VCS/BW Legal - writing defence

MadHatter752

Thanks again everyone. By my reckoning I have until 10th Feb but to get it there in the post I need to have it done earlier. So still got a bit of time. I have printed off three defences from the forum and am piecing them together and selecting bits i think are applicable to my case. I will be back with a draft once I've done it.:cool:

MadHatter752

Hello Again

So below, is the first draft of my defence.

I found three defences on the forum which seemed pretty similar to my case so I have tried to piece them all together without duplicating anything. Some of the wording has thrown me a little bit so if you think I have made the same point twice please let me know.

Open to any help/advice/criticism... literally the first time I have ever done anything like this.

Thanks for your help in advance.

By my reckoning, I think I've got until about the 8th but I would like to get it in the post Monday 6th at the latest.



1. 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.

2. The Defendant denies any liability to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case:
I. The carpark in which the Claimant alleges the breach of contract occurred is covered by the Railway
Byelaws 2005 (as amended)(RB2005). Parking enforcement is therefore a criminal matter not a civil
matter and as such, Keeper Liability does not apply
II. Breaches of byelaws are prosecuted at Magistrates Court, not County Court
III. The Claimant has not identified the driver
IV. The Claimant did not offer a genuine contract and the amount claimed was intended as an
unconscionable penalty.
V. The Claimant has disclosed no cause of action

3. The Claimant has provided insufficient details in the Particulars to enable me to file a complete defence. In particular, neither photographic evidence of the alleged contravention nor full details of the alleged contract have been provided.
For example: CPR 16.4 Contents of the particulars of claim
(1) Particulars of claim must include –
(a) a concise statement of the facts on which the claimant relies
(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);#They have stated they are seeking interest from date x to date y, but provide no details (the defendant clearly told the Claimant that the debt was denied and that they were not the driver. The Defendant is not therefore liable for the Claimant’s delay in bringing a claim).
(e) such other matters as may be set out in a practice direction.

PD 16 paras 7.3 – 7.5

7.3 Where a claim is based upon a written agreement:
(1) 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
(2) 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).

7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.
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.

4. Marston Green B – the location of the Defendant’s alleged “breach of contract in respect of 1 Parking Charge Notice for vehicle XXXXXXX” – is covered by railway byelaws. This fact is confirmed two reports Centro (now known as Network West Midlands) published two reports, the first to the Integrated Transport Authority (ITA) in April 2014 and the second containing its implementation plan for parking enforcement in June 2014. Both documents are explicit in identifying that the Railway sites are covered by the RB2005 and Centro highlight legal advice that they received to that fact. For example, the June document item 10.3 states that 'With regard to Rail Car Parks, Centro would need to rely on a breach of Byelaw 14 in order to prosecute a person in contravention of those regulations.: Centro’s (now known as Network West Midlands) 28 April 2014 report to the Integrated Transport Authority stated:

Centro’s legal team has undertaken a review of appropriate legislation to understand what enforcement action can be taken against customers who park inappropriately and/or cause obstructions to other car park users. Subject to Member approval Railway Byelaw 14 would effectively allow Centro to take appropriate action against cars parked outside of marked bays where the car park is appropriately signed. Centro’s use of Byelaw 14 is something fully supported by Network Rail and London Midland. In relation to non-railway Park and Ride sites, whilst Centro as a private landowner has no power to immobilise or remove vehicles, it does have the ability to enforce inappropriate parking by way of issuing parking notices subject to member approval.

Under the Protection of Freedoms Act 2012 (the Act), Keeper Liability cannot be relied upon unless the land is “relevant land” and this legislation expressly removes public roads from the legislation. As a matter of law, therefore, it is not Relevant Land within the meaning of section 3(1)© of Schedule 4 of the Act, and thus only the driver can be pursued, if indeed Vehicle Control Services is entitled to pursue anyone. As such, this claim, which relies on Keeper Liability, has no prospect whatsoever of succeeding as it fails ab initio and should therefore be dismissed. Vehicle Control Services is fully aware and conversant with this element of the legislation.

