County Court Claim AM Parking Services Ltd

JimmyChan

Here is my final defence and counter claim:

Preliminary Matters

1. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed, the particulars of the claim are not clear and concise as is required by CPR 16.4 1(a).
2. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice A7.1 which says that If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.
3. The Claimant has not complied with the pre-court protocol:
(a) When requested for concise details of the claim (in line with Para 6(a) Para 6(c)), such as a specific location, a contract with the land owner and how the claimed amount had been arrived at, they either ignored the request or stated it would only be provided in their clients witness statement if the matter went to court.
(b) When requested that we consider using ADR, as Para 8 suggests, by using the claimants own Trade Association’s recommended ADR (Parking on Private Land Appeals) it was dismissed with no satisfactory answer. Due to the above I would refer the court to Para 11 & 14(c) on the unreasonableness of dismissing ADR.
(c) I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process.
4. On the 20/09/16 a similar, poorly pleaded parking charge claim from Gladstones was struck out by DJ Cross of St Albans County Court without a hearing, due to their particulars being ‘‘incoherent’’, failing to comply with CPR. 16.4, ‘‘providing no facts that could give rise to any apparent claim in law.’’
5. Further, on 27/07/16 DJ Anson sitting at Preston County Court ruled that Gladstones' PoC were deficient. He ordered the Claimant in that case to file new particulars which they failed to do, so the court confirmed that the claim be struck out.
6. I have an email from the Managing Agent for the private land the parking charge was issued on which states “I can confirm that we were not in touch with them nor would we get involved with parking” which shows they have no standing in order to bring a claim.

On the basis of the above, I request the court strike out the claim for want of a cause of action.

Defence

My name is JimmyChan , the defendant in this claim.

It is admitted that the defendant was the registered keeper of the vehicle noted at the date of alleged breach. However, the claimant has no cause of action against the defendant on the following grounds:-

1. Notwithstanding that the claimant claims no right to pursue the defendant as the registered keeper under The Protection of Freedoms Act 2012 (PoFA 2012); the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if they cannot identify the driver.
2. It is denied that the Claimant served the required documents with statutory wording as prescribed under the POFA and as such, there can be no keeper liability in any event.
3. The Claimant alleges the driver breached “the terms of parking” but no terms are given nor is any valid breach established.
4. The place of the alleged breach is given as “land at Coriander Drive Maidstone Kent”, there are many registered parcels of land in and around Coriander Drive as well as registered leaseholds on parts of these parcels of land, therefore strict proof is required as to the exact site of the breach.
5. AM Parking Services Ltd are not the lawful occupier of any land around Coriander Drive. 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, I have reasonable belief that they do not have authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
6. The Defendant owned at the time of the alleged breach the registered leasehold for one of the above-mentioned parcels of land. Which included a parking space as part of the property which had been demised to the Defendant.
7. The leasehold held by the Defendant at the time of the alleged breach, with no amendments mentions no terms which must be followed in order to park on the leased section of land. Nor does it mention the Claimants authority to operate a parking scheme on the leased section of land.
8. If it does transpire that the claimant is entitled to issue charges on the private land, certain parking spaces do not and cannot include spaces which are covered under the leases without specific authority being proved to be held from the owners of leases for each of those spaces.
9. At no point has the defendant authorised the Claimant to charge for use of their parking space, nor to operate in any way in the space, or to carry out court proceedings in their own name.
10. Authorities to support my defence include but are not limited to the (higher court level) Appeal case heard at Oxford County Court by Senior Circuit Judge Charles Harris QC, in Jopson v Homeguard [2016] B9GF0A9E. Similar Small Claim decisions in 2016 include Pace v Mr N C6GF14F0 and Link Parking v Ms P - C7GF50J7. All three cases were brought by Gladstones for parking operators (including the original Jopson claim) and in these cases it was found that the parking company could not override residents’ existing rights by requiring a permit to park and that the signs were of no consequence due to the primacy of contract enjoyed by the Defendants.
11. This car park can be fully distinguished from the details, facts and findings in ParkingEye Limited v Beavis [2015] UKSC 67 (the Beavis case). This location is not a retail site, there is/was no agreed contract between Defendant and Claimant, there is no identified driver and nor are there any comparable 'legitimate interests' nor complex contractual arrangements to disengage the penalty rule.
12. Coriander Drive has been adopted by Kent County Council and is marked as a “Publicly Maintainable Highway” in the Kent County Council Highways Gazetteer under the Unique Street Reference Number of 24202170. Signs have been placed alongside the public road stating it is a private road, this makes it impossible to identify where the public highway ends and where the private land starts (and therefore there is no way to know what land the “terms” apply).
13. PoFA 2012 only allows the recovery of the parking charge stated on the Notice to Keeper and not court fees, damages, indemnity costs or legal representative’s costs.
14. The Claimant has at no time provided an explanation how the sum claimed has been calculated, the conduct that gave rise to it or explained the ‘indemnity’ or legal costs which appear to have been plucked from thin air and do not appear on the signage. This is an attempt at double recovery, which the POFA specifically disallows. In addition, CPR 27.14 does not permit these to be recovered in the Small Claims Court.
15. No contract, terms and conditions or sum payable were ever accepted by any driver.
16. The signs quiet clearly state that there is "No Unauthorised Parking," the defendant held a lease at the time so any parking on this land was with authority.
17. The claimant’s notices attempt to make a forbidding offer, which isn’t an offer at all, therefore no contract exists.
18. If the driver was considered to infringe on this land, then only the Landowner can pursue a case under the tort of trespass, not this Claimant. Such a matter would be limited to the Landowner claiming a nominal sum, yet I am the rightful leaseholders with title.
19.The Defendant believes that his personal details have been obtained unlawfully by the Claimant and asks that the Court does not to assist the Claimant to benefit from a wrongdoing. (Ex turpi causa non oritur actio).

