Proceedings issued, NTK invalid, Gladstones/Millennium refusing to respond

System

Are you saying that it follows that if Millennium can't enforce against a tenant/leaseholder then they cannot enforce ANY parking on the site, against visitors/contractors/third parties there without any reason other than to nick a bit of free parking?

That is the line I would put.

Loadsofchildren123

I'm going to draft my defence in the next couple of days, I will post it here and would appreciate any feedback.

The_Deep

Loadsofchildren123 wrote: »

post #38 - who is the landlord's agent if it isn't Millennium? do you mean the letting agent who is letting out the flats, or the freeholder (ie the landowner)?

Letting agents let out flats to tenants. They have no relationship with the managing agents, who sweep the carpets, do the gardening, and insure the building.


It is the MA to whom the leaseholder pays the service charges, and often collects the ground rent.

Loadsofchildren123

Thank you for all the help so far

Loadsofchildren123

Am going to post their statement and my amended defence, any comments much appreciated

Loadsofchildren123

I, xxx, OF xxxWILL SAY AS FOLLOWS:

1. I am the Employee of the Claimant Company (‘my Company’) and I am duly authorised to makethis statement on its behalf. The facts and matters set out in this statement are within my ownknowledge unless otherwise stated and I believe them to be true. Where I refer to informationsupplied by others, the source of the information is identified; facts and matters derived fromother sources are true to the best of my knowledge and belief.

2. Exhibited to this Witness Statement at ‘GSL1’ are following documents which my Companywishes to rely upon;
i) The Agreement authorising my Company to manage parking on the relevant land (asdescribed therein and hereinafter referred to as ‘the Relevant Land’)
ii) The Sign (i.e. the Contract)
iii) The Site Plan
iv) Notices
v) Photographs of the incident
vi) Letter Before Claim

3. The Defendant is liable for a parking charge relating to the parking of a vehicle on the RelevantLand in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in theSchedule below are details of the parking charge;

PCN NUMBER DATE OF CHARGE LOCATION DESCRIPTION

MPS7818 31st October 2015
Copper Quarter- Swansea- SA1
7BP
Permit displayed obscured


The Defence

4. The Defendant avers that they were not driver of the vehicle at the time the parking charge wasincurred. The Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper ofa vehicle may be presumed to have been the driver unless they sufficiently rebut thispresumption. To date the Registered Keeper has been invited on numerous occasions to identifythe driver, yet has failed to do so. The Court is therefore invited to conclude it more likely thannot that the Registered Keeper (i.e. the Defendant) was the driver.

5. In the alternative, if the Court is not able to infer that the Defendant was, in fact, the driver thenthe Defendant is pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 (4)(1) ofthe Protection of Freedoms Act 2012 (‘the Act’) which states:
“The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.”

6. The relevant Notice was/were sent to the Defendant in accordance with the Act and theRegistered Keeper (the Defendant) failed to nominate who was driving the vehicle prior to theseproceedings (which is required under the Act (paragraph 5(2)).

7. The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the “keeper” means theperson by whom the vehicle is kept at the time the vehicle was parked, which in the case of aregistered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.

8. The signs make it clear that a valid permit must be displayed and as evident from thephotographs the Defendant failed to correctly display a permit at the time of the incident. Somuch so, that we are unable to ascertain whether this is a valid permit.

The Current Debt

9. In view of the Defendant not paying the charge within the 28 days allowed they are in breach ofthe contract. Breach of contract entitles the innocent party to damages as of right in addition tothe parking charge incurred.

10. In view of the Defendant not paying the charge the matter was passed to my Company’s legalrepresentatives, Gladstones Solicitors Ltd. The debt has, as a result of this referral risen as myCompany’s staff have spent time and material in facilitating the recovery of this debt. This timecould have been better spent on other elements of my Company’s business. My Companybelieves the costs associated with such time spent were incurred naturally as a direct result ofthe Defendant’s breach and as such asks that this element of the claim be awarded as a damage.

