Claim Form from ParkingEye received 16/3/17

miladm1067

I had a read through the forum and plucked out any relevant arguments. I just wanted to know if this is roughly what I can send them.


the County Court Business Centre
Claim Number: ___

Between:

Civil Enforcement Limited v ___

Defence!Statement

I am ___, the defendant in this matter and registered keeper of vehicle ___. I currently reside at ____.

I deny I am liable for the entirety of the claim for each of the following reasons:


The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.

1. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. The Claimant has not identified the driver.
Popla appeals Officer Henry Greenslade (Barrister, parking law expert and POPLA Lead Adjudicator in 2015) is quoted on the internet as saying “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver….Operators should never suggest anything of the sort….Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”

a) The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 (POFA) in order to hold the defendant responsible for the driver’s alleged breach.
b) b) The Claimant also failed to state that they do not know both the name of the driver and a current address for service for the driver as required by POFA, Schedule 4 9.2(e)
c) 4. The claimant has no locus standi to bring this case. Absent a contract or chain of contracts from the landowner to the claimant I have the reasonable belief that they do not have the authority to issue charges on this land in their own name.
d) ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name.
e) The Defendant also refers the Court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings. It follows therefore that if a debt exists, it is owed to the landowner, not the Claimant.
f)
g) 5. 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 B1.1
h)
i)
j) 6. The signage was inadequate to form a contract with the motorist.
k)
l) a) The signage on this site is inadequate to form a contract. It is barely legible. Part E, Schedule 1 of the Code of Practice of the British Parking Association (BPA) of which Parking Eye is a member, clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.”
m)
n) b) The sign fails because it must state what the ANPR data will be used for. This is an ICO breach.
o)
p) 8. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

My italics – it is clear that the legal process expects a signature with a name printed underneath, not a pro forma printed name.
As an example as to why this prevents me filing a full defence at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has not been provided to the Defendant.
I understand from extensive research that the claimant’s solicitors are serial abusers of the court process in this manner.

16. The Particulars of Claim fail to disclose the head or heads of action in which these proceedings are based.

17. The Defendant asks that the claimant is ordered 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 the Claimant is acting as agent or principal, together with a list of documents they will rely on in this matter






due to local knowledge and having inspected the signs at the, I am aware that whilst your client's signage is displayed at the material location, the terms are illegible from a driving seat. Moreover, the unremarkable boards placed sporadically by TPS is unclear as to which set of signs relate to which section of the car parking area. The signage is, therefore, incapable of creating any contractual liability on the part of any driver, as any purported contractual terms are void for uncertainty.





The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued .

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

Further, your client has adduced no evidence whatsoever as to the identities of the drivers at the material times. There was, of course, no requirement in law for me to respond to the NTKs in question, so any suggestion of failure on my part will be robustly defended. Indeed I view the continued - increasingly threatening - demands as harassment. Had TPS evidenced the driver(s) in their NTKs, I would have passed the purported 'PCNs' to those drivers, since these are not matters for which a registered keeper can be held liable in law. This position is entirely due to the choice of your client when drawing up a Notice to Keeper (NTK) document which does not in any way attempt to use nor rely upon the rights they might otherwise have been able to claim, under the Protection of Freedoms Act (the POFA) Schedule 4.

The listed separate 'parking charge notices' in which the facts seem to be fairly identical but all of the NTKs are matters for an identified driver only. I am not liable and cannot be lawfully assumed to have been the driver on each or any occasion. Should you attempt to rely upon the cases of Elliott v Loake (irrelevant criminal case) and or Combined Parking Solutions v AJH Films (irrelevant employee/employer commercial liability issue), you should be aware and fairly warned now, to advise your client that these have never been reported as persuasive or even applicable to any robustly-defended private parking case.

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed

Umkomaas

@miladm1067. Whose thread is this? Why are you here?

grayselegy

HI. @miladm1067 I think I've put all those relevant points in my Defence and I'm beyond that point now anyway. My witness statement is ready to go.

Anyway: I have today just received their Witness Pack, no surprises, except that they again enclose a map showing the positions of their signs - and photos of the signs which show those signs are NOT in the positions on the map. They've shot themselves in the foot ! My argument will include that they have been so slap dash they haven't even noticed that their own map contradicts their own photos - so what chance they have made a mistake with the ANPR evidence too?