The facts stated in this defence are true, to the best of my knowledge and belief.

Counter Claim

1. The Defendant counterclaims the sum of £750.00 against the Claimant, as compensation for a material breach of the Data Protection Act 1988 (“DPA”).
2. The Claimant parking company had no lawful reason to retain or process my personal data, and by so doing they were in breach of the Second Data Principle, pursuant to Schedule 1 of the DPA, which states: “Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.”
3. Pursuant to s13 of the DPA: “Compensation for failure to comply with certain requirements”, the Act states at 13(1) that “An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage”.
4. I rely on two significant authorities for my counterclaim: Vidal-Hall v Google Inc [2015] EWCA Civ 311, and Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333. In Vidal-Hall, compensation was held to arise upon the fact of breach. In Halliday, the Court of Appeal held that a compensatory sum of up to £750 was deemed ‘appropriate and sufficient’.
5. Both of the above cases arose as a result of material breaches of the DPA and can be considered to provide binding precedents for my own situation. A DPA breach ruling has also been made recently in favour of a consumer, in a private parking ticket case by a District Judge at Liverpool County Court on 7 December 2016, in case no. C9DP2D6C: ‘VCS v Mr. M’.
6. No quantified loss is required to be proven since this is a clear breach under the tort of data misuse. As shown by the Court of Appeal authorities in Vidal-Hall and Halliday, no actual pecuniary loss sustained need govern the amount of the award in such cases so it seems reasonable to counterclaim a sum in excess of this Claimant’s unwarranted claim, without the sum of £750 being in any way excessive as compensation for my distress, given the circumstances.
7. My data was obtained from the Driver and Vehicle Licensing Agency (DVLA) under the guise of "reasonable causes" however the land the parking charge was issued had been whole demised to me under a registered lease. They had no authority to operate on this land and so therefore no reasonable causes to obtain my details from the DVLA. Section 55 of the DPA states is an offence to unlawfully procure personal information.

And the Defendant claims:
(a) damages, as claimed or alternatively, in such sums as the Court may find; and
(b) all court fees arising as a result of this counter-claim.
(c) all costs for travel/parking to attend court and loss of earnings/leave (either loss of earnings or ‘loss of leave’ being covered by 27.14.2(e))

A statement of costs will be brought to the court hearing. Should the Claimant discontinue their own claim, this counterclaim still stands.

The Defendant believes the facts stated in this counterclaim are true.

