Parking ticket MCOL defense help please

MarcusW14

Hi All,

Thanks in advance for your help it is greatly appreciated.

So I have recently a bit out of the blue I received the dreaded MCOL claim form. As per the sticky thread I have acknowledged service and am currently preparing to write my defense but I was unsure exactly of the route/ defenses to go down.

The details of the claim are as follows - I received 2 tickets at Bath University (First Parking LLP), one on the 17/5/16 and the other on the 18/5/16 and they are persuing me for both. At the time I did not have a parking permit but I currently do (don't know if this helps, probably not). I ignored all corrispondance from them( I now realise this was the wrong thing to do) until this came through my door. Almost everyone I know has had at least one ticket from them and they had never pursued anyone like this as far as I know.

I have never admitted being the driver.
I'm pretty sure the 'particulars of claim' on the MCOL form doesn't include everything it needs to.
No mention of how the amount was decided upon (£320 + £35 court costs)
Other than that I'm not sure and feel I need a lot more in my defense.

I have been looking mostly at 'A Gladstones defence, using some wording suggested by IamEmanresu' posted on the sticky thread, is most of this applicable for my case?

Althought i thought firstly should I try and talk to someone at the university? Could they get it cancelled or is that a waste of time?

Thanks for your time, really appreciate it!

Marcus

Redx

I would bear the GLADSTONES BASIC DEFENCE in mind but as this is for a university I would search the forum for recent university cases as well and see what they have done as it may be more helpful

do not read anything older than 18 months

and its always worth trying to get the uni to cancel the charge, but as an MCOL has been issued its lekely to fail, but you never know

Coupon-mad

I have been looking mostly at 'A Gladstones defence, using some wording suggested by IamEmanresu' posted on the sticky thread, is most of this applicable for my case?

A good friend's kids went to that lovely University. The NTKs from F1rst Parking were not POFA-compliant and the signs were sporadically placed, hidden in foliage in some places and the wording of the terms was prohibitive (i.e. no offer made to park without a permit = no contract then). I've never had a PCN from them but I've helped people get off them at appeal.

Was this a Gladstones claim, or SCS Law, or who? Surely F1rst don't file their own? Do you have a permit as a staff member?

System

The details of the claim are as follows - I received 2 tickets at Bath University (First Parking LLP), one on the 17/5/16 and the other on the 18/5/16 and they are persuing me for both.

Can you check the "claim" to see if it has a) come from a court and b) has an 8 digit text string beginning with D?

Seen some First "claims" which copy ANPR Ltd's approach of sending false paperwork.

MarcusW14

Can you check the "claim" to see if it has a) come from a court and b) has an 8 digit text string beginning with D?

Yeah it has the claim number in the top corner beggining with DXXXXXXX and it has come from a court I believe as it has the county court stamp and says above the 8 digit text nuber 'In the county court business centre'

Was this a Gladstones claim, or SCS Law, or who? Surely F1rst don't file their own? Do you have a permit as a staff member?

How would I tell? Everything related to the claimant refers to First Parking LLP.
And I have a permit as an athlete who trains at the university.

System

You've got a live claim if there is a Dxxxx number so best to get it acknowledged.

Appears that First are doing it themselves and there should be a name in the bottom left box which starts "The claimant believes that the facts ...".

What name does it give.

MarcusW14

The claiment is definitely First Parking LLP then.

Going to post my defense on here tomorrow when it's finished if people wouldn't mind havinng a quick look to check it's ok.

MarcusW14

Here is my defense, I've gone for the long, make them work hard approach which I found in another thread on here. I have used it as a template but didn't want to change too much I hoope that is okay to do.

Any suggestions greatly appreciated!!!!




Dear Sirs,

Re: First Parking LLP

References
XXXXXX

I note your letter before claim dated XXXXXX, received XXXXXX.

I deny that I owe any debt to your client, First LLP.

I intend to defend any claim and I advise that your client withdraws at this early stage, before costs are incurred in defending a claim against me as registered keeper. I believe any claim by First LLP misguided, baseless and will no doubt fail.

Due to my local knowledge of the area and having inspected the signs at the location stated before responding to your letter, I am aware that whilst your client's signage is displayed at the location in question, the placement of such signs is not only sporadic and affected by foliage around them but the terms are illegible from a driving seat. The signage is, therefore, incapable of creating any contractual liability on the part of any driver, as any supposed contractual terms are void for uncertainty.

Secondly, your client has supplied no evidence at any point in time as to the identities of the driver(s) at the material times. There was, of course, no legal requirement for me to respond to the Notice to Keepers (NTK) in question, so any suggestion of failure on my part will be robustly defended. In addition, I view the continued bombardment of increasingly threatening demands from what appeared to be - a variety of companies - as harassment. Had First LLP evidenced the driver(s) in their NTKs, I would have passed the supposed 'PCNs' to those drivers in an effort to get the case resolved as quickly and easily as possible for the claiment since these are not matters for which a registered keeper can be held liable in law. This position is wholly due to the choice of your client when drawing up a 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.

