Parking Eye Claim Form

jimmyt05

Okay thanks for the reply. Just that I wouldn't know whats relevant and not relevant. New to this but I know a lot more than before.

jimmyt05

I, XXXX, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

1. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). 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) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'.
i. 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;
“ 1.4 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):
i. those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
ii. those which are incoherent and make no sense,
iii. those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant ”
c) The Schedule of information is sparse of detailed information.
d) The Claim Form Particulars do not meet the requirements of Practice Direction 16 7.5, it’s extremely sparse and divulged no cause of action nor sufficient detail, not clear and concise as is required by CPR 16.4 1(a). The Defendant has no idea what the claim is about, nothing which specifies how the terms were breached - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:
i. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
iv. support the efficient management of proceedings that cannot be avoided.’
e) The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.
f) 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
vii. If Interest charges are being claimed, the basis on which this is being claimed.
g) Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

2. 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) The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
b) In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
c) 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.
i. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, woefully inadequate.
ii. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
ii. The signage did not comply with the requirements of the Code of Practice of the British Parking Association ("BPA") Accredited Operators Scheme, an organisation to which the Claimant was a signatory;
iii. the sum pursued exceeds £100.
iv. there is / was no compliant landowner contract.
v. 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
vi. 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 by an authorised party using the premises as intended.
vii. 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.

3. 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.

4. 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.

5. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 5 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

6. 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.”

7. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
a) 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")
b) Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
i. There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
ii. 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.
c) 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.

8. Parking Eye Ltd are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
a) 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.
b) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
c) 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

9. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £175. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
a) 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.
b) The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
i. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

10. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
b) The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
c) Not withstanding the Defendant's belief, the costs are in any case not recoverable.
d) The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.
e) The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

11. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

12. 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.

13. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

14. The Defendant invites the court to strike out the claim for the above grounds.

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


Took out all the repetition, and irrelevant things. If there is anything I can add or remove please let me know.
Thank you.

HeatonGuy

jimmyt05 wrote: »

I, XXXX, am the defendant in this matter. I do not admit any part of this claim and put the Claimant to strict proof of every element of the claim for each of the following reasons

If you Deny something, in the Civil system, it means you can prove they are wrong. It puts the onus on you to prove your defence

If you do not admit it, and put them to proof, they then have to strictly prove theirs.


Beware of anyone who claims a 99% success rate at court - even Bargepole says that's not true, and he is probably the most successful court advocate here, and he has a Law Degree.

jimmyt05

Makes sense, thank you for that, I will change it.

jimmyt05

What happens if one person is insured to the car, but others peoples policies allows them to drive the car. Would you bring up every driver who's policies allows them to drive the car?

Coupon-mad

No need to actually say that (certainly not naming them) but the defendant can say that the car is driven by other family members/friends on their own insurance and therefore the balance of probabilities is not tipped in favour of any assumption that the keeper of this car, was driving on this occasion months ago.

However, this is not a major part of any defence against ParkingEye if they've issued a POFA notice to keeper, with wording about the keeper being liable, and that document was served by day 14 after the parking event. If they did it right then the keeper is liable no matter who was driving.

HeatonGuy wrote: »

Beware of anyone who claims a 99% success rate at court - even Bargepole says that's not true, and he is probably the most successful court advocate here, and he has a Law Degree.

I take issue with your rudeness (again). No-one should 'beware' my advice or the advice of the other regular posters who have been here for years.

Newbies reading this:

Let's make one thing clear - you can be sure that this forum has a 99% win rate, and some others (not bargepole, who merely questioned whether enough posters report back, to support the 99% outcome stat) are perhaps jealous of that and try to suggest it's not the case, seemingly in pursuit of their own agenda.

The regular posters are witness to the fact it is true. We see newbies win time and again, and for bog standard cases, no-one needs a lay rep unless it's their relative or friend.

This forum advises on defences every day, and sees most of those people through right to their hearings (very few grab a defence then disappear), and we ask for an update and remind the posters to tell us their hearing outcomes, good or bad.

The 99% figure is based only on the cases where people stick with forum advice, come back at WS stage and pre-hearing, which is in the hundreds.