Loadsofchildren123

OP, I'm a bit behind and commenting on your defence.


1. BPA CoP - you've quoted 7.1. You should also quote 7.2 I think - because they should be producing that as well. The current version of the CoP came into force in October 2015. The previous version actually includes wording in 7.1 that mirrors 7.2 (landowner contracts should specifically authorise court proceedings) - if you go onto BPA website and click on "Knowledge" then "CoP" it gives you links to all the previous versions. I'd argue that they should have been complying with the CoP in place at the time of the ticket, not just the current one.


2. Ex dolo malo non oritur actio - if they were ticketing on the adopted highway, there must be an argument to say that they were trespassing on the highway because they had no lawful reason to be there, and the doctrine applies to both illegal and immoral acts (trespass isn't illegal but is a tort and therefore immoral). On my thread I posted a link to my Skeleton argument yesterday which explains the doctrine in some detail - I did crib much of it from other posters and other people's precedents, but this might save you time trawling other threads.


I don't get the MA/MC blaming the council - they are implying that the PPC is authorised by the council and nothing to do with them. Does the council know that it is being held out to residents that these cowboys are issuing tickets on behalf of the council, or sanctioned by the council? I think you should keep the pressure on the MA/MC and consider applying to join them as a second defendant and making a claim against them. They have directly interfered with your rights by contracting with the PPC, and tried to avoid remedying this by misrepresenting to you that the PPC is somehow authorised by the council. You should be seeking an indemnity from them for any losses you incur, and claiming damages for interference with your right to quiet enjoyment and aiding and abetting a trespass on your parking space which belonged to you at the relevant time (for the trespass you'd need to prove at least one ticket was given in your space). You'd need to write them a letter before claim. The downside of all this is that you have to apply to join a party and the fee is £255 (apply on N244 which is easy to find on a google search) but you'd get this back if you won.


A poster called Acidmonkey has a thread going where he is joining the MC/MA as a party and counterclaiming and I've put a precedent on there for how it should be laid out.


You could keep this up your sleeve. File your defence/counterclaim against the claimant and keep up the pressure on the MA/MC by writing them a letter before claim and see if they will then assist you. In your LBC ask them for evidence of any contract with the PPC and evidence of their assertion that the PPC is somehow connected with, or even acting under the instruction of, the council. You are entitled to ask questions like these by the Practice Direction - Pre-Action Conduct and Protocols and they are obliged to answer them. Just the threat of being joined may do it. You can always apply later (when you would ask for an order that they are joined as a party and for leave to amend your defence to add a counterclaim against them).

JimmyChan

BPA CoP - you've quoted 7.1. You should also quote 7.2

I have added this in thanks.

Ex dolo malo non oritur actio - if they were ticketing on the adopted highway

I have checked my records and I think for this PCN I was parked on my own property, so I am not going to bring up the ticketing on the public highway. Other than to make the point that it is confusing to work out what is and isn't the public highway.

I don't get the MA/MC blaming the council

The only land which they manage which can be parked on, are the residents parking spaces which have all be demised. Therefore I think the MA are correct in their assumption that the council deals with parking in the area. I don't think they know that the PPC have placed signs up nor do they know they are operating on their land. I think this is where the confusion has come from.

You could keep this up your sleeve.

This is what I am going to do, I am still talking to the MA but time is against me, I need to file this all by Tuesday so will be keeping this just between AM Parking, Gladstones & my self

Loadsofchildren123

Look at my Skeleton on my thread - the non oritor actio doctrine also applies to the signs - if, as I suspect, they don't have planning/advertising consent.


Check on your council planning portal if there has ever been a planning application for the signs and if not report it to the council and tell them that the PPC is relying on them to ticket people parked on the public highway. In my case there is no planning permission/advertisement consent (the signs come under the definition of an advertisement), although neither is it public highway, and my local council makes you fill in a form to make a complaint - but they react very quickly, they were out inspecting the site within less than 24 hours. There's a whole section in my Skeleton dealing with why planning is required and why it's a criminal offence.


