County Court defence help

GT6

Thanks to everyone for the helpful advice. If there are no other comments, I will finalise the statement and will send it off later by email.

________________________________________
DEFENCE STATEMENT
________________________________________

I, xxxxxxxxxx (nee yyyyyy) 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) 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.

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) 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.

6) 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.

nosferatu1001

Theyre allowable, but you challenge them to show it was £50 worth of time
Parking Eye issue 30000 claims a year. If they work full time thats about 5 minutes per claim.

GT6

Thanks to @KeithP, @Redx, @Johnersh and @nosferatu1001 for all your help.

I've added a para about costs and also signage.

I'm planning on sending it off soon so here's the final draft.

________________________________________
DEFENCE STATEMENT
________________________________________

I, xxxxxx (nee yyyy) 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) 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.

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 (“POFA”) Sch 4 para 8 and 9. The claimant did not give the registered keeper opportunity at any point to identify the driver. A Notice to Keeper can be served by ordinary post and the POFA 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 only a speculative invoice which was sent outside of the 14 day period, which did not comply with POFA. 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.

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 even if it was deemed to comply with POFA (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 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 claimant has added unrecoverable sums to the original parking charge. The Defendant believes that they have not incurred such 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 are templates issued frequently. It is therefore not credible that £50 costs were incurred.

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 British Parking Association (“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) 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.

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.
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.
Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver.
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.
The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

BPA CoP breaches - this distinguishes this case from the Beavis case:
the signs were not compliant in terms of the font size, lighting or positioning.
there is / was no compliant landowner contract.


8) 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.

nosferatu1001

The Beavis case also confirmed...

GT6

I've just noticed that the surname on the N1 is incorrectly spelt. Presumably immaterial - and anyway too late as AOS and Defence both put in?

nosferatu1001

Immaterial. Slip,rule.

GT6

Hi

I have now got the directions questionnaire through. If I want to attend court with keeper in order to help on the day, should I say two witnesses at D3 or just one?

Thanks

Umkomaas

GT6 wrote: »

Hi

I have now got the directions questionnaire through. If I want to attend court with keeper in order to help on the day, should I say two witnesses at D3 or just one?

Thanks

Just please clarify:

If this case is against the keeper, why are you saying anything in the court papers?

You can’t just rock up in court and ‘help’. If you want to officially help, you must do it as either a McKenzie Friend or a Lay Representative - check them out on Google. You will need to inform the usher on arrival and seek permission from the judge as the case commences.

Unless you are providing witness evidence, you will not be a ‘witness’.

GT6

@Umkomaas I'll Google these and do as you say. Thanks!