PPC Defence

mateypeep

Hello

Edited op, I have a draft defence which I would like feedback on, I have posted over on the PPoo but they seem rather busy and I have yet had no response to my draft defence so I am here to ask for a bit of help.

Having read stickies and other defences and taken some suggestions I think I still need assistance with the defence and some wording, below is my background, defence draft and some excerpts from the PPoo thread.

Appreciate any help and suggestions thank you.

Fruitcake

I think it would be better if you could copy and paste your defence here so people don't have to flit between the two sites. Also it would help to have the background explained here as well.
Not everyone here is registered with the poo as well.

mateypeep

As a RK of a vehicle I received a letter from CEL last year, I am certain it wasnt a NTK and more of a debt letter stating I as a RK owe them money for a car park fail to pay / overstay breach of terms and conditions. I don't have that letter as it was destroyed in a flood, it also states the breach on another letter from the solicitor.

I received letters from ZZPS x2 and Wright Hassall solicitors all demanding money and threatening legal action etc. I know now from reading this could have been defeated most likely at POPLA.
The car park was covered byANPR, given the passage of time I cannot confirm or deny who was driving, I cannot confirm or deny if payment was or wasn't made.

I have since discovered who the landowner is and the fact the land could be covered by byelaws which might take precedent but I am vague on the law on this.

I have since received NCC forms and acknowledged the serving of them giving extra time which runs out next week. I have received a schedule of information and what is supposed to be some POC but they are as sparse as the POC on the NCC form.

I have also had confirmation from the DVLA of when the PPC applied for my details as RK 26 days after offence date.

I am also questioning the ANPR with regard to double dipping etc which I have read about but not sure how to do or if this is a difficult and messy topic to bring up.

If there is anything I haven't covered or you want to ask please do so as I will probably have missed something.

mateypeep

Draft Defence


I am **** the defendant in this matter and registered keeper of vehicle ***. I currently reside at ****
I deny liability for the entirety of the claim for each and every one of the following reasons of which any could be found fatal to the claimants case.

1. This Claimant has not complied with pre-court protocol:
(a) The Claim Form issued on the xxxxxxxxxxxx was not correctly filed under the practice direction as it was not signed by any person but signed by “The Legal Team”.
(b) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has initially no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.
© The Particulars of the Claim do not give any reason why the Claimant requires a payment other than that it results from the Parking Terms and Conditions on the signage.
(d) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
(e) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information. The covering letter merely contains a supposed PCN number with no contravention nor photographs of the vehicle in question given that ANPR is mentioned in the Claimants case..
(f) The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has failed to disclose any clear cause of action in the Claim Form issued on xxxx , and the vague Particulars of Claim and schedule of information disclose no clear cause of action either.

2. Proof of Contract
(a) ) I put the Claimant to proof to provide a contract that exists between Civil Enforcement and the landowner which gives the claimant permission to pursue claims for and on the landowners behalf. It is believed Civil Enforcement do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

3. POFA 2012 Breach.
I put the Claimant to strict proof that it issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold the me the keeper liable under the strict ‘keeper liability provisions’
(a) In the annual POPLA report in 2015 the lead adjudicator Henry Greenslade an eminent barrister and parking law expert explained that there is no lawful presumption that a keeper was the driver and no adverse conclusions can be drawn from a keeper exercising their right to handle and defend an unfair parking charge themselves, rather than name the driver.
(b) If the Claimant is proven to have issued a compliant notice under Schedule 4 of the Protection of Freedoms Act 2012.''This particular site fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the Operator to pursue this matter with myself (the registered keeper).
The Operator would have issued a defective Notice citing an Act which does not apply at this particular site, to attempt to claim an unenforceable charge from the keeper (myself). No keeper liability is likely to apply at all, due to the xxxxxxxx Bylaws taking precedence, and rendering this land outwith POFA and outwith 'registered keeper liability'.

For this Operator to claim that they would have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Bylaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. Such land is generally not 'relevant land' under the definition within POFA and if the Operator contends otherwise they will need to show POPLA contemporaneous and compelling documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply around this xxxxxx.''


4. The Defendant is in no position to confirm or deny the Claimant’s car park entry/exit timings. The Claimant has pointed out in para 2 of the particulars of claim "Automatic number plate recognition (ANPR) is used for entry/exit times of the car park, the Claimant has not provided any photographic date & time stamped evidence of the vehicle in the detailed particulars.
(a) The Claimant is reliant on the use of ANPR at the car park in question, ANPR (unless loaded with certain software) provides a first in last out basis for recording and is questionable under certain circumstances such as the following " if a vehicle enters a Car Park covered by ANPR for example at 10:00am and exits say at 10:10am as a parking space cannot be found or none has become available within any grace period but then returns say 20 minutes later and occupies a space and leaves say at 16:00pm some ANPR would only ever use the first and last number plate of entry therefore making any driver / registered keeper liable for a penalty or number of penalties even if there was no overstay of any grace / parking period".
• I put the Claimant to proof that the ANPR system it relies on was installed with such software to prevent the aforementioned flaws that ANPR has on or before the date in question of the alleged offence

• I put the Claimant to proof that no fee was paid at the Car Park in question due to parking not occurring and on the day in question the driver did not breach any overstay

• I put the Claimant to proof it can provide evidence that the vehicle in question did actually park at the car park in question therefore breaching any terms or conditions that were applicable only to parking.