11. The costs claimed are a pre-determined and nominal contribution to the actual losses.Alternatively, my Company does have a right to costs pursuant to the sign (i.e. the contract).

STATEMENT OF TRUTH

I believe that the facts stated in this witness statement are true.

Loadsofchildren123

Defence part 1

1. The Defendant denies that he is liable for the entirety of the Claim for the following reasons, any one of which is fatal to the Claim:
1.1 The Claimant has not identified the driver;
1.2 the Defendant denies that he was the driver;
1.3 The Claimant had no capacity to form a contract with the driver;
1.4 If the Claimant did have such capacity, no contract was formed because the signs did not contain appropriate wording and/or were not displayed with any prominence and were not legible to motorists, and there was no clear sign at the entrance to the Relevant Land warning motorists about terms of conditions set out on signage inside the Relevant Land;
1.5 If the Claimant did have such capacity, it did not offer a genuine contract and the amount claimed was intended as a penalty;
1.6 Any contract is invalid and unenforceable;
1.7 Even if a debt had existed, it would be owed to the landowner, not the Claimant;
1.8 The Claimant has no contractual right to pursue these proceedings in its own right;
1.9 The Claimant had no right to issue parking charges to the driver of the vehicle;
1.10 The Particulars of Claim disclose no cause of action and are in breach of several aspects of the Civil Procedure Rules (“CPR”), so much so that they are incoherent and do not amount to any recognisable claim. They should be struck out;
1.11 The Notice to Keeper is not a valid Notice to Keeper served in accordance with Schedule 4 to the Protection of Freedoms Act 2012 and therefore the Defendant cannot be held liable as the registered keeper of the vehicle in question;
1.12 The addition of £50 to the parking charges set out in the Notice to Driver have no basis and are not recoverable, even if the parking charges are recoverable;
1.13 None of the conditions in paragraphs 5, 6, 11 and 12 of Schedule 4 to the Protection of Freedoms Act 2012 have been met by the Claimant.

2. The Claim as set out in the Particulars of Claim is incoherent, because it contains no cause of action nor any details about the Claim, how it arises or to what it relates. Some details are provided in the Witness Statement of India Beavan dated 13 January 2017 (“the Claimant’s Statement”), although they are scant. The fact that information is retrospectively contained in a Statement does not remedy the breaches of the CPR in relation to the Particulars of Claim. If it wished to clarify and add details about the claim, the Claimant should have applied for leave to file Amended Particulars of Claim. It has not done so, thus avoiding any application and the payment of a fee. The Defendant objects to this and asks that the claim is dealt with according to the Particulars of Claim (which disclose no cause of action and provide no detail whatsoever). Without prejudice to that, and in case the court is minded to take into account the matters in the Claimant’s Statement, this Defence is made in respect of the matters contained in both the Particulars of Claim and the Claimant’s Statement.

3. It is admitted that the Defendant was the authorized registered keeper of the vehicle at the time of the alleged incident.

4. The Defendant denies that the Claimant can have incurred £50 in solicitors’ costs or that these are recoverable.

Liability as the Driver

5. The Defendant was not the driver of the vehicle at the relevant time.

6. The Defendant cannot have been the driver because since 2011/12 (he cannot recall the exact date) he ceased to drive and when his driving licence expired in or about 2012 he did not apply to renew it and has not reapplied since. Pursuant to relevant laws, after a person reaches the age of 70 in the UK they must reapply to the DVLA every three years for their driving licence to be renewed (producing written evidence that they meet the minimum eyesight requirement). In the case of the Defendant, by the time he reached his 82nd birthday in 2012 he had decided that he no longer wished to drive and therefore did not reapply for his licence. Therefore, at the relevant time (31 October 2015) the Defendant neither held a valid driving licence nor was he insurance to drive and has not driven any motor vehicle. The Defendant is now 86 years of age.