You have listed two seperate '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 either or any occasion. Were you to try and 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

Your client needs to be aware of several recent cases where the Judges ruled Elliott v Loake as not relevant or applicable, including Excel v Mr C C8DP37F1 Stockport 31/10/2016, and Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. Further, Excel v Lamoureux at Skipton C3DP56Q5 involved three unreasonable claims in which DJ Skalskyj-Reynolds examined the Parking Operator's NTK and found that it did not comply with the POFA. The claimant was warned not to bring further baseless non-POFA cases to that Court and were forced to discontinue the final troublesome claim. This transcript will be adduced in evidence in my defence:

In addition, PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade clarified that in regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA Annual Report 2015). All AOS members with the British Parking Association (including your client) adhere to POPLA requirements and have been provided with copies of all POPLA Annual Reports to date so there is no lawful excuse continuing with a case against a registered keeper when an operator chooses not to use the POFA.

In each demand, your client has included an addition in costs/administrative charges which are not defined in any contractual document. It is my strong belief that your client's additional costs are arbitrary, unsupported and are clearly an attempt at double recovery, which cannot be supported on the small claims track. Should your client attempt to rely upon another commonly used case in these unfounded, autonomous, conveyor belt-like claims for parking operators, namely Chaplair Ltd vs Kumari [2015] this can easily be removed from this matter, due to that being an irrelevant decision about contractual fees set in lease terms, not fictitious 'costs' invented by a parking firm who already make a significant profit from paid 'PCNs' as was found in ParkingEye Ltd v Beavis [2015], where it is common knowledge that the parking firm were only eligible to claim for the £85 charge itself. This sum was held to be more than sufficient to cover the very minimal cost of operating a standard ANPR camera 'enforcement regime' with a few template letters generated automatically.

Since the POFA also states that the only sum that can be claimed from a registered keeper (subject to full compliance with Schedule 4) is the sum stated on the NTK itself – therefore not allowing double recovery - it is clear that it is neither within the intentions of Parliament, nor was it held by the Supreme Court, that any parking firm can include the addition of extra costs dressed up as 'damages' or ‘loss’, over and above the theatrically high/already inflated parking charge sum itself.

If your client will not withdraw, then I ask for your response to the matters above and for the following documents:

i. The contract (or chain of contracts) between your client and the site landowner - not a site agent or other non-landholder - giving your client authority to carry out parking management and on what terms;

ii. Any and all photographs taken of my car on the material dates;

iii. A copy of any document your client asserts sets out the terms of the alleged contract between it and a driver (this may be the same as iv below);

iv. A copy of the signs on display and a dated plan of where in the car park they were displayed on those dates;

v. A map showing the boundary within the site, purportedly operated by First LLP., as opposed to the other parking operators also operating at this location.

These are core documents, central to your client’s claim. As such, they are documents which are required to have been produced at an early stage (regardless of whether or not I asked for them) in this pre-action phase, pursuant to paragraph 6 of the Practice Direction – Pre-Action Conduct. I would have expected at the very least, that the contract requested under iii above should have been appended to the Letter Before Claim. I am requesting these documents because I clearly require them in order to be able to prepare a proper defence to any Claim and/or a meaningful POPLA appeal, as is my entitlement. The CPR clearly anticipate an early exchange of information, as per paragraph 6 of the Practice Direction – Pre-Action Conduct, Rule 16 and Practice Direction 16 – any failure to produce the information I have asked for will be nothing other than a deliberate attempt to frustrate my ability to defend the claim and a failure to comply with pre-action obligations.

Any failure by you/your client, to enter into meaningful dialogue in order to avoid unnecessary litigation will mean that you will have denied me the opportunity to “take stock” pursuant to paragraph 12 of the Practice Direction, or to enter into discussions with you pursuant to paragraph 13. I will seek the sanctions provided for by paragraph 15 of the Practice Direction.

May I draw your attention to the possibility for Alternative Dispute Resolution (ADR). ADR a requirement at this stage under the pre-action protocol and I wish to draw your attention to the EU ADR Directive of 21 May 2013 and The Alternative Dispute Resolution for Consumer Disputes Regulations 2015.

Private parking tickets issued by AOS members are always suited to the ADR of an independent appeals service, which exists for this exact purpose. As First LLP is a member of British Parking Association, should your client refuse to withdraw I hereby make the reasonable request that this dispute is resolved out of court by of Parking on Private Land Appeals (POPLA) and to minimise costs, the claimant should issue one POPLA code for one of the Parking Charge Notices and agree to place the other disputed “charge” on hold whilst this process is completed.

POPLA codes can be issued at any time, not just in the first 28 day arbitrary deadline (imposed in the interests of parking operators only, creating a significant imbalance in the rights of consumers). It may interest you to know that POPLA codes have been produced by parking operators many months/years after parking events, by order of the Courts and if your client refuses to withdraw I am formally asking for a POPLA code now and will make the same reasonable request of the CCBC when serving my Directions Questionnaire in due course.