5. The Defendant notes that the Claimant also intends to rely on Parking Eye v Beavis to substantiate its claim against me. In the Beavis case it was a free car park, with turnover required and a deterrent needed to stop commuters parking. As per the Claimant, this is a paid car park and as long as the amount was paid, the driver can stay. Since there’s no substantial commercial justification of the turnover requirement, the Penalty rule would have remained engaged. This can only be an unconscionable penalty and therefore not allowed under England and Wales law. Defendant would like to quote the specifics from Parking Eye v Beavis:

QUOTE:
“46. The terms of use of the car park need, therefore, to provide a dis-incentive to drivers which will tend to make them comply with the two-hour limit, that is afforded by the parking charge of £85. It would not be afforded by a system of imposing a rate per hour according to the time overstayed, unless that rate were also substantial, and well above what might be regarded as a market rate for the elapsed time, even if the market rate were in some way adjusted to take account of the benefit to the driver of the first two hours being free."

“47. It appears to me that the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is a disincentive, or deterrent, against overstaying. When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavored to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”


6. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a license to park free. None of this applies in this material case as the car park in the Beavis case was not a pay to park.
(a) Even if the Claimant did have the capacity to form a contract, it would be void under the Unfair Terms in Consumer Contracts Regulations
(b) 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 Unfair Terms in Consumer Contract Regulations 1999. 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.

© The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

(d) The charge is an unenforceable penalty, neither based upon a genuine pre-estimate of loss nor any commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

7. The Claimant has in point 6 of the particulars of claim stated "the defendant breached the terms and conditions of the site and is such liable to pay the Claimant the amounts set out in the attached schedule of information". The Claimant has chosen to hold the keeper liable for the drivers action and as such the keeper has no responsibility to the Claimant if he was not the driver, Given the passage of time, I can neither confirm or deny the name of the driver on the day.

(a) the Claimant has not explained how the claim escalated to £xxxxx, if the Claimant is adding this as cost of its in-house administration, these cannot be recovered as they are staff performing the task that they have been employed for and essential to the claimant's business plan. If in the alternative the Claimant states that these are the cost of a contracted debt collector, the Defendant is sceptical that the claimant paid £xxxx to recover £xxxxxx, win or lose and that the Claimant may have passed the case to a debt collector to inflate the cost of the claim.
The Defendant puts the Claimant to proof that the sum of the Claimants legal costs were invoiced and paid. The Defendant has the reasonable belief that the solicitor costs of £50 were not incurred and the Claimant has artificially inflated the amount of the claim.



The Defendant has the reasonable belief that the Claimant is abusing the court process and wasting valuable court time in an already heavily loaded system by using the threat of action to alarm the Defendant into making a payment that is not owed by the Defendant.

The Defendant has become 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.

In the alternative, the Defendant is willing for the matter to be decided by POPLA (Parking on Private Land Appeals) which will decide the dispute and limits any further costs to this claimant to £27, with
no legal costs. This is the bespoke ADR for BPA members, is available at any time (not just the first 28 days) and has been used to settle private parking court claims on multiple occasions even after proceedings have commenced. POPLA has not been undertaken in this case nor was it mentioned in the recent sparse communications from this Claimant.
The Defendant invites the Court to use its discretion to make such an order, if not striking out this claim.

Coupon-mad

Bumping this to be seen.

mateypeep

Also stupidly don't know why I didn't do this before but I have now looked up the car park in question on Street View, It seems the signage could be missing key information on initial entrance to the site, there seems to be apparent resident and visitor bays. I can post images if req?

Coupon-mad

Yes, show us - you may have to break the link (e.g. change http to hxxp, or put gaps into the URL).

Fruitcake

mateypeep wrote: »

Also stupidly don't know why I didn't do this before but I have now looked up the car park in question on Street View, It seems the signage could be missing key information on initial entrance to the site, there seems to be apparent resident and visitor bays. I can post images if req?

Images will help, but as a NEWBIE you can't post links.

So, upload them to a web hosting site then post the URL here but change http to hxxp. Someone here will then change it to a live link.

Don't use an account in your real name, and redact any personal information if you want to post pics or docs from the scammers.

mateypeep

Hello

I have uploaded link addresses as directed, contains pics of CP signage from Street view and the documentation I have been sent as RK.

CP photos are in order as entering the CP some are not facing directly straight and are either to the left or right of field of vision, I can clarify if req

I can post the link to the street view if req, what i find unusual is that if its a private CP why did street view cover it as I know of other roads and areas not covered by street view. Thanks

hxxps://ibb.co/nnRSQa
hxxps://ibb.co/iZm5BF
hxxps://ibb.co/iMjgka
hxxps://ibb.co/j8okBF
hxxps://ibb.co/cpkAdv
hxxps://ibb.co/bKfbJv
hxxps://ibb.co/gDdVdv
hxxps://ibb.co/dd87Qa
hxxps://ibb.co/kaZQBF
hxxps://ibb.co/hv9QBF
hxxps://ibb.co/gAdwJv
hxxps://ibb.co/gfKgka
hxxps://ibb.co/dcfAdv
hxxps://ibb.co/ent7Qa

System

Could you clarify the following

1. At 3 you say the ticket was from CEL
2. At 9 you say the "CP" signage and then show pics of ParkingEye.

Which name is on the claim form?

mateypeep

The claim is CEL v me there are pictures of the claim form in the images I have listed links to images of the paprwork which show this. The signage is correct as that is all what is in the car park.

I can list a street view link to the car park and you can see it all as the street view images are from after the event of the parking charge notice. Are the images clear enough? I can take some more?

Would have replied more sooner but my boiler has given up so time has been taken up trying to sort it out