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Smart Parking County Court defence
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sfkm15
Posts: 3 Newbie
OK. So this has gone all the way to County Court Claim. Smart Parking not backing off, much as I have tried to follow the advice here. From what I read they have lost the Matalan contract, so maybe we’re into revenge territory.
I've read the advice here on MCOL and acknowledging service. So we’re on to defence. Draft below, but one or two points:
The Particulars of Claim refer to an implicit ‘agreement’ to the terms and conditions in the act of parking, so I presume I can’t really use 1. trespass/breach of contract/contractural charge. On the other hand they rely on an either/or ‘overstaying this time or failing to pay a fee at all’ (as did the original PCN). Presumably they have to provide proof of a specific breach, not just an either/or. Although claiming ‘the driver breached the agreement ... and incurred the charge’, there is no statement here as to on what basis they are attempting to hold the keeper liable.
Because they have lost the contract, their signage has gone, so I’m not sure I can use any of those arguments at 6. (although from google streetview you can see that the sign at the entrance is Matalan’s own and just said ‘Pay and display...Customers receive full refund. Please see signs for details’, contrary to their claim on the PCN of signage ‘clearly displayed at the entrance and throughout the car park’ and apparently contrary to BPA).
Anyone have an opinion as to whether Smart Parking’s PCNs are POFA compliant? About the only thing I can see is that they don’t explicitly state ‘that the creditor does not know both the name of the driver and a current address for service for the driver’. In fact they manage to avoid saying who they are holding responsible at all: a car was parked, a parking charge must be paid, and then ‘if you were not the driver and wish to provide the driver’s details...’.
Does this fit the bill?
***
In the County Court Business Centre
Claim Number: ___
Between:
Smart Parking 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:
1. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed 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 never been provided to the Defendant.
a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
b) The Claim form Particulars were sparse and divulged no cause of action nor sufficient detail. The alleged ‘breach’ of agreement is not specified but couched as an ‘either/or’. The Claim form Particulars did not contain any evidence of a specific contravention nor photographs.
c) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
d) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
(i) 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
(ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
(iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
(iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
(v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
(vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
e) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.
Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and ‘relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information at the entrance to the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £245.00 for outstanding debt and damages.
4. 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.
5. 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 (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.
6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.
a) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
(ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from an authorised party using the premises as intended.
(iv) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
d) BPA CoP breaches - this distinguishes this case from the Beavis case:
(i) the signs were not compliant in terms of the font size, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) there is / was no compliant landowner contract.
7. No standing - this distinguishes this case from the Beavis case:
It is believed Smart Parking do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
8. No legitimate interest - this distinguishes this case from the Beavis case:
This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.
9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.
10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.
a) If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.
b) Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.
c) At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £170 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.
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 served on 30th August 2017.
(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.
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
Date
I've read the advice here on MCOL and acknowledging service. So we’re on to defence. Draft below, but one or two points:
The Particulars of Claim refer to an implicit ‘agreement’ to the terms and conditions in the act of parking, so I presume I can’t really use 1. trespass/breach of contract/contractural charge. On the other hand they rely on an either/or ‘overstaying this time or failing to pay a fee at all’ (as did the original PCN). Presumably they have to provide proof of a specific breach, not just an either/or. Although claiming ‘the driver breached the agreement ... and incurred the charge’, there is no statement here as to on what basis they are attempting to hold the keeper liable.
Because they have lost the contract, their signage has gone, so I’m not sure I can use any of those arguments at 6. (although from google streetview you can see that the sign at the entrance is Matalan’s own and just said ‘Pay and display...Customers receive full refund. Please see signs for details’, contrary to their claim on the PCN of signage ‘clearly displayed at the entrance and throughout the car park’ and apparently contrary to BPA).
Anyone have an opinion as to whether Smart Parking’s PCNs are POFA compliant? About the only thing I can see is that they don’t explicitly state ‘that the creditor does not know both the name of the driver and a current address for service for the driver’. In fact they manage to avoid saying who they are holding responsible at all: a car was parked, a parking charge must be paid, and then ‘if you were not the driver and wish to provide the driver’s details...’.
Does this fit the bill?
***
In the County Court Business Centre
Claim Number: ___
Between:
Smart Parking 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:
1. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed 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 never been provided to the Defendant.
a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
b) The Claim form Particulars were sparse and divulged no cause of action nor sufficient detail. The alleged ‘breach’ of agreement is not specified but couched as an ‘either/or’. The Claim form Particulars did not contain any evidence of a specific contravention nor photographs.
c) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.
d) Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
(i) 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
(ii) A copy of any contract it is alleged was in place (e.g. copies of signage)
(iii) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
(iv) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
(v) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
(vi) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
e) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.
Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and ‘relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information at the entrance to the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £245.00 for outstanding debt and damages.
4. 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.
5. 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 (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.
6. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.
a) Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
(i) Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
(ii) Non existent ANPR 'data use' signage - breach of ICO rules and the BPA Code of Practice.
(iii) It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from an authorised party using the premises as intended.
(iv) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
d) BPA CoP breaches - this distinguishes this case from the Beavis case:
(i) the signs were not compliant in terms of the font size, lighting or positioning.
(ii) the sum pursued exceeds £100.
(iii) there is / was no compliant landowner contract.
7. No standing - this distinguishes this case from the Beavis case:
It is believed Smart Parking do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
8. No legitimate interest - this distinguishes this case from the Beavis case:
This Claimant files serial claims regarding sites where they have lost the contract, known as revenge claims and it believed this is one such case. This is not a legitimate reason to pursue a charge out of proportion with any loss or damages the true landowner could pursue.
9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.
10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.
a) If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.
b) Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.
c) At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £170 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.
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 served on 30th August 2017.
(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.
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
Date
0
Comments
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Errmm...Smart NTKs are non-POFA ones which is very obvious!there is no statement here as to on what basis they are attempting to hold the keeper liable.
Look at schedule 4 para 9(2)f, the prescribed wording needed as the warning that the keeper will be held liable after a 29 day period. Now read the Smart effort.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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