PCN from ES Parking Enforcement

northernt01

Right so here is my draft defence, tried to remove as much as i could that i didn't feel is relevant, however, i may still have repeated myself in parts.

I will host the NTK on dropbox and attach this

Claxtome: in answer to your second question yes it did happen




IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

xxxxxx (Claimant)

-and-

xxxxxx (Defendant)


Preliminary matters.

1.
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 which says

1.1
If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
2.
The Defendant researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

3.
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 claim are not clear and concise as is required by CPR 16.4 1(a). The Claimant are known to be a serial issuer of generic claims similar to this one. HM Courts Service has identified over 1000 similar sparse claims. I believe the term for such behaviour is roboclaims and as such is against the public interest.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

3.1 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant

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

________________________________________
DEFENCE STATEMENT
________________________________________

1) It is admitted that the defendant, Mr XXXXXX XXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle.

(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 identity of the driver of the vehicle on the date in question has not been ascertained.
a) The Claimant did not identify the driver
b) 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 in order to hold the defendant responsible for the driver’s alleged breach.
c) The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage.
(3).
The claimant might argue that Elliott vs Loake is applicable in identifying the registered keeper as the driver. This will be refuted as the Claimant has adduced no evidence at all as to the identity of the driver and Elliott v Loake was a criminal case turning on specific facts and forensic evidence as to who was driving the vehicle on the day on question. There is no similarity to this claim.
3b. Case Reference: C8DP37F1, Stockport, Excel v Mr C

(4).
The Claimant has not complied with the pre-court protocol.
a) No initial information was sent to the Defendant for the following:
(i) Full particulars of the parking charges.
(ii) Who the party was that are contracted with ES Parking Enforcement ltd
(iii) The full legal identity of the landowner
(iv) A full copy of the contract with the landholder that demonstrated that ES Parking Enforcement ltd had their authority.
(v) If the charges were based on damages for breach of contract and if so to provide justification of this sum
(vi) If the charge was based on a contractually agreed sum for the provision of parking and If so to provide a valid VAT invoice for this 'service'.
b) I would 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, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.
(5).
ES Parking Enforcement Ltd is not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.
a) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
b) The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim. c) Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass. d). As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).

(6)
a) The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
b) The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

(7)
The signage was inadequate to form a contract with the motorist
a) There were no entrance signs at all to show that drivers were entering an area of 'parking enforcement' or 'private land'. This contravenes requirement Part E Schedule 1 of the IPC code of practice
b) The signage on this site is inadequate to form a contract. It is barely legible, making it difficult to read.
c) Wording of signage unclear and contradicting.ie tells you you’re not allowed to park without a permit, but gives no information of how or where to obtain one. Then goes to say if you do park you agree to their terms and risk a £100 charge, as such offering you a contract for something they’re strictly forbidding in the first place.
d) It is possible to drive into the carpark and park without seeing a sign at all due to the lack of signs and carpark layout, therefore in this instance it is imperative an entrance sign is in place to avoid any confusion.
under
Schedule 4 of POFA.
e) In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Parking Eye Limited v Beavis 2015 UKSC 67) this fails to meet the requirements of Schedule 4 of the POFA. f) Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis case, the Claimant offered no licence to park if ‘unauthorised’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

(7)
The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

(a) 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.

(8)
(a) The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a ‘local’ recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges of £25 to the original £100 with no evidence of how this extra charge has been calculated. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs.
Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
b) The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
c) The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
d) Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
e) The Claimant described the charge of £50.00 "legal fees" not "contractual costs".
CPR 27.14 does not permit these to be recovered in the Small Claims Court.

(9) The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis case. This site does not offer a free parking licence, nor is there any comparable 'legitimate interest' nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015. Whilst the Claimant withheld any photos of the signs on site, the Defendant contends these are illegible with terms hidden in small print, unlike the 'clear and prominent' signs which created a contract Mr Beavis was 'bound to have seen'.

