Scs law lbc by ukpc

Honey-Dee

With an Issue Date of 20th July, you have until Wednesday 8th August 2018 to complete the Acknowledgement of Service to buy yourself an extra fourteen days to prepare your Defence.
No need to delay doing the AoS - do it anytime before 8th August.

Having done the AoS, you will then have until 4pm on Wednesday 22nd August 2018 to file your Defence.

That's over three weeks to hone your Defence to perfection, but please don't leave it until the last minute.


When you are happy with the content, your Defence should be filed via email as described here:

1) Print your Defence.
2) Sign it and date it.
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here.

Thank you so much. I have started my registration on MCOL.

I appreciate all your help.

Honey-Dee

Here is my defence, not sure if i have done it right. It is mostly due to unfairness:

Claim Number: ********
BETWEEN:
UK Parking Control Ltd
vs
*******

___________________________________________________________________________
Defence Argument
I am ****** of *******defendant in this matter.

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.

i. The Unfair Terms in Consumer Contract Regulations 1999 applies
ii. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
iii. The Claimant has no standing to bring a case



i The Unfair Terms in Consumer Contract Regulations 1999 applies
It is asserted that the Claimant!!!8217;s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties!!!8217; bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.

The 1st parking ticket that was issues on the 11/11/15 was issued unfairly. A message was left on my car explaining that !!!8220;the ticket office was not opened yet due to staff shortage and they would be opened at 12noon. I would bring the ticket once purchased after 12!!!8221;. The parking attendant decided to ignore the warning despite explaining that the ticket office was closed for the morning.
During my break, I rushed to the ticket office, purchased the ticket and rushed back to my car, when I got there; the penalty was already issued at 11:09am.
I have attached a proof of purchase of parking permit for this date.

The 2nd ticket issued unfairly was issued on 04/12/15 for not displaying my permit, it the attendant had taken time to check if I had a permit, he would have found that I currently held a valid permit at the time of parking. I had to use a replacement vehicle on the day before and left my permit in the borrowed vehicle accidentally, however, I had a valid permit but not displayed at the time. The attendant could have called the permit office to find out if I held a valid permit but he or she chose not to as it was easier issuing me with a ticket instead.

The 3rd and 4th tickets issued on the 23rd and the 24th of December 2015 respectively were both issued unfairly. My car was left overnight at the same spot due to the Christmas season from the 23rd to the 24th. When I got there at the end of my shift the following day the 24th? I found a penalty ticket on the floor and another on my car. I picked the one on the floor to check it in order to stick it on the right car as there were other cars at the parking lot. When I opened the ticket, I found it was issued for me the day before and I also got a new one for the day. There was only one explanation for this. The initial ticket was taken off maliciously to apply a new one to the car as it has not been moved at all. UKPC photographic evidence would reflect this.
These behaviours show that UKPC is a company that does not comply or work according to the BPA AOS code of conduct. It has been found that they work in a brutal way and prey on the vulnerable. I also held a valid parking permit for the 24th which would reflect in the evidence I have attached to this defence. I had a scratch card for the 23rd which had slipped off to the chair as I parked. It the parking attendant had input my number in his machine; he/she would have seen that I had a valid permits for these days.

The 5th ticket was issued unfairly on the 18th of February 2016. The ticket stated car was parked where no parking is allowed. This is a blatant lie. If you look at their photographic evidence, you will see that there are a lot of vehicles parked at this parking lot. This is an unmarked parking lot and it has permission for staff to park in it. It is as simple as that.

The 6th unfair ticket issued unfairly by the UKPC was on the 29/03/16. The back tyre of my vehicle was not even on the yellow line, it was only my bumper and this was very slightly over the yellow line. The photographic evidence the claimant provided would reflect that the area of the yellow lines were still wet with muddy water and this made it difficult to see when I parked earlier that morning.

The 7th ticket that was issued on the 21/06/16 was issued unfairly, clearly the small car in front of my car had parked on across 2 bays obviously because it is such a tiny car and instead of taking up the whole bay, sometimes the smaller cars do this to help create an additional space. If anything, we created a spare space for an extra car. Despite having a valid permit and creating an extra space, a ticket was issued. Ticket was only meant to be issued if someone has been denied a parking space due to an unreasonable parking. This is what we staff understands amongst ourselves and we do to help create an additional space.


