a vehicle is the driver […] Operators should never suggest anything of the sort.’
b. The claimant may seek to rely on a questionable interpretation of the judgement 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.
i. No such precedent was created. Mr Loake was found guilty on evidence produced to a criminal standard, not simply on a balance of probabilities as is the case in the current claim.

4. The claimant has not provided adequate detail in the particulars of claim for the defendant to file a full, relevant defence. In particular, the contract which has allegedly been breached has not been provided.
a. A parking charge can be issued for trespass, breach of contract, or a contractual charge. All of these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.
b. The claimant has disclosed no cause of action to give rise to any debt.
c. The claimant has given no indication of the nature of the alleged charge in the particulars of claim.
d. The particulars of claim contain no details and fail to disclose a reasonable cause of action, which would enable the defendant to prepare a specific defence, in full.
i. It is simply stated that the debt relates ‘to parking charges’, which offers no indication of the basis for which a claim is being brought. There is no reference to why the charge arose, what the original charge was, what the alleged contract denoted, nor anything which could be considered a fair exchange of information.
e. Multiple private parking claims brought by Gladstones have been struck out due to deficient and incoherent particulars of claim, which are demonstrably a templated format produced and disseminated en masse.

5. I charge the claimant with failure to make proper attempts to resolve the dispute outside of court. The claimant has repeatedly ignored reasonable requests and challenges, as well as a detailed appeal stating that the driver had explicit permission from the tenant and a tenancy agreement demonstrating the invalidity of the assertion that a permit is required to park on this land.
a. UKCPM Ltd denied the defendant any means of ADR, which is a legal necessity. The defendant received a letter, dated 2nd December 2016, which showcases an undeniable attempt to manipulate the driver’s identity from the keeper. This letter ignores the previously submitted appeal and fails to offer the legally prescribed requirement of ADR, which, if UKCPM Ltd decided to reject the appeal, it should have offered at that stage.

6. The claimant has not complied with pre-action protocol as outlined under the Practice Direction. The particulars of claim fail to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraph 7.3 CPR 16.4 states that
a. Particulars of claim must include –
i. A concise statement of the facts on which the claimant relies
ii. If the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2)

7. Practice Direction 16, paragraph 7.3 states that
a. Where a claim is based upon a written argument:
i. A copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and
ii. Any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

8. The particulars of claim fail to comply with Practice Direction 22, paragraphs 3.7-3.10
a. 3.7 Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.
b. 3.8 Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement:
i. That the client on whose behalf he has signed had authorised him to do so,
ii. That before signing he had explained to the client in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true, and
iii. That before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).
c. 3.9 The individual who signs a statement of truth must print his full name clearly beneath his signature.
d. 3.10 A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer.

9. The defendant asks that the court orders further and better particulars of claim and asks leave to amend the defence. The Defendant asks that the claimant be required to file particulars which comply with the practice directions referenced above and which include at least the following information:
a. Whether the matter is being brought for trespass, breach of contract, or a contractual charge, and an explanation as to the exact nature of the charge and a transparent breakdown of the constituent costs which form the alleged debt
b. A copy of any contract it is alleged was in place (e.g., copies of signage).
c. How any contract was concluded (if by performance, then copies of signage maps in place at the time).
d. Whether keeper liability is being claimed, and if so copies of any notice to driver/notice to keeper.
e. Whether the claimant is acting as agent or principal, together with a list of documents they will rely on in this matter.
f. If charges over and above the initial charge are being claimed, the basis on which this is being claimed.
g. If interest charges are being claimed, the basis on which this is being claimed.

10. Absent a 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 the claimant does 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.
a. The claimant is put to strict 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.
b. In the absence of strict proof I submit that the claimant has no cause of action.

11. The claimant has not sufficiently explained how the sum of debt has been calculated, the conduct that gave rise to it or how the amount has climbed arbitrarily to the amount currently claimed.
a. Schedule 4, paragraph 4(5) of the POFA 2012 states that ‘the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).’
b. The defendant holds the reasonable belief that the claimant has not incurred the stated additional costs and it is put to strict proof that this is the case.
c. The charge of £100 in addition to £1.50 for card payment exceeds the appropriate amount specified by law. Such arbitrary extra charges are prohibited under the POFA 2012, the Consumer Contracts (Information, Cancellation & Additional Payments) Regulations 2013, and the Consumer Rights (Payment Surcharges) Regulations 2012.

12. The driver did not enter into an ‘agreement on the charge’, no consideration flowed between the parties and no contract was established.

13. The claimant, their client, and other ‘debt recovery’ agents, have sent numerous threatening, misleading, disingenuous and manipulative letters.
a. The defendant has received multiple letters that attempt to undermine the protections offered a motorist through the provisions of POFA 2012. The claimant has repeatedly attempted to manipulate or extort the identity of the driver from the defendant through the use of deceptive tactics.
i. This contravenes the legislation of POFA 2012, the guidelines of the BPA, the IPC, and the DVLA.

14. The defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the ParkingEye vs Beavis case.
a. This site is a residential parking zone, reserved for the exclusive use of residents and their visitors; it does not offer a free parking license, nor is there any comparable ‘legitimate interest’ nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015.
b. The ultimate ruling in that case – despite what the claimant might aver – has no bearing on the current claim, other than in assisting the defendant’s allegation that the signage on the site currently in question was woefully inadequate when compared to that of the Beavis case, which were anomalously ‘clear and prominent’, creating a contract Mr Beavis was ‘bound to have seen’.
c. Such an observation sets the precedent that in order for a contract to be formed with a motorist, the signs must be abundant, prominent, legible, and with the most pertinent information – i.e., the £100 charge – displayed in paramount position.

15. The claimant has flagrantly violated several of the mandatory principles of the Solicitor Regulatory Association by which all solicitors must abide.

16. I shall be representing myself in an effort to mitigate my (and the claimant’s, in the event of a ruling in my favour) costs. Therefore, please accept any ignorance on my behalf.

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

NAME, SIGNATURE, DATE, ETC.

DS90

Just a cheeky bump in case anyone gets a chance to have a quick look. I'll be posting it tomorrow, Saturday at the latest. Thanks!

Coupon-mad

Bumping this again for us to see/comment on tomorrow...!