HELP NEEDED! Received County Court Claim Mail Sent to Wrong Address

nosferatu1001

Defence is merely words. No attachments, photos etc. Just the arguments

Much later on you write a witness statement and reference from the statement any evidence you want to bring.

JM0809198

I have received the pictures from UKCPM and it seems that the driver (not sure who was driving) has parked out of the bay markings and the car on the right of it has parked within the markings, whilst the space on the left is vacant and next to a wall so there would appear to be no room for another car to park there regardless.

I guess I won't be able to use that arguement (regarding the adjacent car being parked out of its bay, although who's to say that the car on the right wasnt initially out of its bay and returned to park appropriately). Any advice on this?!

Should I focus on writing a defence which argues the other points that I made instead...

Many thanks for all your help!

JM0809198

Please could you all give me some feedback regarding my defence, your help is much appreciated and critique is welcome, would rather it be now then when facing a judge!

In the County Court
Claim Number: xxxxxxxx
Between
UK CAR PARK MANAGEMENT LIMITED v xxxxxxxxx

DEFENCE STATEMENT

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;
“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. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;

“ 2.1 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 ”

3. The claimant has not provided enough details in the particulars of claim to file a full defence;
3.1. The Claimant has disclosed no cause of action to give rise to any debt.
3.2. The Claimant has stated that a ‘parking charge’ was incurred.
3.3. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
3.4. 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. It just states “parking charges” which does not give any indication of on what basis the claim is brought.
There is no information regarding why the charge arose, what the original charge was, what the alleged contract was, nor anything which could be considered a fair exchange of information.
The Particulars of Claim are incompetent in disclosing no cause of action.
Therefore, as an unrepresented litigant-in-person the defendant respectfully ask that he be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.

3.4.1 On the 20th September 2016 another relevant poorly pleaded private parking!
charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’

3.4.2. On the 27thJuly 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

Background

4. It is admitted that at the time of the alleged infringement the Defendant was the registered keeper of vehicle registration mark xxxxxxx which is the subject of these proceedings.

5. The defendant received the first 'notice' of the alleged parking charge on the xxxxxxxx, 83 days after the alleged contravention, Schedule 4 paragraphs 8(5) or 9(5) of the Protections of Freedom Act specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, (must be) delivered either
1. (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
2. (Where no notice to driver has been served (e.g. ANPR is used)) Not later than 14 days after the vehicle was parked

Based on this, the registered keeper can only be held liable for the sum on a properly-served Notice to Keeper (NTK). UK car Parking Management Ltd failed to serve one and cannot hold a registered keeper liable.

6. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.!
6.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.2.1. There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
6.2.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

6.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

6.4. Furthermore, the defendant refers to a statement of 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.

7. The original Letter before Claim was missing the following information:
-The cause for action on which the claim was made. The LBC referenced ‘parking charges’ but that in and of itself isn’t a basis for a justifiable claim.
-A clear and detailed summary of the facts on which the claim is based. The original letter fails to provide any detail or evidence around the circumstances surrounding theses charges and why these are owed.

The defendant refers to the practise direction section on non-compliance and sanction, there can be no justifiable excuse for the Claimant’s failure to follow the Pre-action conduct, especially when the claim was issued by the Claimants Solicitors.

Failure to set out clear parking terms
8. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
8.1.1. At the time of the material events the signage was deficient in number, font size, wording and lighting to reasonably convey a contractual obligation;!
8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.1.4.UK Car Park Management Ltd had only recently placed their signage on the wall creating new terms and conditions for motorists. The IPC Code of Practice states that;

“Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the site and which materially affects the motorist you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required and left in place for an appropriate period.”

There are no visible signs at the entrance at all and no additional signs or notices to alert drivers.