The June document also explicitly states that the Magistrates Court route is the correct route for enforcement. Clause 10.5 states 'penalty notices can therefore be issued and, if considered necessary, an action brought in the Magistrates Court in the event of non-payment of the penalty sum'.

5. Parking infringements at the site are subject to statutory controls and should result in the issuance of Penalty Notices under Byelaw 14, not Parking Charge Notices under civil law.
Centro has now changed to Network West Midlands and the website domain has changed. I have tried searching for this report but the links to the Centro website aren’t working anymore. Any ideas?

6. The Defendant neither admits nor denies that he was driver, and can prove to the Court that more than one person had access to and was insured to drive the vehicle XXXXXXX at the time of the alleged breach of contract. The Claimant is put to strict proof that the Defendant was the driver on the day. The event was so long ago that it is impossible to recall and therefore any evidence to support the claim must be presented.

It is clear from the claim as submitted that Vehicle Control Services is accusing the Defendant of having parked the vehicle for this period. However, the Defendant is merely the registered keeper of the vehicle, and no evidence has been adduced by Vehicle Control Services as to the driver’s identity. Under section 54 and schedules 8 and 9 of the Protection of Freedoms Act 2012 (the Act), the keeper can only be held liable if Vehicle Control Services can demonstrate that it has given the keeper every lawful opportunity to name the driver, and certain other conditions must be complied with. It is not admitted that Vehicle Control Services has complied with the Act; indeed as shown below it is impossible for them to do so and I put Vehicle Control Services to strict proof of its compliance.

7. The Claimant has stated in the Particulars of Claim that “the Terms and Conditions to which the Defendant agreed to be bound by using the Car Park were clearly displayed at the entrance and in prominent locations throughout the Car Park” . The Defendant is in no position to confirm what signs were in place more than one year ago. The Defendant was unaware of any signs until alerted to them by the Claimant’s Parking Charge Notice. The Defendant denies that the current signs outlining the terms and conditions are clear and visible. A clear and visible sign stating the terms and conditions at the entrance to the car park is a specific requirement of the Independent Parking Committee Code of Practice that the Claimant is required to follow. This is absent. The Defendant refers the court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by a driver entering the car park. I have video evidence that any signs outlining terms and conditions are not visible or readable in a vehicle.

The (current) sign at the entrance to the car park carries the name "Network West Midlands" relatively prominently, and offers free parking. This would reasonably be taken by a motorist entering the car park as meaning that one or both of those entities is a legal person granting a licence to use the car park.

The supposed contractual terms offered by VCS are considerably less prominent, and indeed entirely unreadable by the driver of a moving vehicle.

Accordingly the driver of my vehicle was using the car park under the terms of a licence granted by "Network West Midlands". As a result no offer of parking as contractual consideration could be made by VCS, therefore no contract exists with VCS (even if the signage elsewhere in the car park were prominent enough to convey the terms of such a contract, which is denied).

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, wording and lighting 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.

The Claimant is therefore put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
The Claimant is put to strict proof of all his assertions.

8. The Particulars of Claim do not give any reason why the Claimant requires a payment other than that it results from the vehicle being “parked beyond the bay markings” (#86). This vague accusation does not reveal a cause of action is akin to a template claim issued for no other purpose that to use the threat of court to force payment of a sum that is not owed.

The Defendant denies that he would have agreed to pay the original demand of £100 to perform the alleged but undisclosed conduct. The Defendant has no idea what terms and conditions were stated on the signs but disputes the Claimant’s statement that such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable belief that the Claimant’s intention was not to offer a genuine contract to park at that price - since it is a free car park - and the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188: Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in almost identical words (21 February 2014).

9. The Defendant notes that the Claimant intends to rely on ParkingEye v Beavis. The Defendant is aware that the facts in the present case including the Claimant’s interest in the land differ significantly from Beavis in a number of important details. Firstly, the land, as mentioned previously, is covered by byelaws. Secondly, the driver identity is in doubt given the length of time since the parking event. Thirdly, there was no contractual offer made giving a licence to park nor any promise made or contract agreed based on any prominent signs or properly marked lines. Fourthly, there is no comparable legitimate commercial justification for charging more than the landowner could claim by way of restitutionary damages and/or under the byelaws.

