Judgement for Claim (in defalult) - PCM & Gladstones

claxtome

Slight typos in red:

2.3. If the Notice to Keeper was not issued within 14 days, then the Claimant is required to prove who the driver of the vehicle was at the time of the alleged incident. I have no recollection of ever parking at the location of the alleged incident. The vehicle that I am the Registered Keeper of, can be driven by other insured adults and is on this occasion was driven by other adults with their own comprehensive insurance. I submit that the Claimant cannot provide such evidence of the identity of the driver. I further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

Not sure it is recommended to use this argument post Beavis case:

2.5.2. No Loss Suffered by Claimant: Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which I am the Registered Keeper. I further submit that any loss to the landholder (which would be the only party able to claim such losses) would be at most a few pounds.

MORB

Claxome - thanks for the comment, but the sentence was intended to read as:

"The vehicle that I am the Registered Keeper of, can be driven by other insured adults and is on occasion driven by other adults with their own comprehensive insurance."

Re: the 'No loss' paragraph, I recently saw the above endorsed as advisable to submit as a defence on this forum.

Is it the consensus that this paragraph be removed?

Coupon-mad

I recently saw the above endorsed as advisable to submit as a defence on this forum

...in an old post dated pre-Beavis case, 2015 or older, we assume? It has no legs. Don't read old posts.

claxtome

"The vehicle that I am the Registered Keeper of, can be driven by other insured adults and is on occasion driven by other adults with their own comprehensive insurance."

Knew it needed editing. Makes sense now

MORB

Coupon-mad/Claxtome: was actually post Beavis, but on re-read you advised OP to remove, they seemingly forgot, submitted and were successful with getting a set aside and dismissal of original claim anyway!! :-)

I have removed the para, made a few additions and for the sake of completeness, here follows the new edited draft:

---

Claim No. XXXXXXX


In the Matter of:

Parking control management ltd (Claimant)

-v-

XXXXXXXX (Defendant)

_____________________________________

Witness Statement
_____________________________________



I am XXXXXXXX and I am the Defendant in this matter.

This is my supporting Statement in support of my application dated 19th Dec 2017 to:

* Set aside the Default Judgement dated 20/11/17 as it was not properly served at my current address;

* Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;

* Order for the original claim to be dismissed, or to be re-heard at a new hearing;

* Order to stop any enforcement applications by the claimant pending the set aside hearing.


1. Default Judgement

1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 20/11/17 , However, this claim form was not served at a current address and I thus was not aware of the Default Judgement until I requested my residual mail from a resident of my previous address.

1.2. At the time of the County Court Judgement I was travelling in South America and was of no fixed abode. As Parking Control Management Ltd (hereon referred to as PCM) !had received no correspondence from me and I had not responded to the court summons, I believe they had reasonable cause to question whether they were using an accurate address. Further endeavours should have been reasonably undertaken to discover I was no longer residing at said address.

1.3. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s current and correct contact details. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. This is a topical issue: I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” He added:
"It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address."


1.4. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.


1.5. I have also not received any previous documentation from the Claimant (as requested) in this matter and I thus was never able to properly challenge the Claimant’s claim. This is despite my best efforts as noted below.


1.6. Having discovered Default Judgement court papers contain no details of the alleged incident and I do not know what the Default Judgement relates to. I not confident that I know what vehicle this relates to.


1.7. I attempted to contact the Claimant via phone number on their website more recently (Dec 2017). I was not able to get through to a member of the Claimant’s staff to discuss the matter as they have an automated phone system that does not allow you to talk to an advisor without inputting a numerical code. As I had never received any return communication from them I do not have such a code. There is no alternative means of contacting them provided. I am still without further detail having established no other correspondence was delivered to the same, at my old address. I have immediately responded to the discovery of the Judgement against me and have given the Claimant adequate time to provide the requested information but they have not done this. This means as the Defendant, I still do not have adequate details of the incidents the Claimant alleges have taken place and had long ago reasonably concluded that the claimant ceased their claim. As such I left the country believing the matter was at an end due to no further correspondence after the initial requests for compliant particulars of
Claims many months ago (May 2017)..


1.8. Considering the above I was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.










2. Order dismissing the Claim


2.1. I have received no documentation regarding what vehicle this alleged contravention relates to, thus do not even know that I am in fact the Registered Keeper.

2.2. The Claimant, PCM have not proved that the alleged incident relates to a vehicle for which I am the Registered Keeper. Further to this, even then any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. This includes the requirement to issue the Notice to Keeper within 14 days of the alleged incident. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, or indeed after, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

2.3. If the Notice to Keeper was not issued within 14 days, then the Claimant is required to prove who the driver of the vehicle was at the time of the alleged incident. I have no recollection of ever parking at the location of the alleged incident. The vehicle that I am the Registered Keeper of, can driven by other insured adult and is on occasion driven by other adults with their own comprehensive insurance. I submit that the Claimant cannot provide such evidence of the identity of the driver. I further submit that the Claimant does not include ‘Protection of Freedoms Act 2012’ wording on the Parking Charge Notices they issue and therefore cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.


2.4. If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a “Parking Charge Notice’’, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

2.5. I further submit that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons:

2.5.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car park in question, and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass.


2.5.2. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.

2.5.3. No contract with the claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to PCM.

2.6. In order to make informed decisions and statements in my defence as keeper of a vehicle, I will require copies of all paperwork, photographs relating to contraventions and pictures of all signs from the Claimant.

2.7. The Protection of Freedoms Act 2012 does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Also any interest added due to claimant failure to provide the right address of the defendant need to be cancelled.

2.8. The government have put in place a mechanism whereby liability can be transferred from driver to keeper, under the Protection Of Freedoms Act 2012, sch 4. The claimant has made the conscious decision not to avail themselves of this legislation and use a notice to keeper which fails to comply with 8.1, 8.2a, 8.2c, 8.2f, 8.8b, 9.2.a, 9.8b of the Act.

2.9 On the other hand it is believed that the Claimant may seek to rely on a rather
unique interpretation of the judgement in Elliott -v- Loake which is different from this case.

2.10 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.

2.11. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

Statement of Truth:
I believe that the facts stated in this Witness Statement are true.
Full name:
Dated:
Signed:

Coupon-mad

That should be OK as long as it doesn't talk about 'no loss' (must admit I only skim-read).

claxtome

Reads ok to me.

MORB

Thanks folks - will get it sent and keep you updated on progress.

Merry Christmas!

MORB

Hi all - Haven't sent this away as yet due to few family issues and the intervening chaos over the holidays. I'm just rechecking and wanted to ask whether I should/can leave 2.5.2 in the submission for set aside given clause 2.10 or should I remove all together?

I'm not entirely clear as to why the proportionate loss argument no longer stands given, as I understand, that statute still supports this and the Beavis case was very specific?

Appreciate all the forthcoming and previous time and experience being shared here.

Coupon-mad

Remove it, because it just does not have legs any more, even where the facts differ from Beavis:

2.5.2. Claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.