PPC Defence

mateypeep

cont'd



9. The Claimant states that the claim results from a contract with the Defendant. The Defendant denies
that he would have agreed to pay the original demand of £100 to perform the alleged but
undisclosed conduct in a paid car park and submits that no motorist would agree to such a contract.
According to the statement of truth the sum claimed is £200.00 as due on 00/00/2016 which far
exceeds the £100 the signage states.

The claimant is claiming interest at 8% and I would respectfully ask of the following to be considered should the claim be allowed.
This claimant has sent the sent the alleged debt on a journey to greatly inflate the costs of the claim and then apply to the courts adding interest at 8% which in the economic situation of the past few years having seen historical low interest rates is of an exceptional high rate. Therefore this would seem to be of reward for the claimant rather than to compensate for any supposed loss and \i would respectfully ask the interest rate in finding for the claimant be reduced to the courts discretion.
The amount of interest calculated is incorrect as the sum of £200.00 was not the balance due on the 00/00/2016 (date of alleged offence) and thus has been applied incorrectly. The Claimant has not explained how the claim then escalated to £300.00, 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 would have paid more than £100 to recover £100, win or lose and that the Claimant may have passed the case to a debt collector to inflate the cost of the claim.
The court claim form states the amount owed on the due date of 00/00/2016 was £200.00 which is
greatly in excess of the charges deemed acceptable which constitutes an unlawful penalty. The
signage at the car park states a charge of £100 (which is also in excess of the £85 in ParkingEye v
Beavis). The amount claimed could not of possibly been due on 00/00/2016 as if paid as quoted by
the sign £100 at a 40% discount it would have been £60.

No statement of value to back up the amounts claimed has been issued in the particulars of claim to
demonstrate how the claimed amounts were calculated and to detail a statement with any additional
fee’s or charges incurred and from which date they were incurred. This shows the particulars of
claim to be untrue as their original Parking Charge Notice will prove.

No amounts could possibly be owed on 00/00/2016 by the defendant as no parking charges had
been issued at this point due to it not being possible with them using ANPR technology and needing
to contact and await response from the DVLA before issuing the PCN. This shows the particulars of
claim and statement of truth to be incorrect.

The claimants claim for contractual costs is an underhanded attempt to usurp the small claims track
cost restraints and should be rejected. The claimant is put to proof of entitlement thereof.


The Defendant 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 Operator’s intention was not to offer a genuine contract to park at that price 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).




10. The claimant has not provided enough information to enable the defendant to fight this claim. The
defendant requires to see what alleged contract was broken (i.e. the signage), also the Notice to
Keeper sent as it is the defendant’s submission that any contract was unfair and unsupported by
Consumer law.

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.

mateypeep

Not sure if I have overdone POFA, should Beavis be used as a comparison? The signage has Star park displayed on the foot but the enforcement by cel is written in the small print, does this make any difference?

Coupon-mad

I would say remove the repetition (e.g. twice you suggest POPLA, only do that once. And a few times you repeat stuff about the £100 inflating to £200 and that no sum was due on 00/00/16. Only say that once).

And remove stuff about the UTCCRs because they were absorbed into the Consumer Rights Act in 2015 and the Aziz case was kicked into touch in the Beavis case, so don't try that either. So remove this:

(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.

Finally I would put more paragraph numbers in, once you have weeded out your repetition. Each paragraph should be short and snappy and have a number, or break similar sections into divided numbering, so there would be paragraph 10.1, then 10.2, then 10.3 if you had three things to say on the same subject.

You need to end with a statement of truth and sign and date it, and make sure it is in Times New Roman, 1.5 line-spaced, with the usual headings at the top as shown in the examples under 'Small Claim?' in the NEWBIES thread.

Email it as a PDF (no evidence is attached yet at all, that comes later) to:

ccbcaq@hmcts.gsi.gov.uk

and then also post to:

County Court Business Centre
St. Katharine’s House
21-27 St. Katharine’s Street
Northampton
Northamptonshire
NN1 2LH

I would do both, making sure that the claim number is in the subject line of the email (with the word 'defence' as well) and that the claim number is in a header or footer on every page of the defence, which you must securely staple - not loosely paper-clip - together.

Make sure it is signed & dated. IMHO, even the emailed version needs to be a signed version, so a scan of the real thing showing the signature & date.

mateypeep

Thanks CM, good to have a second pair of eyes on it.