It hasn’t been mentioned in any correspondence but should I mention Elliot vs Loake in case they try to use it?

10. Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Consumer Rights Act 2015. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive:

With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.

11. It is the understanding of The Defendant that The Claimant has brought a claim that discloses no cause of action. The Defendant has the reasonable belief that the Claimant is abusing the court process by using the threat of action to alarm the Defendant into making a payment that is not owed. The Defendant is aware that the Claimant has a well-documented history of issuing large numbers of court claims that are discontinued at very short notice before a scheduled hearing.

The Defendant therefore asks the court to strike out the claim as having no reasonable prospect of success as currently drafted.

Alternatively, the Defendant asks that the claimant is required to file particulars which comply with practice directions and include at least the following information:

I. 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
II. A copy of any contract it is alleged was in place (eg copies of signage)
III. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
IV. Whether keeper liability is being claimed, and if so copies of any notice to driver/notice to keeper
V. Whether the Claimant is acting as agent or principal, together with a list of documents they will rely on in this matter
VI. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
VII. If interest charges are being claimed, the basis on which this is being claimed

12. It is denied that the Claimant is the lawful occupier of the land. 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 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.

13. The Claimant is therefore put to strict proof that at the time of the alleged event they were 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.

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

15. 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.

16. 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.

17. The Claimant is put to strict proof that such a “relevant obligation” existed and that the Claimant has followed the correct procedure to transfer liability to the Registered Keeper.

18. In the absence of strict proof as to the existence or otherwise of a “relevant obligation” and as to properly transferring liability to the Registered Keeper the court is invited to strike the matter out.

19. The claim is for breach of contract (Particulars item 6). In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, then absent any legitimate interest, it is a penalty and unenforceable. It is argued that there is no legitimate interest in this case.

20. The Claimant may rely on the ruling of ParkingEye v Beavis [2015] UKSC 67. The facts of that case (specifically signage, location and legitimate interest) are different.

21. The Traffic Management Act 2004 (TMA2004) gives guidance to the level of penalty charges reflecting the severity of the contravention. The equivalent guidance for this case (parked beyond the bay markings) are £25 rising to £50 after 14 days. In comparison to this the sum demanded is clearly far more than that needed to deter and is therefore disproportionate.

22. The Consumer Rights Act 2015 Schedule 2, Part 1 states that the following may be unfair: (6) A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation. The Defendant alleges that the requested parking charge is disproportionate compared to the guidance given in the TMA2004.

23. The Defendant invites the court to strike out the claim as having no prospect of success. Alternatively, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim. In the event of the Claimant amending their Particulars of Claim and/or adding significant details not yet disclosed, the Defendant reserves the right to add a fair response to new points made by this Claimant, to prevent a significant imbalance in the Defendant's rights as an unrepresented consumer.

The defendant believes the facts stated in this defence are true.

MadHatter752

Anyone got any thoughts? I was hoping to have this sent off this weekend.
Thanks

Coupon-mad

Nice - covers all angles but check for repetition and weed it out. For example only invite the strike the claim out of its own volition once (I think I read that at least twice).

The only other thing is - be consistent, if you know you were not the driver, as stated here in 3(b):

(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);#They have stated they are seeking interest from date x to date y, but provide no details (the defendant clearly told the Claimant that the debt was denied and that they were not the driver. The Defendant is not therefore liable for the Claimant’s delay in bringing a claim).

Then restate that here, not that it's too long ago to recall:

6. The Defendant neither admits nor denies that he was driver, and can prove to the Court that more than one person had access to and was insured to drive the vehicle XXXXXXX at the time of the alleged breach of contract. The Claimant is put to strict proof that the Defendant was the driver on the day. The event was so long ago that it is impossible to recall and therefore any evidence to support the claim must be presented.