7. The identity of the driver of the vehicle on the date in question has not been ascertained. The Claimant has not identified the driver. The Defendant does not know who the driver was. He has made reasonable enquiries of third parties who were authorized to drive the said vehicle at the time of the alleged incident. None have admitted that they were the driver because they cannot remember, and the Defendant cannot remember who used the car on the date in question (31 October 2015), a date some 15 months ago. The Defendant has no means of finding out who the driver was, and in any event is not obliged to do so by the Protection of Freedoms Act 2012 or any other legislation, or pursuant to any contractual obligation.

8. With regard to the Claimant’s assertion that the Defendant, as keeper of the vehicle, should be presumed to be the driver unless he sufficiently rebuts this presumption, which it claimsis a principle established byElliott v Loake 1983 Crim LR 36:
8.1 The case relied upon does not provide that any such presumption can or should be made, nor that it is for the Defendant to rebut it. A claim is for the Claimant to prove and there is no reverse burden of proof in respect of parking charges;
8.2 In the case relied upon there was overwhelming evidence that the keeper of the car was driving it at the relevant time – there is no such evidence in this Claim (quite the contrary);
8.3 In any event the Defendant has sufficiently rebutted any presumption because at the relevant time he was not entitled to drive, having no valid driving licence or insurance.

9. The Defendant therefore has no liability as the driver of the vehicle, whether or not a valid contract was formed between the Claimant and the driver, as claimed. In any event it is denied that there was any such contract and this is dealt with at paragraphs 11-23 below.

10. The Defendant puts the Claimant to full proof that he was the driver of the vehicle at the relevant time.

Loadsofchildren123

defence part 2
Liability pursuant to an alleged contract

11. The Claimant is put to full proof that it has sufficient interest in the land which is referred to as the Relevant Land, that it is a party to the Agreement appended to pages 4 and 5 of the Claimant’s Statement, that the Agreement grants any rights whatsoever to the Claimant, that there are specific terms in the Agreement which entitled it to attempt to levy parking charges against the driver (and then against the keeper) of the vehicle in question, and that it is entitled by the Agreement or otherwise to bring an action on its own behalf. It is denied that the Claimant has any locus, as agent of the landholder or pursuant to the Agreement, to bring these proceedings when it has no ownership of, or proprietary interest in, the Relevant Land. If any debt exists, it is owed to the owner of the Relevant Land.

12. With regard to the Claimant’s assertion that the driver entered into a contract with the Claimant, the Defendant denies that any such contract exists, for the reasons set out in paragraphs 13 to 23 below and puts the Claimant to full proof thereof.

13. The wording on the signage, which the Claimant asserts forms the basis of the contract relied upon, is insufficient to form any contract: it lacks any offer and is forbidding in its wording.The offer to park is made only to those validly displaying a permit. Anyone not doing so can therefore only be a trespasser because they are not being offered anything and are instead threatened with a penalty. Under the law of trespass, it is only the landowner who can sue for damages and the Claimant is not the landowner. In addition, there was no clear signage at the entrance to the Relevant Land drawing the driver’s attention to signage within the Relevant Land or to any terms and conditions of parking there.

14. The Claimant’s intention was not to offer a genuine contract to park. The main purpose of the wording claimed to have been displayed on signage was to deter unauthorized parking by attempting to enforce a penalty. The parking charges sought are not a genuine pre-estimate of loss.

15. The signage displayed on the Relevant Land at the relevant time was of a size, type and font, and was displayed in such a manner, that it was difficult to read from any distance, was not prominent, nor was it obvious, clear or easily legible to the driver of the vehicle. It was not beholden on the driver to look for signage, but on the Claimant to ensure that signage was so obvious that any reasonable driver would have seen it, understood what it was and been able to read it.

16. The alleged contract must be a “distance contract” pursuant to the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013. Such a contract can only be created if information listed in Regulation 13 is provided in advance. Such information was not provided and the contract cannot therefore be binding. This is also the case if the alleged contract is an on- or off-premises contract pursuant to the same Regulations.

