Metro Inn, Walsall

celfighter

Coupon-mad, thank you so much! I am getting to work on this right now. I will post my work shortly...

celfighter

I am going to submit this with my WS today, around 1pm. If there is anything to change I need to do it now. Thank you all for your contributions. I really appreciate all you have said to help me.

IN THE COUNTY COURT AT WALSALL
Claim No.: xxxxx
Between
xxxxxxx (Claimant)
-and-
xxxxx (Defendant)
01 November 2018
__________

DEFENCE
__________
The Parking Charge from xxx is an invoice with which I do not agree.
As previously stated to xxxx[claimant] (xx/11/2017), I confirm that at the time of this alleged incident, I was the vehicle’s registered keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA 2012”).
* In no way is the Defendant declaring himself as the driver of the vehicle. *

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Defendant received no ‘Notice to Keeper’ letter. The Claimant then raised their £100 parking charge to £200. It is submitted that this is merely a tactic to extract “double money”, and the Defendant is in any case not liable.
This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41
 
3) It is denied that there was a contract made between the Claimant and the driver through signage.
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.

3.1)BPA's Code of Practice (18.3) states:

"Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand."
The signs at this site are very inconspicuous. The font size used is too small and impossible to read upon entry in daylight (see exhibit #defence 1). [photo of car park and small sign]


3.2)BPA's Code of Practice (Appendix states:

"Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material."
The Car Park is not well lit at night and there is no direct lighting to the signs.
When arriving at the car park in which the alleged incident occurred it is impossible to see and read, let alone understand, the terms and conditions being imposed. Therefore, the driver did not have a fair opportunity to read about any terms and conditions involving this charge.
Relevant images have been requested and denied by the claimant.
3.3) Bearing the above in mind, there was categorically no contract established between the driver and Claimant. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. In the absence of any proof of adequate signage that contractually bound the Defendant, there can have been no contract and the Claimant has no case.
4. PCN sent to Defendant is not fully compliant with the Protection of Freedom Act 2012 and therefore no keeper liability can be established:-

Sch 4 Para9(2)(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given-

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.

4.1 The Claimant sent the first letter 106 days after the alleged incident took place. This does not comply with the strict wording required by POFA. The vital matter of full compliance was confirmed by parking law expert barrister Henry Greenslade in 2015.

The Defendant has not named the driver, and it cannot be assumed by the Claimant that the Defendant is the driver. After 106 days it is impossible to know who the driver was!
I put the claimant to strict proof that the Defendant is personally liable for this claim.

5. Please view the sign, used at the location: [closeup of sign]


I wish to make the following points:
5.1 It is a forbidding sign.
There is no offer to park. Therefore it cannot form the basis of a contract. The offer of parking is only made to permit holders and only permit holders could therefore be bound by any contract.
5.2 This is clear from several cases. In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.
5.3 In UKPC v Masterson B4GF26K6[2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.
5.4 In Horizon Parking v Mr J C5GF17X2 [2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

5.5 Lack of Prominence.
If the driver did not see the sign then the sign is not prominent. The charge of £100 is far from prominent.

o The BPA code of Practice Section 18 states that signs must be placed at the entrance to the car park and throughout the car park in a strictly prescribed format. This covers things such as the size of the sign, the size of the text and the text content itself.

o The way it is written suggests the rules are non-negotiable, such as; "you must also have a standard form of entrance sign" and "signs showing your detailed terms and conditions must be at least 450mm x 450mm".

o The Defendant contests the validity of these signs. Not prominent and missed.


6.The Claimants contractual authority to operate in the car park in which the alleged incident occurred has not been proven as required by the Claimants Trade Association's Code of Practice B1.1 which states:

"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."

6.1) In order to issue parking charges and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. It is believed Civil Enforcement Limited does not hold a legitimate contract at this car park; it has certainly not been proven.
6.2) There is no copy of the contract provided under the Pre-action Protocol.

As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner. Furthermore, no evidence of such authority has been supplied by the Claimant, and the Claimant is put to strict proof of the same, in the form of an unreacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. (This has been requested.)
A Managing Agent is not the Landowner.

7. Other Notes:

7.1 The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant’s position that no such breach occurred in this case, because there was no valid contract, and also because the legitimate interest in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

7.2 The Claimant, or their legal representatives, has added an additional sums to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

7.3 For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.

7.4 In the event the claim progresses, then as an unrepresented litigant in person, the Defendant reserves the right to alter, vary and add to this defence or reply to any further particulars of claim/documents the Claimant may provide.



Statement of Truth
I believe that the facts stated in this Defence are true.


(Defendant) xxxxxx



(Date) xx/xx/xxxx

nosferatu1001

Thats more like a defence!

A witness statement is a series of FACTS
Not arguments.

You need to either
1) Deny you were the driver
OR
2) State it was so long ago you cannot be sure who the driver was. It coudl have been ... or ... or ... etc as based on your insurance docs, plus anyone driving with your permission under "drive other vehicels" cover on THEIR insurance.

Start over

Youve even finished it by stating it was a DEFENCE!
You cannot be slapdash in this.

celfighter

nosferatu1001 Ive had to hand it all in now. Like I mentioned in a previous post, I had until 1pm today to get it done. The above IS a defence; my WS is in post #65
I have to hope its enough. These documents needed to be handed in not later than 14 days before the court date. I am going on holiday now and return a few days before all this happens.
sincerely...

nosferatu1001

The court clsoed at 4pm, so that was your deadline

Why did you refile your defence? No document asks you to do that, and thatys why I was confused.

Coupon-mad

What did you actually submit as evidence (photos, documents, transcripts of cases?).

If nothing, you have no evidence in! Hope you did provide evidence of some sort, it's not just about some words. Case law could be shoe-horned in with a skeleton argument a couple of days before the hearing but not photos now, so I hope you did something by way of evidence.

celfighter

I included plenty of photographs. Thanks for your help.

Coupon-mad

OK, have a nice holiday!

When you are back, a couple of days before the hearing, draw up a COSTS SCHEDULE and also take a wage slip with you or other proof of loss of leave/income, plus travel and parking to claim if you win.

celfighter

A few days ago I received an email from CEL telling me they wish to settle. Please view part of the email below.
"
In keeping with the Overriding Objective as set out in the CPR, we are we are willing to Settle the above Claim. If you wish to discuss this, please respond to our email, call us on 0870 919 55 77, or alternatively, provide us with a telephone number to contact you on. "

"
Surely this is an admission that they haven't got a leg to stand on?

Quentin

Ignore their request!