Finally, had you considered tacking on a counter-claim for DPA misuse?

If you did tell VCS early doors, that you were NOT the driver, then IMHO, on non-relevant land where you also have the benefit of CENTRO's article stating they know that can only enforce using byelaws, how on earth can they justify continuing to process your data beyond the day you said 'I was not the driver'. They can't proceed under the assumption you were and they can't use byelaws in county court and they can't use the POFA either. So, a DPA breach counter-claim is worth including.

MadHatter752

Thanks CM.

I have never denied or admitted to being the driver... just confirmed the driver was unable to be identified so I am not sure misuse of DPA would help here... what do you think?

Coupon-mad

I think you can't say this then:

(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);#They have stated they are seeking interest from date x to date y, but provide no details (the defendant clearly told the Claimant that the debt was denied and that they were not the driver. The Defendant is not therefore liable for the Claimant’s delay in bringing a claim).

You may wish to concentrate on winning this defended case first, then afterwards suing for compensation for data misuse, assuming the data came from the DVLA in the first place (not from you appealing). You have 6 years to sue for that and this court case and evidence might help you decide, also over time you will learn from this forum how DPA claims are going, what sort of wording to use, etc.

So if pressed for time, I'd say no counter-claim, get shot of this first then consider serving revenge later...cold.

MadHatter752

thanks CM.

Do you think it is numbered ok? I seem to start off with lots under each numbered point and end up at the end with just one sentence under each point. do you think each new paragraph should have it's own number for ease of reference?

Coupon-mad

Yes, or where it's on the same exact topic, break it down like this:

7.1
7.2.
7.3

Etc.

MadHatter752

thanks. I am going to try and finish Tuesday and have it in the post Wednesday, should arrive Thursday and i think cut off date is Friday.

Just had hubby read through it as I have read it so many times that I am missing duplicate bits and grammar errors so he has identified a few things to alter.

the points seem a bit all over the place too so need to group them better. I'll try post a final defence tuesday night for others to use and any last comments before i print it off and send!

MadHatter752

Evening All

Below is what I hope will be my final draft.... I would be so grateful for a final sanity check and any adjustments you think it will need. I have tried to arrange the points in topic order but correct me please if you think it could be laid out better.

Finally, do I need to do anything further on the MCOL website or just put my defence in the post? I don't know whether I need to "complete the defence form" without actually putting anything in the defence box?

thank you all so much - i will be posting Wednesday morning.

MadHatter752


1. 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.

2. The Defendant denies any liability to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case:
(a)The carpark in which the Claimant alleges the breach of contract occurred is covered by the Railway
Byelaws 2005 (as amended)(RB2005). Parking enforcement is therefore a criminal matter not a civil
matter and as such, Keeper Liability does not apply
(b) Breaches of byelaws are prosecuted at Magistrates Court, not County Court
(c) The Claimant has not identified the driver
(d) The Claimant did not offer a genuine contract and the amount claimed was intended as an
unconscionable penalty.
(e) The Claimant has disclosed no cause of action

3. The Claimant has provided insufficient details in the Particulars to enable me to file a complete defence. In particular, neither photographic evidence of the alleged contravention nor full details of the alleged contract have been provided.

For example CPR 16.4 states:
(1) Particulars of claim must include –
(a) a concise statement of the facts on which the claimant relies;
(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph(2);
(c) if the claimant is seeking aggravated damages(GL) or exemplary damages(GL), a statement to that effect and his grounds for claiming them;
(d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and
(e) such other matters as may be set out in a practice direction.
(2) If the claimant is seeking interest he must –
(a) state whether he is doing so –
(i) under the terms of a contract;
(ii) under an enactment and if so which; or
(iii) on some other basis and if so what that basis is; and
(b) if the claim is for a specified amount of money, state –
(i) the percentage rate at which interest is claimed;
(ii) the date from which it is claimed;
(iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued;
(iv) the total amount of interest claimed to the date of calculation; and
(v) the daily rate at which interest accrues after that date.


