County Court defence help

GT6

Hi

First of all apologies in advance if I get the forum etiquette or protocols wrong – I’m new to this.

In early May the driver parked the keeper’s car in a Working Men’s Club car park, entered the car’s number plate and paid 80p for an hour. The driver came back late and then the keeper got a parking charge through the post from ParkingEye saying the keeper owed them (can’t remember how much) because the driver had stayed for 1 hour 20 minutes. The letter had two timestamped photos of the front and rear of the car taken as the car entered and exited the car park. The letter was thrown in the bin. Nothing more happened until out of the blue the keeper got a County Court Business Centre Claim Form three weeks ago.

The keeper registered with MCOL and put in the AOS. The claim issue date was 31st October so calculate that the defence has to be done by Sunday (3/12). I have spent the last couple of weeks off and on trying to work out a defence but am going round in circles. I’ve also just seen the advice to post the defence so presumably I now only have three days to get something together.

Parking Charge Details (from the ParkingEye online portal)

Parking Charge Reference: 098765/123456
Vehicle Registration Number: AB06XYZ
Contravention Date/Time: 07/05/2017 15:05:09
Contravention Location: The xxxxxx Working Mens Club Pay & Display, yyyyy Road, xxxxxx, ZZ1 1AA
Stay Duration: 1 hours 20 minutes
Allowed Duration: 0 hours 0 minutes
Paid Duration: 1 hours 0 minutes (£0.80)
Outstanding Balance: £175.00

Particulars of Claim

“Claim for monies outstanding from the defendant, as registered keeper, in relation to a Parking Charge, issued 11/05/2017, for parking on private land in breach of the terms and conditions (the contract). ParhingEye’s ANPR system, monitoring The xxxxxx Working Mens Club Pay & Display, yyyyy Road, xxxxxx, ZZ1 1AA, captured vehicle AB06 XYZ entering and leaving the car park, parking without a valid ticket. The signage, clearly displayed at the entrance to and throughout the car park, states that this is private land, is managed by ParkingEye Ltd, and is a paid parking site, along with other T+C’s by which those who park on site agree to be bound. In accordance with the T+C’s set out in the signage, the Parking Charge became payable. Notice under the Protection of Freedoms Act 2012 has been given under Sch 4, making the keeper liable. This claim is in reference to Parking Charge(s) 098765/123456.
Signed Rosanna Breaks (Claimant’s Legal Representative)”

They are claiming £100 plus £25 court fee plus £50 costs.

My thoughts on the defence.
• The car park is also used as the entrance to some private garages plus the club’s own private car park. How do they know the driver wasn’t parked for an hour and then left the car park for one of these?
• I don’t know how much leeway you’re allowed but I assume it’s less than 20 minutes?
• No Notice to Keeper issued
• Has POFA 2012 been complied with?
• They haven’t identified the driver
• Their costs are too high
• Pre action protocol not followed

I’ve read the Newbies Post #2 but I’m really unclear as to where I stand with this and I must admit to being confused over all the legal arguments I have seen (e.g. forum threads 5591251 and 5729157)

Sorry to be so rubbish but I think it confirms why I would never make a lawyer!

Thanks in advance.

KeithP

If your defence is due on a Sunday, you have until 4pm on the Monday to submit it.

It can be emailed. Probably the most straightforward way and gives you a little extra time.

You would be wise to never reveal any clues to the driver's identity.
To that end, perhaps your second paragraph should start:

In early May my wife’s car was parked in a Working Men’s Club car park. The driver entered her car’s number plate...

Please edit your post.

Redx

as above

your defence points allude to POFA2012 and not identifying the driver

yet post #1 looks like a witness statement on behalf of the claimant

stay as THE DRIVER and THE KEEPER when on the internet

GT6

Thanks KeithP and Redx - I've hopefully made the right edits as you suggest.

Redx

edit post #1 to remove the reference details etc

and your calculation must be 03/12 , not 03/11

GT6

Whoops! Thanks made the change to 3/12.

The references, car reg, address, etc are all fabricated.

GT6

Hi

Here's my draft defence. A big, big thanks to whoever did the original - thank you for allowing me to make use of it.

Is ccbc@hmcts.gsi.gov.uk the correct address to email the final PDF to?


IN THE COUNTY COURT
CLAIM No: CXXXXXX

BETWEEN:

PARKINGEYE LTD (Claimant)

-and-

Dxxxx Lxxxx (nee Dxxxxxx) (Defendant)

________________________________________
DEFENCE STATEMENT
________________________________________

I, Dxxxx Lxxxx (nee Dxxxxxx) am the defendant in this case, and I intend to deny this claim in its entirety. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all.

