Help please - Formal Demand Letter from CPM

Amaka123

So, I've read all the comments (thanks) and I have amended my defence section 7 as Redx suggested. My Claim form states it is claiming £100 for the PCN, £60 contractual costs and the rest is interest. Total £179.41 with an extra £25 court fee and £50 legal representative's costs - Grand Total amount £254.41.

Just want to check that section 7 makes sense with regards to the above costs being claimed against me?

So is my defence now strong enough? Could I add anything or expand/clarify anything to make it stronger? Or shall I go ahead and submit it?

Thanks in advance.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

3. The facts of the matter are that the ‘land’ which forms the basis of the current claim consists of a street which changes from a ‘public’ road to a ‘private’ road part way up the street. There are no signs indicating when the switch from public road to private road takes place. Further up the street (of which the defendant did not pass) there are a relatively small number of poorly marked ‘parking conditions’ signs. Given this lack of clarity regarding how or where the public is, or is not, allowed to park on this street, and whereby it switches from ‘public’ road to a ‘private’ road no contract can be construed from the Claimant's signage, under the contra proferentem principle.

4. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

5. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. The Defendant didn’t actually drive past any of the Claimant’s signage where they parked. The closest sign to which the Defendant parked is placed at a low height and given that the street is often full of parked vehicles the sign would be obscured from view of any passing driver. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

7. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. In addition to the original PCN penalty, for which liability is denied, the claim includes an additional £60, for which no calculation is given but is described as ‘Contractual Costs', and which appear to be artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred these costs.
7.1 In the alternative it was held in the Supreme Court in Beavis (where £85 was claimed and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters.
7.2 The claimant may try to rely upon Parking Eye Ltd v Beavis (2015) UKSC 67 however, with no ‘legitimate interest’ excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail.

8. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Statement of Truth:

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

Name
Signature
Date

Amaka123

Hi

Is anyone able to look over my draft defence please?

Thanks

Le_Kirk

I think you should refer to the two recent cases (IOW and Southampton) where District Judges struck out the claims due to abuse of process. Your thread has been discussing this and, whilst it was suggested by Johnersh that it shouldn't have the whole detail in there, he agreed it would be wise to refer to it. Search the forum for Abuse of Process and the thread by beamerguy with comments on post # 14 in that thread by Coupon-mad.

Amaka123

Thanks I'll do that, I think I may have been looking at the wrong post before.

Something I have been thinking about overnight - I have never admitted to being the driver of the car (as stated in my defence), however, when it comes to witness statement and evidence I would like to do a video of driving down the road and exactly where I turned/parked to show that I didn't pass a single parking conditions sign. If I do this though, had I may as well just admit to being the driver (as if I wasn't the driver, how would I know how I turned around in the road/where I drove?).

Can anyone advise on this point? thanks

Amaka123

Also cars are literally always parked where I did on this street - any day I go I will see cars parked in the exact space. Does it help my defence to take photo evidence of this on various days - in that it shows that no one else has any idea that they can't park here either (due to the lack of/terrible signage)!?

Le_Kirk

Amaka123 wrote: »

Thanks I'll do that, I think I may have been looking at the wrong post before.

Something I have been thinking about overnight - I have never admitted to being the driver of the car (as stated in my defence), however, when it comes to witness statement and evidence I would like to do a video of driving down the road and exactly where [strike]I[/strike] THE DRIVER turned/parked to show that [strike]I[/strike] THE DRIVER didn't pass a single parking conditions sign. If I do this though, [strike]had[/strike] I may as well just admit to being the driver (as if I wasn't the driver, how would I know how I turned around in the road/where I drove?).

Can anyone advise on this point? thanks

You could be a passenger in the car, either at some future time for checking or you might have been passenger in the car on the day of the alleged parking issue.

Amaka123

OK, I have used the long version about Abuse of process - so my section 7 and 8 of my defence have been changed. This is my final defence draft - is it good to go? Should I wait and submit it nearer the deadline or just submit it now? Thanks for all help so far.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

3. The facts of the matter are that the ‘land’ which forms the basis of the current claim consists of a street which changes from a ‘public’ road to a ‘private’ road part way up the street. There are no signs indicating when the switch from public road to private road takes place. Further up the street (of which the defendant did not pass) there are a relatively small number of poorly marked ‘parking conditions’ signs. Given this lack of clarity regarding how or where the public is, or is not, allowed to park on this street, and whereby it switches from ‘public’ road to a ‘private’ road no contract can be construed from the Claimant's signage, under the contra proferentem principle.

4. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

5. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. The Defendant didn’t actually drive past any of the Claimant’s signage where they parked. The closest sign to which the Defendant parked is placed at a low height and given that the street is often full of parked vehicles the sign would be obscured from view of any passing driver. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

7. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. In addition to the original PCN penalty, for which liability is denied, the claim includes an additional £60, for which no calculation is given but is described as ‘Contractual Costs', and which appear to be artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery.

7.1. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

7.2. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal/contractual fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

7.3. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

7.4. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

7.5. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

7.6. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

7.8. Judges have disallowed all added parking firm 'costs' in County courts up and down the country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing.

7.9. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

7.10. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

8. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.


Statement of Truth:

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

Name
Signature
Date

Le_Kirk

Your point 7.6 seems to be a repeat of 7, otherwise it has all the usual points.

Amaka123

Thank you Le_Kirk. I will remove point 7 and get my defence submitted early next week.

KeithP

Don't rush this step.

Remember...

...you have until 4pm on Monday 19th August 2019 to file your Defence.

That's still over three weeks away. Lots of people will be outside in this good weather, especially at weekends, and looking a Defences may be the last thing on their mind.