I still don't understand how the MA can wash their hands of this. Someone brought the PPC in and I very much doubt that the council did - it wouldn't have the power to bring in a PPC to patrol privately owned residents spaces and why would it bother to pay a PPC to patrol its roads? But if the council has engaged the PPC they will be able to tell you (I assume this would come under Highways). Ask them for a copy of any contract. If they are backwards in coming forwards, make a formal Freedom of Information Act request - they have to answer this within 21 days. Too late for your defence, but once you have the answer it can go in your witness statement.


If the council confirms this is nothing to do with them (and try and get them to do it in writing), challenge the MA again and write that LBC. If they continue to assert that it's the council and they have no agreement with the PPC get them to confirm that in writing. Again this can go in your statement.


The PPC, if engaged by the MA, is acting as the MA's agent and the MA is responsible for their actions in trespassing on your space and wrongfully issuing tickets on adopted highway. It's against the BPA CoP to hold yourself out as having statutory powers and I think in telling you it's all the council the MA is holding out that the PPC has some sort of statutory powers.


You need to pile the pressure on the MA. If they continue with the "it's nothing to do with us" line they should be accusing the PCC of trespass and threatening them with an injunction.

Loadsofchildren123

In Davey v UKPC MR Davey sued UKPC for trespass for placing tickets on his vehicle which was parked on his own land. He won the case and was awarded £150 damages for trespass and £1280.26 in costs.
http://parking-prankster.blogspot.co.uk/2016/11/residential-parking.html


I think you should add to your draft counterclaim another element - a claim for trespass. Claim damages, and if you are still living there (did I dream it or have you posted that you have just moved out, or am I thinking of another thread I've read this morning???) also claim an injunction prohibiting the PPC from entering onto your parking space again for any purpose.

Loadsofchildren123

https://www.dropbox.com/s/ybqnmy5v37ci3p1/SKELETON%20anonymised.docx?dl=0


link to my skeleton - its a bit long but the non oritor actio bit starts at para 25

JimmyChan

if you are still living there (did I dream it or have you posted that you have just moved out,

You didn't dream it, I don't live there any more, which is why of all the PCNs I have received this will be the only one which will have come back from the DVLA with a different address to the property on which the vehicle was parked and this is the only one they are pursuing to court.

I looked into trespass and figured there wasn't as strong a case as I hadn't got much of a paper trail telling them not to trespass. Especially when I compare my actions to some of the cases on this site I really did just appeal to the PPC & to POPLA.

Loadsofchildren123

You don't have to complain to someone that they are trespassing for it to be a trespass. But if they do it after you've complained then yes, theoretically it's worse and the damages would be greater.


There's a couple of new threads this morning, or reactivated old ones, with tenancies/leaseholds and interference with designated parking spaces, and I was finding it hard to keep track of which was which when I was in the middle of typing my post!


Are your lot BPA members? If so look at A2.4 of the CoP - they are OBLIGED (compliance is mandatory - see A4.1, 4.2, 6.1, 6.3 and 6.8) to know the law on, inter alia, trespass.


A2.4 provides:
All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses. Examples of relevant law and guidance within this sector are:
• contract law
• tort of trespass
• data protection law
• consumer protection law
• Protection of Freedoms Act 2012 (POFA), including Schedule 4 (included as Appendix C to the Code)
• DVLA Guidelines for Accredited Trade Associations
• equalities law.


I've added the emphasis.


If they are IPC members the CoP will have similar provisions.


sorry again if the typeface in my posts keeps changing, I've copied and pasted from another document.

JimmyChan

Ok will take a look tonight but doesn't a trespass claim need to be for a pecuniary loss?

Loadsofchildren123

You don't have to suffer a direct loss, no. But if you haven't suffered such loss the damages won't be anything to write home about. They got £150 in that other case. You'd have to say how much distress and aggro it caused you. I just think you might as well add it in.

And use it to shake up the MA who can't fob you off with the idea the council are responsible. Who let this lot into the complex? Not the council!!! (Is it gated?). PPCs just don't turn up out of the blue and start putting up signs and ticketing cars!

I just can't see a PPC being engaged by the council. They must have been engaged by the MA and, if anything, are exceeding their authority by ticketing cars on the adopted highway. I'm sure if you dig there will be a landowner/MA-PPC contract