(10) 6. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.
I believe the facts stated in this Defence are true.

northernt01

Signage, NTK, LBC and a response LBC attached:

https://www.dropbox.com/s/d1e0ajw4ft5ti3w/LBC%20Amended.jpg?dl=0&m=

https://www.dropbox.com/s/htbz9634zoo2v41/Signage.jpg?dl=0&m=

https://www.dropbox.com/s/4yjhem7pyb17ceh/NTK.jpg?dl=0&m=

https://www.dropbox.com/s/dx346q56r12gyz7/LBC%20Reply%201%20Edit.jpg?dl=0&m=

https://www.dropbox.com/s/86kenldvwuzzylk/LBC%20Reply%202.jpg?dl=0&m=

https://www.dropbox.com/s/o56yw03xxa6j6dp/LBC%20Reply%203.jpg?dl=0&m=

northernt01

Trying to bump this up to see if anyone could look over the defence and critique if possible
Any help would be much appreciated
Thanks

claxtome

I have had a look at your defence.
My comments/suggestions so far are:

b) 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 in order to hold the [STRIKE]defendant [/STRIKE] Keeper responsible for the driver’s alleged breach.

c) The Claimant's increasingly demanding letters failed to show evidence of any contravention or any clear/prominent signage.

There is a lot of duplication in the following:

(5) ES Parking Enforcement Ltd is not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.
a) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
b) The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim. c) Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass. d). As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).

c) The [STRIKE]W[/STRIKE]wording of signage unclear and contradicting. ie tells you you’re not allowed to park without a permit, but gives no information of how or where to obtain one. Then goes to say if you do park you agree to their terms and risk a £100 charge, as such offering you a contract for something they’re strictly forbidding in the first place.

You need 7 (f) to start on a new line.

(10) [STRIKE]6.[/STRIKE] The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

Unfortunately I can't use dropbox links at work so will look tonight to see if the NTK conforms to Schedule 4 of POFA - in terms of wording and timing.

Just seen you edited post #1 -> After how many days from the PCN did you received the NTK?

northernt01

claxtome wrote: »

I have had a look at your defence.
My comments/suggestions so far are:




There is a lot of duplication in the following:




You need 7 (f) to start on a new line.




Unfortunately I can't use dropbox links at work so will look tonight to see if the NTK conforms to Schedule 4 of POFA - in terms of wording and timing.

Just seen you edited post #1 -> After how many days from the PCN did you received the NTK?

Thanks for your response! i will amend the defence. I haven't fully proof read it so will do that tonight. I am still looking around at other defences to see if i can add anything further to mine.

The PCN was issued at the end of March and the NTK was received on the 11th May

claxtome

The PCN was issued at the end of March and the NTK was received on the 11th May

So it sounds like the NTK was received 28 - 56 days after offence.
(if so the timing of the NTK is as per Schedule 4 of POFA 2012)

I suggest you check the wording of the NTK as well according to Schedule 4 of POFA 2012 as the NTK I have received from ES was not worded correctly

northernt01

claxtome wrote: »

So it sounds like the NTK was received 28 - 56 days after offence.
(if so the timing of the NTK is as per Schedule 4 of POFA 2012)

I suggest you check the wording of the NTK as well according to Schedule 4 of POFA 2012 as the NTK I have received from ES was not worded correctly

The NTK was actually dated 7th June. so 72 days after the PCN was issued. How much difference does this make?

It looks like Gladstones have the date wrong too. in their response to my LBC response they said the NTK was sent to me on the 11th May but the NTK is dated 7th June. Not sure how significant this is?

claxtome

Not sure of significance of NTK being dated incorrectly when you received it on time.

northernt01

claxtome wrote: »

Not sure of significance of NTK being dated incorrectly when you received it on time.

I don't believe i did receive it on time. the original NTK was dated 7th June therefore placing it 72 days after the notice to driver issued 27/3.
This doesn't comply with section 8 para 4 and 5 of POFA

Gladstones response states they sent in on the 11th May, which doesn't match the date on the original NTK. they actually attached two copies of the NTK: one with the date of sending 07th June and the other with the 11th May

northernt01

I need to submit the defence by next Monday 6th. Can anyone suggest anything significant to add to the defence or remove?