8.1.5. Furthermore, The IPC code of practice states: Entrance Signs should:

a) Make it clear that the motorist is entering onto private land
b) Refer the motorist to the signs within the car park which display the full terms and conditions.
c) Identify yourself (where you are a limited company. This should be by reference to your full company name, your company number and the jurisdiction within which your company is registered).
8.2 The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet ParkingEye would not have been able to recover any sum at all without 'agreement on the charge'. In the Beavis case, the £85 charge was held to be allowable to act as a disincentive in that case only, based upon very specific and unique facts in a 'complex' case involving the existence of a specific legitimate interest from the landowners regarding turnover of parking spaces and very clear, brief and prominent signs. In fact, the Supreme Court Judges observed that it would be unfair if drivers were to be penalised for parking slightly out of bay lines when causing no obstruction (this was specifically mentioned at the hearing and was clearly not something they would have allowed). Further, it was held at the Court of Appeal that a parking charge sum of £135 would fail the penalty rule. The authority for this is 'Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 (17 October 2012)'.

9. 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.!

10. The Claimants increasingly demanding letters failed to evidence any contravention.
The Claimant sent threatening and misleading demands which stated failure to pay the charge would result in enforcement action and an increased charge. No figure for additional charge 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 added on later with figures seemingly produced out of nowhere.

11. The Defendant has reasonable belief that the claimant didn’t pay their legal representatives £50.00 to prepare the deficient claim that is quite clearly a template with no case specific input.
And so the Defendant does not belief the Claimant has incurred £50 costs to pursue an alleged £100 debt.

12. The Claimant has at no time provided an explanation as to how the charge has been calculated, the conduct that gave rise to it or why he amount increased from £100 to £160. This appears to be an unqualified additional cost and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
The Protections 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.

13.The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

14. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.!

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Name - Signed - Date

Many thanks!

Also I would have reached 33 days by tomorrow, is there a specific time for me to email this to the court by!?

JM0809198

Apologies but if it needs to be submitted by today I would really appreciate the advice asap so i can get it sent across . I've had some issues relating to type 1 diabetes which has affected some of my ability to carry the necessary research, reading etc. Whilst, like everyone else, also balancing out work, family etc.

Lamilad

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 [STRIKE]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 charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.”[/STRIKE]

your defence needs to be concise. You only need to make reference to points you can expand up on later

Lamilad

No figure for additional charge 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 added on later with figures seemingly produced out of nowhere.

As you are defending as the keeper you need be careful about wording on certain paras such as the above. This why we advise posters not to blindly copy and paste other defences but to carefully select certain passages which they can use then edit them accordingly.

Here you would need to qualify this statement with something alomg the lines of 'the defendant has since visited the car park in question to assess the validity and effectiveness of the signage in place.'

JM0809198

Thanks for the reply.

Do I need to cut out a lot of the points I have made? Also my notice was served on the 22nd of September so tomorrow is the 33rd day unless I'm mistaken, do I have to hand this in at a particular time or do I have up unit midnight?

Coupon-mad

You don't hand it in anywhere, you email it to the usual CCBCAQ email address (you can Google to find it in the CCBC's contact us page - or read it on any other defence thread).

Your defence is pretty good; the only part I would add to is #10, where you could add:

I'm quite baffled that I have even received debt recovery letters as there has never been a ticket on my car and I never received the NTK letter. I called UKCPM and they stated that the letters were sent out and that they would send me proof that the charge was a valid one but I haven't received any evidence.

JM0809198

I've made the following adjustment, many thanks for your help Lamilad.

10. The Claimants increasingly demanding letters failed to evidence any contravention.
The Claimant sent threatening and misleading demands which stated failure to pay the charge would result in enforcement action and an increased charge. The defendant has since visited the car park in question to assess the validity and effectiveness of the signage in place. No figure for additional charge 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 added on later with figures seemingly produced out of nowhere.

Do you think I'd be okay to submit my defence now? or there still other aspects which have fallen short of what is required.

Lamilad

It's a decent defence and covers all the important points... probably in too much detail - If we had more time we could help you make it more concise but it's no biggie.

Your defence must be received by the court by 4pm tomorrow. Print it off, sign it, and scan it back to your PC. Then send as a PDF attachment to the court with "claim no. xxxxxxx: Defence attached" in the subject line