In addition, PD 16 states the following:

7.3 Where a claim is based upon a written agreement:
(1) 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
(2) 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).
7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.
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.

4. It is the understanding of The Defendant that The Claimant has brought a claim that discloses no cause of action. The Defendant has the reasonable belief that the Claimant is abusing the court process by using the threat of action to alarm the Defendant into making a payment that is not owed. The Defendant is aware that the Claimant has a well-documented history of issuing large numbers of court claims that are discontinued at very short notice before a scheduled hearing.

Alternatively, the Defendant asks that the claimant is required to file particulars which comply with practice directions and 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
(b) A copy of any contract it is alleged was in place (eg 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

5. Marston Green B – the location of the Defendant’s alleged contravention – is covered by railway byelaws. This fact is confirmed in two reports Centro (now known as Network West Midlands) published, the first to the Integrated Transport Authority (ITA) in April 2014 and the second containing its implementation plan for parking enforcement in June 2014. Both documents are explicit in identifying that the Railway sites are covered by the RB2005 and Centro highlight legal advice that they received to that fact.

(a) For example, the June document item 10.3 states that 'With regard to Rail Car Parks, Centro would need to rely on a breach of Byelaw 14 in order to prosecute a person in contravention of those regulations. Centro’s (now known as Network West Midlands) 28 April 2014 report to the Integrated Transport Authority stated:

Centro’s legal team has undertaken a review of appropriate legislation to understand what enforcement action can be taken against customers who park inappropriately and/or cause obstructions to other car park users. Subject to Member approval Railway Byelaw 14 would effectively allow Centro to take appropriate action against cars parked outside of marked bays where the car park is appropriately signed. Centro’s use of Byelaw 14 is something fully supported by Network Rail and London Midland. In relation to non-railway Park and Ride sites, whilst Centro as a private landowner has no power to immobilise or remove vehicles, it does have the ability to enforce inappropriate parking by way of issuing parking notices subject to member approval.

(b) The June document also explicitly states that the Magistrates Court route is the correct route for enforcement. Clause 10.5 states 'penalty notices can therefore be issued and, if considered necessary, an action brought in the Magistrates Court in the event of non-payment of the penalty sum'.

6. Parking infringements at the site are subject to statutory controls and should result in the issuance of Penalty Notices under Byelaw 14, not Parking Charge Notices under civil law.

7. Under the Protection of Freedoms Act 2012 (the Act), Keeper Liability cannot be relied upon unless the land is “relevant land” and this legislation expressly removes public roads from the legislation. As a matter of law, therefore, it is not Relevant Land within the meaning of section 3(1)© of Schedule 4 of the Act, and thus only the driver can be pursued, if indeed Vehicle Control Services is entitled to pursue anyone. As such, this claim, which relies on Keeper Liability, has no prospect whatsoever of succeeding as it fails ab initio and should therefore be dismissed. Vehicle Control Services is fully aware and conversant with this element of the legislation.

8. The Claimant is put to strict proof that a “relevant obligation” existed and that the Claimant has followed the correct procedure to transfer liability to the Registered Keeper.

9. The Defendant neither admits nor denies that she was driver, and can prove to the Court that more than one person had access to and was insured to drive the vehicle XXXXXXX at the time of the alleged breach of contract. The Claimant is put to strict proof that the Defendant was the driver on the day.

10. It is clear from the claim as submitted that Vehicle Control Services is accusing the Defendant of having parked the vehicle for this period. However, the Defendant is merely the registered keeper of the vehicle, and no evidence has been adduced by Vehicle Control Services as to the driver’s identity. Under section 54 and schedules 8 and 9 of the Protection of Freedoms Act 2012 (the Act), the keeper can only be held liable if Vehicle Control Services can demonstrate that it has given the keeper every lawful opportunity to name the driver, and certain other conditions must be complied with. It is not admitted that Vehicle Control Services has complied with the Act; indeed it is impossible for them to do so and I put Vehicle Control Services to strict proof of its compliance.

