Smart Parking ScS Claim defence, pls help!!

mr_sij

I am new to this forum, but I have done my research on here but in need of more specific advice regarding my defence

Back story:
Went to Matalan with a friend back in Nov 2016, spent about an hour plus in the store, we were unsure whether paying customers had to pay for parking. I now know you still have to pay and Matalan refunds you at check out if you spend £5 or more which i did. At the time I remember us asking the store assistant about parking and she said it's already included in the customer receipt.

Fast forward few months later I get a letter from debt collectors saying i missed the deadline to appeal, for some reason I didn't see an initial letter from Smart parking ltd till recently. I called DRP - debt collectors saying I am not paying as I was advised in the store I didn't have to (useless point - never call the debt collectors, now i know!)

I then did my research on here about ignoring all letters as they are spam but take action when court claim letter comes through or letter before court claim, but I wasn't too sure about the letter before court claim stage so I ignored that as well missing the opportunity to appeal. Also i now realised from research that I could have complained to Matalan but I didn't, I called the store today and the store manager says not much he could do with it being over 28 days - few catalogue of errors on my part, lessons learnt!

So long story short I have acknowledged service and now researching best line of defence for my case. I read about arguing keepers liability but not sure how to work this argument in my favour. Can I also argue being a paying customer, I wouldn't want this to be twisted to being the driver in court? I have proof from my bank statement to support this. Is there any further defence I could use to win this claim.

Thanks

Umkomaas

Who or what is/are SSE?

If this is a real court case, you will be one of Smart's first ever.

I understand that Matalan have started removing Smart Parking from their car parks, and this may be a similar revenge action we saw Civil Enforcement Ltd take against Co-op customers a few years ago when they were shown the door.

Have you read post #2 of the NEWBIES FAQ sticky which covers what you need to do to defend this?

mr_sij

I meant scs which is smart rents solicitor. Thanks for your reply and I'll read post #2 again

Fruitcake

Please confirm that you have had real court papers or MCOL from Smart Parking as opposed to a threatogramme from debt collectors.

You can post a redacted version of the correspondence here by uploading images to a webhosting site such as tinypic or photobucket, then post the URL here but change http to hxxp. Someone here will then change it back.

Coupon-mad

I think we've seen three. These Smart/Matalan ones bear the hallmarks of CEL 'revenge claims'.

Luckily, Smart NTKs bear the hallmarks of CEL PCNs - not POFA ones. No keeper liability as long as the defence (or any previous appeal) doesn't imply or name who was driving.

mr_sij

yes the court claims are real and i have already acknowledged service online

mr_sij

This is a draft defence I have prepared using templates and information derived from the forum, please can someone review this for me and suggest changes I could make.
...................................................................................................................................................................
Defence Statement:

It is admitted that the defendant is the registered keeper of the vehicle in question and as specifically admitted in this defense the Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre-action correspondence.

1. This Claimant has not complied with pre-court protocol:
(a) The pre court-covering letter does not contain sufficient information such as that no PCN number or photographs of supposed contravention were provided.

(b) The Particulars of Claim fail to comply with Practice Direction (PD) 16 paragraphs 7.3-7.5 in that they fail to set out the details of the agreement that they assert was breached. The Particulars of Claim contains no details and fails to establish a cause of action, which would enable the Defendant to prepare a specific defence only stating “parking charges” which does not give any indication as to what basis the claim is brought.

(c) 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: 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 the operator can recover charges directly.

This applies whether or not you intend to use the keeper liability provisions, therefore lack of relevant necessary information required in defending this claim cannot be considered a fair exchange of information.

(d). The Particulars of Claim are submitted on the Claimant’s behalf by firm of solicitors who state on their website that they “deliver highest standard of service” and having solicitors with “vast experience in civil litigation” as such there can be no excuse for not complying in full with Civil Procedure Rules and Practice Direction.

(e) The court should therefore consider investigating the method used in the claim submitted by the claimant’s legal representatives whether the Particulars of the Claim are that of a “roboclaim” template intended to deal with a variety of circumstances and failing to address the specifics of this Claim.

Which the defendant advocates that parking companies such as the claimant in this case using the small claims track as a form of automated aggressive debt collection is against the public interest, and unfair on unrepresented consumers, which is something the courts should not be seen to be in support of.