17. The Agreement produced at pages 4-5 of the exhibit to the Claimant’s Statement was not made between the owner of the Relevant Land and the Claimant. The Defendant puts the Claimant to full proof of who owns the land, whom he believes is Barratt Homes Limited, and to produce a chain of contracts showing authorization from the lawful owner and occupier of the Relevant Land to the Claimant to issue parking charges, pursue their recovery and to issue and pursue proceedings in its own name and on its own behalf. If the landowner is different from the “Client” named in the Agreement (BDM South Wales Ltd) the Claimant has failed to show what authority the “Client” has to grant a third party authority to manage the parking on the Relevant Land and to issue parking charges to unauthorized vehicles.

18. The Claimant is not a party to the Agreement, which was entered into between “BDM South Wales Ltd” and “Millennium Parking Services”. Millennium Parking Services is described in wording which does not form a part of the Agreement but which appears at the foot of the paper on which it is written, and also in small lettering at the foot of the sign appended at page 6 of the Claimant’s Statement, as a “division” of the Claimant. The same documentation also states that the Claimant trades as “The Millennium Group”. It does not therefore trade as Millennium Parking Services. The legal personality of “Millennium Parking Services” and the basis upon which the Claimant asserts it is entitled to exercise or benefit from any rights granted by the Agreement to Millennium Parking Services is therefore unclear and the Claimant is put to full proof thereof.

19. Even if the Claimant is a party to the Agreement, and even if the rights granted to the Claimant by the Agreement were validly granted, the Agreement grants no right to the Claimant to bring an action for breach of contract on its own behalf. As a third party agent, the Claimant has no such rights of its own and such rights cannot be implied.

20. The Claimant is not the lawful occupier or owner of the Relevant Land and has not shown any authority to issue or pursue parking charges in its own name. The Claimant, even if authorized pursuant to the Agreement, is acting as an agent of a party who appears to be the managing Agent of the leasehold flats and townhouses which have been built on and occupy the Relevant Land and has not demonstrated any legal standing to form a contract with the drivers of vehicles parking on the Relevant Land.

Loadsofchildren123

part 3 of defence
21. The Claimant has no right to control parking by tenants who rent properties on the Relevant Land from private landlords and who are entitled (along with their visitors) by their tenancy agreements to park there, regardless of the terms of the Agreement (tenancy agreements being supreme to any later contradictory agreements between a managing agent/landowner and a third party such as a parking company). A sample tenancy agreement is attached hereto. If the terms of the Agreement are unenforceable against residents who park on the Relevant Land then it cannot be enforceable against other third parties such as their visitors. There is no evidence that the driver, who the Claimant concedes was parked with a permit displayed in the windscreen of his/hercar (whether obscured or not) was not parked without the consent of a resident, which right is vested in them by virtue of their lease/tenancy. Indeed, a presumption can be drawn from the permit (whether validly displayed or not) that the driver was parking with the consent, and at the invitation of, a resident/tenant.

22. Even if a valid contract exists, the parking charges sought amount to a penalty which is unenforceable and is an unfair term contrary to the Consumer Rights Act 2015.

23. In any event, it appears from the photographs appended to the Claimant’s Statement that the driver of the vehicle did comply with the requirements of the signage to display a valid permit and did not therefore breach any contract which may have been created. The Claimant admits in its Statement that a permit was displayed, but asserts that it was invalidly displayed because it was “obscured”. The photographs clearly show what appears to be a permit and do not show that it was obscured. The Defendant puts the Claimant to full proof thereof.

Liability as Keeper

24. To be liable as the “Keeper” of a vehicle under paragraph 4(1) of Schedule 4 to the Protection of Freedoms Act 2012 (“the Act” and “the Schedule” respectively), paragraph 4(2)of the Schedule clearly states that this is only if each of the four conditions set out in paragraphs 5, 6, 11 and 12 of the Schedule have been complied with. The Claimant has failed to comply with those conditions, as set out below. Having failed to comply with the conditions, there is no legal basis whatsoever to enforce the parking charge against the Defendant as the vehicle’s registered keeper. There is no other basis, at common law or by statute, for the Defendant to be held liable for the parking charges which are the subject matter of this Claim.