11. It is denied that the Claimant is the lawful occupier of the land. 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 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. The Claimant is therefore put to strict proof that at the time of the alleged event they were 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.

12. The Claimant has stated in the Particulars of Claim that “the driver is liable for a Parking Charge in accordance with the Terms and Conditions as prominently displayed on this site”.

(a) The Defendant is in no position to confirm what signs were in place more than two years ago. The Defendant was unaware of any signs until alerted to them by the Claimant’s Parking Charge Notice.

(b) The Defendant denies that the current signs outlining the terms and conditions are clear and visible. A clear and visible sign stating the terms and conditions at the entrance to the car park is a specific requirement of the Independent Parking Committee Code of Practice that the Claimant is required to follow. This is absent. The Defendant refers the court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by a driver entering the car park. The Defendant has video evidence that any signs outlining terms and conditions are not visible or readable in a vehicle which can be supplied if required.

(c)The (current) sign at the entrance to the car park carries the name "Network West Midlands" relatively prominently, and offers free parking. This would reasonably be taken by a motorist entering the car park as meaning that one or both of those entities is a legal person granting a licence to use the car park.

(d) The supposed contractual terms offered by VCS are considerably less prominent, and indeed entirely unreadable by the driver of a moving vehicle.

(e) Accordingly the driver of my vehicle was using the car park under the terms of a licence granted by "Network West Midlands". As a result no offer of parking as contractual consideration could be made by VCS, therefore no contract exists with VCS (even if the signage elsewhere in the car park were prominent enough to convey the terms of such a contract, which is denied).

(f) 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, wording and lighting 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.

(g) The Claimant is therefore put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant. The Claimant is put to strict proof of all his assertions.

13. The Particulars of Claim do not give any reason why the Claimant requires a payment other than that it results from the vehicle being “parked beyond the bay markings” (#86). This vague accusation does not reveal a cause of action and is akin to a template claim issued for no other purpose that to use the threat of court to force payment of a sum that is not owed.

14. The Defendant denies that she would have agreed to pay the original demand of £100 to perform the alleged but undisclosed conduct. The Defendant has no idea what terms and conditions were stated on the signs but disputes the Claimant’s statement that such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable belief that the Claimant’s intention was not to offer a genuine contract to park at that price - since it is a free car park - and the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188: Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in almost identical words (21 February 2014).

15. The Traffic Management Act 2004 (TMA2004) gives guidance to the level of penalty charges reflecting the severity of the contravention. The equivalent guidance for this case (parked beyond the bay markings) are £25 rising to £50 after 14 days. In comparison to this the sum demanded is clearly far more than that needed to deter and is therefore disproportionate.

16. The Consumer Rights Act 2015 Schedule 2, Part 1 states that the following may be unfair: (6) A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation. The Defendant alleges that the requested parking charge is disproportionate compared to the guidance given in the TMA2004.


17. The Defendant notes that the Claimant intends to rely on ParkingEye v Beavis. The Defendant is aware that the facts in the present case including the Claimant’s interest in the land differ significantly from Beavis in a number of important details.
(a) The land, as mentioned previously, is covered by byelaws
(b) The driver has not been identified
(c) There was no contractual offer made giving a licence to park nor any promise made or contract agreed based on any prominent signs or properly marked lines
(d) There is no comparable legitimate commercial justification for charging more than the landowner could claim by way of restitutionary damages and/or under the byelaws.

18. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, then absent any legitimate interest, it is a penalty and unenforceable. It is argued that there is no legitimate interest in this case.

19. Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Consumer Rights Act 2015. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive:

With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.

20. The Claimant must 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.

21. The Defendant invites the court to strike out the claim as having no prospect of success. Alternatively, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim. In the event of the Claimant amending their Particulars of Claim and/or adding significant details not yet disclosed, the Defendant reserves the right to add a fair response to new points made by this Claimant, to prevent a significant imbalance in the Defendant's rights as an unrepresented consumer.

The defendant believes the facts stated in this defence are true.