County court letter assistance

Logblahar

I know you all must be sick of newbies.....I would like some assistance please with a PCN and court claim.

On 05 January a Notice of Pending Court Claim was received ( dated 22 December) Nicely over the Christmas period. Where I had been away at family. Prior to this I had received nothing.
The letter stated that they had sent a letter before claim on 27 November 2017 which I had not received.
The notice is for a PCN from Oct 2016 for a vehicle that I am the registered keeper. The vehicle is used by other friends and family too.
The contravention description being Parked without purchasing a valid pay and display ticket at a well known retail park in Keighley.

I checked my time sheets at work and on the date in question I was working some 20 miles away from the contravention location. ( I have now been able to get pictures from the cctv system at work on the date showing me entering the place of work at 10.00, walking around the facility at 1410 (23 mins) after the so called contravention and leaving work at 1800 when my shift ended.
I have got no correspondence at all from the parking company just the ones from the legal company and county court business centre?

I have now received a claim form from the county court business centre on 09 Jan and 3 days later a notice of county court claim issued form from the legal company
I called the legal company explaining my situation and they did not want to know and just told me that they can't help and I need to call the county court business centre. Tried about 30 times and just either rings and cuts off or does not connect.

I have gone on money claim and completed the AOS and left evidence blank. That's it.

The parking company is no longer at the car park in mention and the signs etc have gone and another company is in situ. So I have no evidence of bad signage.

I could now do with some guidance on where and what to do please? Thank you.
I will try and uploads the letters I received.

waamo

At the top of this board is a thread that tells Newbies to read it first. Post 2 of that thread contains a whole guide to the court process including examples of defences.

Logblahar

I have been reading the newbies thread over and over and reading many threads. I am still trying to get my head around the whole thing. Are there any posts in particular that I should be looking at in connection with my defence? Sorry if I am missing something but my head is spinning with so much information.

waamo

First don’t panic. Take the weekend to read it multiple times. It takes an awful lot of digesting so don’t expect to get it in one sitting, that takes some doing.

When you’ve read it multiple times (don’t overload yourself) then ask about the points you are stuck on.

Logblahar

Should I be sending a LBC rebuttal letter in ? again, as far as I can see, this should be used prior to receiving the court claim papers, which I already have!

Logblahar

I will keep researching and I am sure I will have many questions. Many thanks

waamo

Logblahar wrote: »

I will keep researching and I am sure I will have many questions. Many thanks

That ship has now sailed. You need to acknowledge the claim but do not enter a defence at this point. Do not put anything whatsoever in the defence box but tick the box that says you intended defending the claim. That buys you extra time to come up with a strong defence.

Quentin

Logblahar wrote: »

Should I be sending a LBC rebuttal letter in ? again, as far as I can see, this should be used prior to receiving the court claim papers, which I already have!

Yes, too late to rebut the lbcca

Concentrate on constructing the defence

Logblahar

So after reading the newbies threads many times and it's associated info I have put together the following: I am sure it needs a lot of work but would appreciate your thoughts.

Defence



It is admitted that Defendant is the registered keeper of the vehicle in question.
However the Claimant has no cause of action against the Defendant on the following grounds:-

1. The Defendant was not the driver of the vehicle on the date in question. The Claimant is put to strict proof.
2. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict 'keeper liability' provisions.!
3. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
4. Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.
6. It is denied that the Defendant was the driver of the vehicle.
6.1. 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").
6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.2.1. There was a 'relevant obligation' either by way of a breach of contract, trespass or other tort; and 6.2.2. 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.
6.3. 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.
7. It is not admitted that on (said date) the Defendant's vehicle was parked at (said place).
7.1. The Claimant has provided no evidence, photographic or otherwise that the vehicle is indeed parked.


8. 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 landholder. 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.
9. The signage on and around the site in question was small, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was also formerly a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.
9.1 If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

9.2 Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

9.3 At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable. In other words, charging £100 for a period of time for which the 'agreed and published' tariff rate is £1/hour, would be perverse, contrary to the Consumer Rights Act 2015 and not a matter that the courts should uphold.

10 . It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Excel Parking Services Ltd.
a) Excel Parking Services Ltd is not the lawful occupier of the land
b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation initiating from 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 locus standi to bring this case.

11. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

12. The claimant has yet to respond to a letter of information request emailed by the defendant and sent to BW Legal and Excel Parking Services Ltd on the (date).
a) A request for proof who was driving.
b) Full particulars of the parking charges. Including all letters sent by the claimant including notice to keeper
c) A request to explain if Excel Parking Services Ltd are making a claim as an agent of the landholder or making the claim as occupier in their own right A request to explain if the amount claimed by Excel Parking Services Ltd is for a genuine pre estimate of loss for a breach of contract or a contractual sum?
d) A request to provide copies of the signs on which Excel Parking Services Ltd rely and confirm the signs were in situ on the date of the event. Also to provide the date the signs were installed.
e) A request to confirm that the signs were at the entrance to the site on the date in question. Also to confirm that the signs meet the British Parking Association's Code of Practice Appendix B (Entrance signs) or the Independent Parking Committee's Schedule 1.

13. There was no compliant 'Letter before County Court Claim', under the Practice Direction.
14. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-
a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

15. The Protection of Freedom Act 2012 Schedule 4 has not being complied with. The registered keeper is unaware of the PCN and was not the driver, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time/with mandatory wording.

16. The Protection of Freedoms Act 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. Even if they have been incurred, the Claimant has described them as "Legal representatives costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

17. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landholder can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landholder themselves claiming for a nominal sum.

18. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
In my opinion, there is a better alternative than legal proceedings, namely that we utilise the services of a completely independent Alternative Dispute Resolution service suited to parking charges. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent.

Therefore I ask the court to respectfully strike out this claim with immediate effect.
I believe that the facts stated in this Statement of defence, (date I intend to send) are true

Logblahar

Any advice on what I should be putting in my defence would be greatly appreciated.

Logblahar

There is so much information on the forum, which is fantastic. I have been taking bits from different threads and hopefully they are relevant to my defence. Please could someone have a look and tell me if what I have put down is correct? Or if not what I should be focussing on? I would really appreciate your feedback. Thanks