25. The four conditions are as follows:

25.1 First Condition: Paragraph 5 (1) (a): the Creditor (ie the Claimant) must firstly be entitled to enforce the charge against the driver, but cannot do so because he does not know his identity/address.
The Claimant has not shown that it is entitled to do so:
i. it has not shown that any contract was entered into between it and the driver or what its terms were. This is because there is no evidence what signs were displayed, where, what prominence was given to them, what size they were, what wording appeared on them and whether this was legible or obvious to motorists entering the Relevant Land or parking where the vehicle is alleged to have been parked;
ii. it has not shown that the wording used was sufficient to have created a contract with the driver;
iii. in any event, the Claimant does not appear to be a party to the Agreement, and even if it is, the Agreement does not grant it the right to issue or pursue legal proceedings to recover any parking charges (and no such right can be implied);
iv. the Agreement states that the parking operator (which for the avoidance of doubt the Defendant denies is the Claimant) will issue parking charges to vehicles which the “Client” has informed them are parked without authority. It does not give any authority to issue parking charges to vehicles which it is not informed are parked without authority. There is no evidence that such a report was made by the other party to the Agreement.
It is therefore denied that the Claimant has any right to enforce the charge against the driver because the Claimant has not satisfied this condition.

25.2 Second Condition: Paragraph 6: the Creditor must have given a valid Notice to Driver followed by a valid Notice to Keeper.
It is denied that the Notice to Driver is valid. This is because:
25.2.1 it fails to comply with paragraph 7(b) of the Schedule because it does not provide sufficient or any information as to how the charges arose and the circumstances in which they did so, and the facts which make those charges payable);
25.2.2 it fails to comply with paragraph 7(d) of the Schedule because it does not provide details of the right to an independent appeal or how to apply for one.
Pursuant to paragraph 6, if the Notice to Driver is not valid pursuant to paragraph 7, then neither can the Notice to Keeper be valid. The Notice to Driver is not valid. In any event, even if the Notice to Driver is complaint with the Act, the Notice to Keeper is not valid, because it does not comply with several aspects of paragraph 8 of the Schedule:
25.2.3 Paragraph 8 (2) (b): the Notice must “describe [the] charges, the circumstances in which the requirement [to pay them] arose…and the other facts that made those charges payable”.
The Claimant has breached this requirement because the Notice fails to provide adequate, or any, information about this. It simply says that the vehicle “was parked in a manner where the driver attracted a parking charge as brought to the driver’s attention via signage and agreed to by the driver when the vehicle was parked” – there is no mention of what the signage was, what it said, or the basis upon which the charge was payable (eg a contract or trespass, how that contract was formed, how the charge has been calculate and so on);
25.2.4 Paragraph 8 (2) (c): the Notice must specify the amount of unpaid parking charges. However, it does not. It states that the charges are £150, whereas the Notice to Driver states that they are £100 (disregarding the discount offered for early payment).
25.2.5 Paragraph 8 (2) (g): the keeper should be notified of the arrangements for the resolution of complaints or disputes. However, the Notice contains no information about the right to appeal, or to whom (the Defendant did not understand at the time, but does now, that he could have appealed to the Claimant’s professional body, or to the independent parking appeals service, POPLA – this opportunity has now been denied to him).
25.2.6 Paragraph 8 (5): there is a strict timetable for service of the Notice. It should have been received by him within 56 days of the Notice to Driver (within 28 days of an initial period of 28 days following the Notice to Driver). In this case, the Notice should have been received by 29 December 2015 (the next working day after the 56 days ended on 26 December). However, it was not posted until 11 February 2016 – paragraph 8(6) provides that it is deemed delivered two working days later, ie 15 February 2016. This is some 48 days out of time under the deadline set out in paragraph 8(5) of the Schedule. To have reached the Defendant within the deadline, it should have been posted on 23 December 2015 (two working days before 29 December, taking into account the intervening bank holidays and weekend).
It is therefore denied that the Claimant has any right to enforce the charge against the driver because the Claimant has not satisfied this condition.