(f) As a result of points raised in 1(a), (b), (c), (d) & (e) the Defendant therefore asks that the Court requires the Claimant to file Particulars that fully comply with Practice Directions and at least include (but not limited to) the following information for the alleged parking charges:
i) A copy of the contract it alleges was in place. (e.g. Copies of signage)
ii) How any contract was concluded? If by performance then provide copies of the signage maps in place at the time.
iii) Whether keeper liability is being claimed, and if so copies of any Notice to Driver and/or Notice to Keeper.
iv) Whether the Claimant is acting as agent or principal, together with a list of documents they will rely on in this matter.
v) If charges over and above the initial charge are being claimed the basis on which the charges are claimed.
vi) If interest charges are being claimed, the basis on which this is claimed.

g) Once fully compliant Particulars have been filed the Defendant asks for reasonable time to file a defence

2. While it is admitted that the Defendant was the registered keeper of
the above vehicle at the time of the alleged event it is averred that the Defendant was not the driver on the date mentioned in the particulars and the Claimant is put to strict proof in this respect.

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 (POFA) 2012 in order to hold the defendant responsible for the driver’s alleged breach.

3. It is also denied that the Claimant is the lawful occupier of the land. In the absence the Claimant producing a contract with the lawful occupier of the land, on whose behalf they are acting as agent, or a chain of contracts showing authorisation stemming from the lawful occupier of the land. The defendant has reasonable belief that the Claimant does not have the authority to issue charges or to pursue unpaid parking charges on this land in their own name and that they have no right to bring action regarding this claim.

The Claimant is therefore put to strict proof in the form of an un-redacted and contemporaneous contract, that at the time of the alleged event they were in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner to the Claimant.

4. If the Claimant seeks to rely on the keeper liability provisions of - Schedule 4 Protection of Freedoms Act the Claimant must demonstrate that there was a “relevant obligation” either by way of a breach of contract, trespass or other tort. Furthermore the Claimant must also demonstrate that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the Registered Keeper. The Claimant is put to strict proof that such a “relevant obligation” existed and that the Claimant has followed the correct procedure to transfer liability to the Registered Keeper.

5. The Claimant may also seek to rely on a rather unique interpretation of the judgment in Elliott v Loake (1982) and endeavor to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists and thereby prove his allegations. The defendant submits that this interpretation actually represents a very considerable reworking of the case and does not fairly convey the findings. The reality is that Mr Loake was found guilty (it was a criminal matter) on a surfeit of evidence including forensic evidence of being the driver at the time of a road traffic accident and no such presumption was made. This extract in relation to lead POPLA appeals officer Henry Greenslade (barrister, parking law expert and POPLA Lead Adjudicator in 2015)
“There is no ’reasonable presumption’ in law that the registered keeper of a vehicle is the driver” advises Mr Henry Greenslade QC. “Operators should never suggest anything of the sort,” he says. Further, a failure by the recipient of a notice issued under Schedule 4 of the POFA 2012 does not of itself mean that the recipient has accepted that they were the driver.

6. The Defendant believes the Claimant may also seek to rely on the recent Supreme Court ruling in the case of ParkingEye -v- Beavis. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied 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 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.
7. In addition to the original ‘parking charge’, believed to be £155 for which liability is denied, the Claimant’s legal representatives have artificially inflated the value of the Claim to £230 by adding ‘Legal representatives Costs’ of £75. I submit the Claimant has not actually incurred the added costs; these are figures plucked out of thin air and applied regardless of facts as part of their roboclaim litigation model in an attempt to circumvent the Small Claims costs rules using double recovery. The Court should therefore consider reporting SCS Law to the Solicitors’ Regulation Authority for this deliberate attempt to mislead the Court, in contravention of their Code of Conduct.

8. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious, with multiple threating letters received by the defendant, which has caused a significant amount of distress, wasted time/costs and effort in dealing with this matter.

The Court is therefore invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.


I believe the facts contained in this Defence Statement are true and I am not liable for the sum claimed, or any sum at all.

System

May we see a pic of the claim form with personal details off. Also did they send particulars - SCS usually do. Your defence is supposed to mirror the points they claim in the particulars.

mr_sij

Letter before court
Scs of 1
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Scs pg2
hxxp://tinypic.com/r/2zidbht/9[/url]

Scs pg3
hxxp://tinypic.com/r/14e6j5s/9[/url]

System

I have proof from my bank statement to support this. Is there any further defence I could use to win this claim.

Go back to Matalan and ask if they can cancel. A letter from the principal (if it is Matalan) would go a long way to getting Smart to backoff.

It's a strange case for them to try at court as it's not a clear cut win for them.

mr_sij

Will do that, however am I able to still argue as keeper and ask Matalan for a letter to support I was a customer. Also do I send things like that and all my supporting documents with the defence or is this something that is sent at a later stage