Smart Parking ScS Claim defence, pls help!!

Coupon-mad

Ignore them in Scotland, unless you get a claim form.

Lynne1619

Thanks coupon-mad.

mr_sij

This is matalans response, not sure I'll be getting much help from this lot - seems they're doing their best to distance themselves from this. Is there anything from this response that could be relevant to my defence, In particular the bit about the landowners or Should I just send my defence off now in current state
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Good Afternoon,

Thank you for contacting us in regards to a prking fine you have received when visiting our Romford store back in November 2016. Please be assured your email has reached the CEO office who reply to all customers on behalf of Mr Hargreaves.


While not being unsympathetic to your situation, I unfortunately cannot help you on this matter. Upon checking with our Estates Department, I have been informed we are not responsible for this car park. The car park is owned by the landlord and it is they who employ the parking companies who issue the parking fines to customers who have not adhered to the parking tems and conditions. There are signs around the carpark informing all customers of the parking restrictions and that a ticket must be purchased at all times.

I can understand your frustration and disappointment that you have received the fine. The first process would be to appeal but due to the lapse in time I am afraid this may have gone over the time allowed also
due to customer feedback, Matalan have worked with the landlords on this matter, and ” Smart parking” no longer look after the car parks, that are attached to our stores. At this time we are unable to cancel your fine. All I can advise is that you pay the current amount and this may increase further or CCJ'S may be implemented.

However your custom is appreciated and with this in mind as a gesture of goodwill I would like to send you some gift vouchers to spend in store to the value of £80 to help towards the payment of the fine. If you would like to receive them please provide your full address details so I can arrange to have them posted as soon as possible.

Once again please accept our apologies for any upset and confusion this matter may have caused. This was not our intention.

Redx

whatever you do , do not miss the deadline for submission to the court

as for the above letter, they clearly sympathise and I do believe that parking companies have lost business due to their predatory tactics at matalan and also elsewhere, but they could have told you who the landholder or M.A. is in order for you to approach them

you can also find out who the landholder is by paying the LAND REGISTRY a small fee, recoverable in your costs schedule if you win in court (I am surprised you have not done this yet)

mr_sij

Not sure their is much to get out of this lot but the registered land owners STATE STREET TRUSTEES LIMITED (Co. Regn. No. 02982384) as depositary of the F&C UK Property Fund ICVC of 20 Churchill Place, London E14 5HJ and care of F&C Fund Management Limited, Exchange House, Primrose Street, London EC2A 2NY. They will only defend the parking company anyways

mr_sij

Can anyone cast their eyes over this, is it okay to send as it is? when I send off the defence do I need to include a copy of all correspondence to support the defence??
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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 “Displaying a ticket which had expired” were provided.

The defendant therefore requires the court ask the claimant to provide strict proof of said expired ticket.

(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 such 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 it’s legal representatives 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 methods used 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 (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.

Coupon-mad

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. Smart Parking have never used compliant wording from the 2012 statute so their Notice to Keeper letters are incapable of establishing 'keeper liability'. There is no alternative route supported by any rule of law.

I would also add the words of Henry Greenslade from the POPLA Annual report 2015 (easy to search for on here or Google) about 'understanding keeper liability'.

And I would add the facts of the conversation the occupants of the car had with the retailer (Matalan, the principal and landholder) which created a promise the driver was reasonably entitled to rely upon for that visit. Search the forum for 'promissory estoppel' and 'battle of the forms' and add those points in, to show the driver was not liable when there was an alternative contract/promise made with Matalan, which came from their employee on site so there was no reason to doubt it.

mr_sij

Coupon thanks for your reply, wanted to ask do you think its better to avoid mentioning the bit about the occupant in my defence?

mr_sij

I have now included in my defence the words of greenslade and a bit about promissory estoppel. For one last time I would really appreciate if someone can cast their eyes over this, I aim to send this off by recorded delivery by Saturday latest!!
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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. The Claimant has failed to comply with pre-court protocol:
(a) The pre court-covering letter does not contain sufficient information such as that - PCN number was not provided, photographs of supposed contravention “Displaying a ticket which had expired” were not provided, the claimant should provide strict proof of said expired ticket.

(b) The Particulars of Claim also failed 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 the claimant assert was breached. The Particulars of Claim also lacks sufficient 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 in the car park as stipulated 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 such 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 it’s legal representatives 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.

The court should also consider investigating the methods used 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. The defendant advocates that actions of parking companies who uses the small claims track as a form of automated aggressive debt collection is against the public interest, which is unfair on unrepresented consumers and is something the courts should not be seen to be in support of.

(f) As a result of points raised in 1 (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 a fully compliant Particular have been filed by the claimant, 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. “Promissory estoppel” - the occupant of the car on the said day of the incident had a conversation with the retailer (Matalan) which created a promise of a minimum of (1 hour parking) for paying customers; the occupant of the car was reasonably entitled to rely upon this promise which came from Matalan’s employee on site so that there was no reason to doubt said promise; the time of entrance and exit on the PCN confirms this as the vehicle remained within the 1 hour limit. A complaint has been logged with Matalan to this effect and breaking of such promissory with a parking charge is unfair to the defendant.


4. It is also denied that the Claimant is the lawful occupier of the land, and in the absence of 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.

5. 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. The defendant submit that 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.

Coupon-mad

mr_sij wrote: »

Coupon thanks for your reply, wanted to ask do you think its better to avoid mentioning occupant in my defence. Would the court not say I should give up who the person is?

Nope. It is your best point of easy defence, Lamilad's threads are typical. He won due to no keeper liability and educated the Skipton Court Judges along the way. Click on Lamilad's username and read his threads he started about his hearings.