25.3 Third Condition: Paragraph 11: the Creditor must apply for the keeper’s details within “the relevant period”.
It is not clear whether this was done and the Claimant is put to full proof thereof. The “relevant period” is during the 28 days following 28 days after the Notice to Driver was given. The Defendant has asked the Claimant’s solicitors twice for evidence of the request but it has not replied.
It is therefore denied that the Claimant has any right to enforce the charge against the driver because the Claimant has not satisfied this condition.

25.4 Fourth condition: Paragraph 12: any regulations must have been complied with.
In the absence of regulations have been issued by the Secretary of State pursuant to paragraph 10 of the Schedule, the regulations issued by the professional body governing the relevant private parking company are to be treated as binding pursuant to paragraphs 10 and 12 of the Schedule (this was established by the case of ParkingEye v Beavis referred to below). The Claimant is a member of the IPC and has breached its code of conduct in several respects. Therefore it has not complied with regulations for the purposes of paragraph 12. The Claimant has breached the Code in many respects, as follows:
25.4.4 “Operators are required by the DVLA to be a member of an Accredited Trade Organisation in order to obtain keeper details”: it is not clear if they were at the time of the alleged parking on 31 October 2015 and the Defendant puts the Claimant to full proof thereof;
25.4.5 “you should be able to demonstrate how such charges are calculated…as a genuine pre-estimate of loss” (paragraph 8, page 11 of the Code). There is no explanation of how the £100/£150 charge has been calculated with reference to actual loss;
25.4.6 Details of the internal complaints procedure should be provided on the Notice to Driver (paragraph 10.2);
25.4.7 “You must not imply that the registered keeper can be held responsible for the parking charge under [the Act] unless the relevant time limits within the Act have been met” (paragraph 1.3, Part C) – both the Notice to Keeper, the correspondence received afterwards, the Claim and the Claimant’s Statement clearly imply this, when the Claimant must know that it has not complied with the time limits set out in Paragraph 8 (5) of the Act;
25.4.8 The Notice to Keeper must, inter alia, describe “the means by which [the charges] were brought to the attention of the driver and any other facts which made the charges payable” (paragraph 3.1(f), Part C). At no stage (until the Claimant’s Statement was served) has the Claimant ever attempted to explain how the charges are payable, in spite of the Defendant having written twice asking them for this information;
25.4.9 The Notice to Keeper must also inform the keeper of “procedures offered by the Creditor for dealing informally with representations by the Keeper about the Notice or any matter contained in it; and the arrangement under which disputes or complaints may be referred by the keeper to the IPC” (paragraph 3.1(m), Part C). There is no such information contained in the Notice;
25.4.10 The Notice to Keeper must be served on the keeper “between day 29 and day 57 after the day the Notice to Driver is given (which is counted as day 1)” (paragraph 3.1(q), Part C). This mirrors the time limits set out in paragraph 8 of Schedule 4 to the Act. The Notice is dated 11 February 2016 and according to the Act it is deemed received two working days later - ie 15 February 2016. This is some 48 days outside of the time limit;
25.4.11 The Notice to Keeper must provide details of the Complaints Procedure by which the keeper can notify the Information Commissioner and the DVLA if they feel that their keeper details have been used inappropriately (paragraph 3.1(r), Part C). The Defendantwas not notified of his rights to make a formal complaint about thisand specifically reserves his position on whether there has been a breach of his rights under the Data Protection Act and whether he will issue a counterclaim or a separate claim;
25.4.12 Where no response to the Notice is received within 28 days notifying the Creditor of the identity of the driver, the Creditor should send a letter to the keeper confirming they are now liable, the time frame for payment and how to make payment (paragraph 6.1), and paragraph 6.3 provides that the keeper should be given a minimum of a further 14 days. Neither of these were done;
25.4.13 Signage: Part E of the code “prescribes the signage characteristics you must try to adhere to”. It provides that:
25.4.13.1 there should be clear signs at the entrance to the relevant land which should refer the driver of a vehicle to the signs inside which contain the full terms and conditions of parking on the land. The Defendant puts the Claimant to full proof of what signage was in place at the entrance on 31 October 2015: the current sign does not comply with this requirement because it simply states
“Notice to Residents
Car Park Management System is in operation on this site
Please ensure that you display your permit at all times”
25.4.13.2 the signage inside the land “must be such as to be obvious to the motorist”. The appropriate text size is to be “determined by a number of factors, such as [the sign’s] position, to whom it is aimed and information it needs to convey. Text should be of such a size and in a font that can be easily read having regard to the likely position of the motorist in relation to the sign”. The Defendant notes from the photographs attached to the Claimant’s Statement that the sign apparently relied upon is small (it appears to be A4 sized), and on the photograph it can be seen displayed next to at least two other signs. It is clear from its size that it cannot be easily read and that no special attention is drawn to it by its position, size and so on, and there is nothing distinguishing it from the other signs. The sign is so small and insignificant that the font/text used must have been very small and impossible to read from any distance. Indeed, it cannot be seen on the photographs what wording appears on it – and the Claimant is put to full proof thereof;
25.4.13.3 there should be “repeater signs” of a sufficient number displayed throughout the site “to ensure that any parking conditions are adequately bought to the attention of the motorist”. There is no evidence of whether other signs were displayed, where they were located, their size, the size of the text/font, what special attention was drawn to them, and so on, on the relevant date.
All that the Claimant has produced is the text of the sign it claims was displayed on the fence near to where the vehicle was allegedly parked at the time relied upon and a plan which is undated and unintelligible– however, the photographs are illegible because what purports to be the sign looks blank and the photographs do not show what the sign said, or that it was legible to a driver of a car parking there. They clearly show that no special attention was drawn to it. There is also no evidence at all that the sign displayed at the relevant time is the same as the one claimed, or that the plan was current as at 31 October 2015. The Defendant puts the Claimant to full proof of all these matters. The site plan produced by the Claimant (page 7 of the exhibit to the Claimant’s Statement) is a nonsense and it is impossible to understand what it is supposed to show. There is no evidence of where “repeater signs” were located, what they said and whether they were legible to anyone parking on the relevant land. There is no evidence of whether there was a clear sign at the entrance to the land. The Defendant refers to the wording of the sign currently at the entrance as set out above.