QUESTION - Parking Eye covering letter states: "The Claimant will not be in attendance at the Hearing , in order to minimise costs that would then have to be sought from the other side. Attendance...will be through its agent from LPC Law. We request that the matter be decided in the presence of our advocate from LPC Law, and confirm our agreement that the matter can be decided in the absence of the claimant."
QUICK COMMENTS PLEASE? Can I reject the LPC Law advocate? Can I insist P.E. attend?

Thanks people. My Witness Statement must be in post tomorrow!!!

Coupon-mad

QUICK COMMENTS PLEASE? Can I reject the LPC Law advocate? Can I insist P.E. attend?

Nope and you don't want them to...search the forum for 'Rights of Audience BMPA text'. You will not regret it! It's a form of attack that can kill off their case on the day, if you are lucky.

grayselegy

Thanks for the above, I thought I'd read that somewhere, so I'll keep my powder dry on that one and see if the ambush works on the day !
OOOOO KKKK then....ready to go....posting the Witness Statement and documents now.
Many thanks everyone. I'll update thread after Court Date 4th Oct. (or earlier if they cave in !!).

grayselegy

One last thing, I read on a thread from here somewhere that a Justice admitted an appeal saying that although the Defendant's excuse was "unlikely" that was enough - unlikely did not mean impossible. Does anyone remember where that quote is, or can state the Case? Thanks...

Coupon-mad

I wouldn't suggest that your case is 'unlikely' to be true. I don't recall that case; it doesn't help.

You can simply say that the Claimant has not proved their case. The burden remains that of the Claimant to show, on the balance of probabilities, who was driving/what happened/that there was a contract that was readable that was agreed, that can give rise to £100 charge. They have failed.

grayselegy

Thanks, good point. OK, posting it now. Thanks so much everyone, I really feel like I have shot back a broadside they cannot have expected. Let's see....

grayselegy

Within TWO days of P.E. receiving my Witness Statement they have responded by offering me a £75 "take it or leave it" offer in full and final settlement (down from £175). I am chuckling. I have 14 days to accept it. I doubt I shall, as they obviously consider their case not strong enough to win at Court now....however, I shall let them stew a while and then call then and offer £25. Any comments?

Coupon-mad

No. It's a double dip case, you said this and you have evidence:

16. In support of my contention that I visited one of these shops once in the morning and again in the afternoon over one hour apart, Item 14 is my bank statement of the time, suitably redacted for privacy, showing two debits to Costa Coffee, one in the morning, the other in the afternoon.
17. I shall use Item 15. map of Weston Super Mare and surrounds, showing distance to Axbridge from the car park, to show I travelled some 45 minutes to my appointment and then the same back, meaning I did not return to the car park for at least and hour and a half.
18. I shall refer to my employer’s Office diary entry for the 6th October showing my appointments in and around Weston Super Mare that day, Item 16.
19. I shall refer to Item 17, a letter from my Employer confirming my appointment in Axbridge at around noon on the 6th Oct. as shown in the Diary above.
20. I shall refer to Item 18, a letter from the customer seen at around noon on Oct 6th in Axbridge proving my attendance there. Paras 16 to 20 above frame my additional argument that my car was not in the car park for the entire duration of the claimed 4 hours 2 minutes and that therefore their systems and personnel whether in error or by malice have made a mistake.

Email a reply back to the Enforcement Team, headed 'without prejudice, save as to costs'

Tell them your offer of settlement is for them to pay you £100 and cancel the PCN and vacate the hearing.

If they fail to do this within seven days, you will be attending the hearing with your evidence that the car left the car park and will be claiming your full ordinary costs, plus further costs pursuant to CPR 27.14(2)(g) for unreasonableness.

Should they discontinue without paying you £100 to resolve the dispute, you will immediately write to the Judge and claim the same.

Further, should they fail to send a remittance of £100 to resolve the dispute, once the case is won by you as defendant, you intend to pursue a claim against ParkingEye Ltd for data misuse/obtaining DVLA data with no reasonable cause, as a direct result of their negligence and failure of due diligence in their checks before issuing this unwarranted demand and following it with this extreme level of harassment. Such a claim would be for at least £500 including compensation for distress, or such sum as the court deems appropriate when considering a sum based upon ''Vidal Hall'' compensation.

Remind them the £100 offer for them to settle the dispute, is open for seven days, and that an accompanying apology, admitting their mistake, would be courteous because you intend to update your MP and their client, the landowner, as to the steps ParkingEye take at this stage.