1) a) The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. The claimants ‘particulars of claim’ are nothing more than the terms of a private car park, they do not state what, if any, contravention did occur. The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail.

b) There was no ‘Letter before County Court Claim’ under the Practice Direction. This is a speculative serial litigant, issuing a large number of identical 'particulars', with the signature of ‘Rosanna Breaks’.

2) This is a pay and display car park with a VRN to be input on a keypad. I put the Claimant to strict proof that there was no payment made because there is no evidence of any contravention whatsoever. Mere ANPR photos of a car arriving and leaving is no proof of whether a tariff was paid or not and the burden remains that of the claimant to prove their case.

3) The car park gives access to land not covered by the Claimant’s contract. I put the Claimant to strict proof that the vehicle was parked for the whole duration claimed by the Claimant and that the vehicle had not exited the car park to access this land.

4) The claimant did not issue a valid notice to keeper. The claimant did not comply with the Protection of Freedoms Act 2012 and give the registered keeper opportunity at any point to identify 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 (where no notice to driver has been served (e.g. ANPR is used)) not later than 14 days after the vehicle was parked.

No notice to keeper was sent within the 14 days required to comply with POFA 2012 only a speculative invoice which was sent outside of the 14 day period, which did not comply with POFA 2012. This would exclude the registered keeper being liable for any charges. The following are some of the reasons the speculative invoice was not a notice to keeper and did not comply with POFA 2012.

a) It was not a notice to keeper but a “Parking Charge Notice” as detailed in the title of the invoice.

b) It did not advise that the driver is liable for the parking charge and that it has not been paid in full.

c) It did not warn the keeper that if the parking charges remains outstanding after 28 days and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper. 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) is the sum on the Notice to Keeper. They cannot conceive a new charge when neither the signs mentioned a possible £175 for outstanding debt and damages.

d) It did not invite the registered keeper to pay the outstanding parking charge or, if she was not the driver, to provide the name and address of the driver and to pass a copy of the notice on to that driver. Given the passage of time, I can neither confirm nor deny the name of the driver on the day. I put the claimant to proof of that identity.

e) It was a speculative invoice titled “Parking Charge Notice” and not a notice to keeper and was not sent within the 14 day period to comply with POFA 2012 even if it was deemed to comply with POFA 2012 (which it did not).

I put to the claimant for proof that they contacted the DVLA for details of the registered keeper within 14 days of 11/05/2017. It is DVLA guidelines that they should request this information 7 days prior to the date the notice has to be issued.

I also put to the claimant strict proof that they complied with POFA 2012 in issuing a valid notice to keeper to pursue a claim to the registered keeper and a copy of any notices or letters.

5) The Defendant believes that the Claimant have artificially inflated this claim. The claimant has added unrecoverable sums to the original parking charge. They are claiming legal costs when not only is this not permitted, but the Defendant believes that they have not incurred legal costs as the Defendant has the reasonable belief that the ‘Rosanna Breaks’ is an employee of the Claimant (she is listed as an employee of the Claimant on the Law Society website) and is remunerated by them and that the particulars of claim dated 31 October 2017 are templates, so it is not credible that £50 legal costs were incurred and hence cannot charge the standard £50 fee. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. If the claimant alleges that this is the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the claimant's business plan.

6) 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 case. 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.

7) The Beavis also 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.

In this Claimant's case, they have no cause of action in any case due to their choice not to use POFA Schedule 4 wording, and unlike some other parking firms this means I am not liable in law. 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 believe the facts contained in this Defence Statement are true.

Signed

Date

KeithP

GT6 wrote: »

Is ccbc@hmcts.gsi.gov.uk the correct address to email the final PDF to?

I would suggest ccbcaq@hmcts.gsi.gov.uk is a better address.

(from: https://courttribunalfinder.service.gov.uk/courts/county-court-business-centre-ccbc)

Redx

and dont forget that it has to be signed and dated at the bottom

so print , sign and date it , scan back to pdf , attach to email with MCOL ref and name in the header plus your details and MCOL ref in the main email comments too

[Deleted User]

FWIW in-house legal teams still constitute solicitor costs not overhead. However whether charges are reasonable/recoverable is a separate issue.

If it were me I'd amend 1b and 5. I think the case law you cite is against you on the point of principle.

GT6

OK thanks I hadn't realised that employed solicitors' costs were allowable. I'll remove 5 (and 1b as it's not material).