Compliance with all of the above matters is required by the Claimant’s own Code of Practice which has the status of “regulations” under paragraphs 10 and 12 of the Schedule.

It is therefore denied that the Claimant has any right to enforce the charge against the driver because the Claimant has not satisfied this condition.


26 The “charge” set out in the signage is £100, and this is the amount contained on the Notice to Driver dated 31 October 2015. The Notice to Keeper, however, states that the charge is £150. There is no explanation for the increase of £50, nor is there any basis for such additional charge. The Act provides that the Claimant may only recover a sum equal to the parking charge on the day before the Notice to Keeper was issued (namely £100). The addition of £50 appears to be an added cost with no qualification and is an attempt at double recovery, which is not permitted by the Act. Should any contract exist, and andshould the Notice to Keeper be valid, then the Claimant is only contractually able to claim £100 against the keeper (should the conditions required by the Protection of Freedoms Act 2012 have been met).

27 It is quite clear that the Notice to Keeper does not meet any or some of the conditions set out in Schedule 4. It cannot therefore be valid under the Act and the Claimant therefore has no right to pursue the Defendant in respect of the parking charges pursuant to paragraph 4(1) of Schedule 4 (and to that extent whether or not a contract existed at the relevant time is irrelevant). There is no cause of action against the keeper of the vehicle whatsoever.