I believe (prove me wrong, HeatonGuy, since you always order people to prove you wrong, let's turn the tables and the burden is yours) that this forum has seen just TWO cases lost in 2017.

The 99% outcome statistic is based on outcomes known, same as bargepole's own figures are for his personal cases. And seeing as we've seen hundreds of outcomes reported this year, certainly well over 200, it's still in the region of (and closest to a whole figure of) 99% even if I've missed reading about one loss.

I don't count a person rocking up after the event to tell us they lost in court, out of the blue, for obvious reasons. I do include discontinuances, because they are a win.

I suspect MSE's continued successful defence advice, and 99% win rate at POPLA too, is the reason why the BMPA doesn't recommend any company these days, and only recommends forum advice to support the BMPA's own. This forum offers bespoke (not template) defence advice and hand-holds the posters right to the hearing, and people are so likely to win, they may as well fight.

jimmyt05

Coupon-mad wrote: »

No need to actually say that (certainly not naming them) but the defendant can say that the car is driven by other family members/friends on their own insurance and therefore the balance of probabilities is not tipped in favour of any assumption that the keeper of this car, was driving on this occasion months ago.

However, this is not a major part of any defence against ParkingEye if they've issued a POFA notice to keeper, with wording about the keeper being liable, and that document was served by day 14 after the parking event. If they did it right then the keeper is liable no matter who was driving.

Thanks for the reply, I was just asking for the WS part, haven't read that far ahead about what's needed in the WS or how to do it eg documents. So I thought I had to prove it somehow.

Is point 1 and 2 in my defence still wordly ?

Coupon-mad

jimmyt05 wrote: »

Signs were unclear and ambiguous. The car park is free (but apparently only for bingo members, it now transpires), but no ticket was purchased based on the honest belief that the car park was shared with the gym. The car park is between these two buildings. If it was free for one side why was the other not clearly an unambiguously separated/signed or delineated differently and prominently, in line with Lord Denning's ''red hand rule''.

Has that been stated in the defence, I couldn't see it?

Notice I've changed your words. Nothing about the driver 'assuming'. It's better to say 'honest belief' and make the argument that the signs were ambiguous in a shared car park, hence I added to and edited your words above.

[Deleted User]

@HeatonGuy some gentle clarification if I may, before we get back to business...

Bargepole says that's not true, and he is probably the most successful court advocate here, and he has a Law Degree.

I'm glad you said *probably* but are you going to qualify that further? A few of us have law degrees, the occasional practising certificate too. We probably encompass a broad range of expertise too. I hope that's not the entire legal field you refer to, because I'd like to think i hold my own in Court... :cool:

you don't back up your 99% claim, then unfortunately, not only are you liable for misleading vulnerable individuals coming here for help, but you are also making a claim for which MSE can be held liable either by the ASA or by Quangos with more teeth.

Sooo do let me know:

1. How a forum post constitutes an advertorial or comes within the jutidiction of the advertising standards authority;
2. Which quasi-autonomous non governmental organisation may be interested in any isolated forum posting;
3. How MSE or related companies may be liable for an opinion expressed on a public forum, particularly where you have expressed an alternative view;
4. What your alternative estimates as to forum success or lack thereof may be if you are so quick to criticise
(FWIW I think it is difficult to produce any reliable statistical data as that may only be garnered from HMCTS judgments, but I'd also regard the forum as more successful than not

:idea: Shall we all just play nice and let's get back to helping people, shall we?

jimmyt05

Coupon-mad wrote: »

Has that been stated in the defence, I couldn't see it?

I don't know how to word it in my defence. But if I could copy your edit it would be like this:

vi. Signs were unclear and ambiguous. To the honest belief that the car park is shared as it is between two buildings, the bingo (xxx location) and the gym (xxx location). At the car park entrance signs states free but apparently only for the bingo members. If it's free for one side, why wasn't the other clearly and unambiguously separated/signed or delineated differently and prominently, also in line with Lord Denning's ''red hand rule''.

Am I able to put that in my defence? Under 2c) v. ?
It's like when you go to a retail park, you would believe that you can enter any shop without having to re-park your car when entering the next shop and reading the signs in that area.