Should your client deny my right to ADR and proceed despite being unable to invoke 'keeper liability' in law, I will consider the action to be indicative of wholly unreasonable and vexatious conduct in litigation. I will draw to the court’s attention to the issues, will claim my costs and will cite unreasonable conduct pursuant to Rule 27.14(2)(g).

Finally, since there is clear evidence that this proposed claim has no prospects of success and if pursued, will have been wrongly brought, I am advised that your client has breached the terms of the Data Protection Act by misusing my data to mislead me about liability.

Your client has accessed my keeper details from the DVLA on more than one occasion and despite having no information as to the driver on each occasion, it continued under an unreasonable and unlawful assumption to pursue me instead, when it had no right to do so. Whilst obtaining DVLA data to enquire who was driving is allowed under the KADOE rules, that data must not be further used for any purpose outside the basis upon which it was provided by the DVLA. Your client has stepped outside the DVLA provision of my data by continuing to cause me significant distress by harassing me, the registered keeper. There can be no doubt whatsoever that a Letter before Claim sent blindly to a person with no legal liability is likely to cause enormous distress and I confirm that this is the case.

I require you and your client to case and desist. To be clear, I decline any invitation to name the driver and this is my lawful right. There the matter must end, because First LLP have no lawful excuse to use my DVLA data beyond the very basic cause, of enquiring as to the driver's identity. A line must now be drawn under this exchange.

Should this matter proceed then I put you on notice that I will make a counterclaim for damages in respect of such Data Protection Act (DPA) breaches, in respect of both individual PCN/DVLA data request. I understand that there is case law which supports a damages award of £750 for each breach (so a total of £1500 in this case as a counterclaim). I believe I am entitled to claim an award of aggravated damages because your client must have been aware of the provisions of, and its duties pursuant to, the DPA and the limitations as to the use of the data they extracted under the KADOE. They are indisputably aware that they were operating a business model which gives them no rights whatsoever to claim against a registered keeper and I require them to withdraw immediately.

I expect a substantive response with the documents and POPLA code (or confirmation of cancellation of all PCNs) within 14 days of this letter.

yours faithfully,

Coupon-mad

On the one hand you said you had an actual 'live' claim from MCOL, which needs a defence, addressed to the court and set out like the example 'no permit' defences, as shown in the NEWBIES thread post #2.

But the above isn't a defence, that's a reply to a pre-court letter before claim. Not right.

MarcusW14

Thanks for that Coupon-mad I got my links mixed up and hence that happened.

Here is second attempt



In the County Court
Claim Number:
Between
xxxx (Claimant)
and
xxxx (Defendant)


Defence Statement


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 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 Claimants are
known to be serial issuers of generic claims similar to this one. HM Courts Service
have identified over 1000 similar sparse claims. I believe the term for such behaviour
is roboclaims and as such is against the public interest.


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

Statement of Defence

I am XXXXX, defendant in this matter. It is admitted that the Defendant was the
authorised registered keeper of the vehicle in question at the time of the alleged
incident.
The Defendant denies liability for the entirety of the claim for the following reasons.

(1). The identity of the driver of the vehicle on the date in question is unknown and has not been
ascertained.
1. The Claimant did not identify the driver
2. 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.
3. The code of practice for BPA registered parking companies clearly states ‘The driver is responsible for paying the parking ticket.‘

(2) This is a speculative serial litigant, issuing a large number of identical 'draft particulars. The term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

(3) The claimant has not provided enough details in the particulars of claim to file a full
defence. In particular:
1. The Claimant has not disclosed a time of the alleged incident.
2. The Claimant has not disclosed the alleged car park of the incident as the location has many.
3. The Claimant has given no indication of how the greatly increased outstanding amount and costs came to be from the original alleged offence.

(4) The Claimant does not own the land therefore, there is reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and have no locus standing to bring this case.
1. 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.
2. The claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question.
3. 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.

(5) The claimants Letter Before Action did not comply with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which your client intends to rely, unless I am to assume they will be relying on no documents.

(6) 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 £60 to £355. This appears to be an added cost with apparently no qualification and a blatant attempt at double recovery, which the POFA Schedule 4 specifically disallows. 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.
1. The signage on this site is inadequate to form a contract. It is illegible from the drivers eat due to size and often foliage blocking the sign itself in some locations after further inspection. This is as well as the sporadic and random location of said signage.
2. The BPA code of practice states: ‘There will be a sign at the entrance to the car park that
will explain in the broadest terms that the car park is private land and that it is managed by an AOS operator’. This signage does not exist in any of the car parks at the location.
3. 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 Beavis case)
this fails to meet the requirements of Schedule 4 of the POFA.

(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 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

(9) 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 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.




I believe the facts stated in this defence are true.

MarcusW14

It's double spaced in the real document and the plan was to convert it to a PDF and email it so the formatting stays correct