Relevance of ParkingEye Ltd v Beavis

28 The Claim is distinguished from the facts in the case of ParkingEye Ltd v Beavis. In that case, it was agreed that there was a contract between the driver and the Claimant, formed by prominent signage at the entrance to a car park which formed a clear offer. The case turned on a unique set of facts regarding the location and interest of the landowner. Strict compliance with the Claimant’s Code of Practice was paramount. The Defendant was the driver of the vehicle. There was a free parking licence offered. There was a “legitimate interest” in the contract/parking charges being enforced so that visitors did not overstay the two hour free period in a retail park so as to ensure a turnover of visitors to the retail units, and a complex contractual arrangement. All of this together disengaged the “penalty rule”. None of those facts apply in this case and in respect of the Relevant Land: the Claimant has failed to follow its binding Code of Practice issued by the IPC; the Defendant was not the driver; it is not common ground that a contract was agreed; a contract cannot have been formed because the wording on the signage was inadequate, the signs were not clear or prominent, they were small and no attention was drawn to them; the commercial interest in ensuring a changeover of visitors to what was a retail site, and the requirement of the Claimant to meet its costs by recovering parking charges do not apply to this case. The penalty rule therefore applies to this case and the charges claimed are quite clearly a penalty and are not recoverable.

Loadsofchildren123

part 4
Breaches of the Civil Procedure Rules and Strikeout

29 The Defendant has written twice to the solicitors acting for the Claimant asking for information and documents to enable him to understand the Claim and to file a Defence to it. The Claimant has not replied. The Claimant is in breach of many aspects of the Civil Procedure Rules, both in respect of its pre-action conduct and in respect of the Claim which has been filed. These breaches have been set out in detail, yet the Claimant has taken no steps to remedy them. As pleaded, the Claim should be struck out and a punitive costs award made in favour of the Defendant. The Claimant’s breaches are serious and are as follows::
29.1 Practice Direction – Pre-Action Conduct and Protocols, paragraphs 3 and 6 (failure to explain the basis of the claim, and to produce core documents, so as to enable the Defendant to understand and deal with the claim in the pre-action phase);
29.2 CPR Rule 18: since issuing proceedings the Claimant has refused to answer requests for information and documents required by the Defendant to understand and deal with the Claim;
29.3 CPR Rules 7/16 (in particular 16.1(2)(a) and 16.4): the obligation to set out the detail of, and properly particularise, a Claim;
29.4 Practice Direction 16, paragraphs 7.3(1) and (2): the obligation to provide, with the Claim, a copy of any contract relied upon, or its general terms and conditions;


30 The Claimant has thereby denied the Defendant a fair chance to defend the Claim in an informed way. The Claim is not coherent. It is a “cut and paste” claim and the Claimant’s solicitors are well known for being a serial issuer of these types of generic “roboclaims”, with no due diligence, no scrutiny of details nor even basic checks that there is a true cause of action. The Claimant is using the small claims track of this court as a form of aggressive, automated debt collection and the court should not support it. HMCTS has identified over 1000 similar poorly produced claims and there are many examples of them being struck out under CPR 3.4 – the Defendant will rely on these cases at the final hearing in seeking an order that the Claim be struck out. The Claimant’s solicitors are believed to be the subject of an SRA investigation into their professional conduct because of the large number of defective claims they are issuing and pursuing – their conduct is at best disingenuous and disrespectful of the court, at worst fraudulent. The Claimant’s conduct and that of its solicitor is vexatious and unreasonable. The Defendant will seek a punitive costs order against the Claimant and/or a wasted costs order against its solicitors.

Data protection

31 At the time of the alleged parking (31 October 2015) the Claimant was not a member of IPC, its professional body (the IPC website shows that it joined only on 18 November 2015). There is no evidence that the driver, whom the Claimant concedes was parked with a permit displayed in his/her windscreen (whether obscured or not) was clearly parked with the consent of a resident, a right vested in them by virtue of their lease/tenancy. For many other reasons (set out above) the parking charge which is the subject of these proceedings is invalid. The Claimant therefore had no right to request the keeper’s details from the DVLA and to use them, and has breached the Defendant’s rights under the Data Protection Act by doing both. Vidal-Hall v Google Inc [2014] EWHC 13 (QB) is authority that misuse of personal data is a tort. Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 is authority that a reasonable sum of compensation would be £750. The Defendant reserves his rights in respect of these matters.