1. The European Court of Justice case of Aziz v Caixa d!!!8217;Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test for unfairness and imbalance in that case is as follows (para 77);

Article 3(1) of Directive 93/13 must be interpreted as meaning that:

!!!8211; the concept of !!!8216;significant imbalance!!!8217; to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out!!!894;

!!!8211; in order to assess whether the imbalance arises !!!8216;contrary to the requirement of good faith!!!8217;, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.

2. It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £120 as a consequence of staying in a space that they believed they have already paid for if they had the opportunity to negotiate the contract on equal terms with the other contracting party. The landowner collected money from the staff and in return, they should have created/provided enough spaces to park.

3. The Claimant relies on the Court of Appeal judgment in the case of ParkingEye v Beavis. However, in that case the court applied the wrong test for imbalance (para 34 and also para 37, 38)

The judge [!!!8230;] held that the term did not cause a significant imbalance in the parties' rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park.

4. It is submitted that the European Court of Justice definition of imbalance must take precedence.


ii The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies

5. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

6. The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.

7. The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.

8. The regulations define an on-premises contract as:
!!!8220;on-premises contract!!!8221; means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;

9. Thus a contract cannot be on-premises if it is a distance contract. The regulations define a distance contract as:
!!!8220;distance contract!!!8221; means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

10. This is clearly an organised service-provision scheme (for parking)
The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

11. This is therefore a distance contract.

12. None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.

13. Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2 or a means to have a copy of the contract on a durable medium. Accordingly, 13.1 states the contract is not binding on the consumer.


iii The Claimant has no standing to bring a case

14. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the contract which it is alleged broken and provided by the claimant was an expired one.

15. The claim form states that the land is !!!8216;managed by UKPC!!!8217;. They are therefore acting as agents of the landowner.

16. The Claimant!!!8217;s has not provided valid copies of the alleged contract in the letter before claim or particulars of claim. However it is believe the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; !!!8216;UKPC is authorised by the landowner to operate this private car park on its behalf!!!8217; and !!!8216;Parking is at the absolute discretion of the Landowner!!!8217;.

System

Is this the car park where they are putting back barriers as UKPC have been left to run riot and interfering with the proper working of the hospital. As such the tickets issued had no "legitimate purpose".

If not the Cumberland then refer to it and "the proper working of the hospital" and no "legitimate purpose".

bargepole

Honey-Dee wrote: »

Here is my defence, not sure if i have done it right. It is mostly due to unfairness:

Not even close, I'm afraid.

It should be headed 'Defence', not 'Defence Argument'.

It should be written in the third person, eg 'the Defendant denies ...' etc. Words like I, me and you should not appear anywhere apart from the Statement of Truth at the end.

You do not attach evidence to a Defence. That comes at a later stage, when the Court asks for your Witness Statement.

The UTCCR argument was lost in the Beavis case. So delete paras. 1 to 4.

The CCR2013 argument has been tried in many different courts and failed. Particularly so when the PPC has an operative on site, it is not regarded as a distance contract. So delete paras. 5 to 13.

Focus on the facts first, that for many of the PCNs you were unable to purchase a ticket - Google 'frustration of contract', and in other cases the contravention was trivial - Google 'de minimis non curat lex'.

Then go into the detail of the fact that their contract does not appear to cover the relevant period, hence they have no standing to bring this claim.

bargepole

Here you go, try this version:

IN THE COUNTY COURT

Claim Number: ********

Between:

UK Parking Control Ltd

(Claimant)

-and-

*******

(Defendant)

_________
Defence
_________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the Defendant was, at all material times, employed as a XXXXX of XXXXX NHS Trust, working on the site at XXXXXX Hospital. The situation with staff parking is that staff pay for parking permits on a monthly, quarterly or annual basis. There is a parking office on site, however the opening hours of the office do not align with staff shift start and end times, and the number of parking bays provided is frequently less than the number of staff working at any given time. As such, the parking scheme for staff is unfit for purpose.

3. The XXXXX NHS Trust, by accepting payments from staff for parking permits, and then failing to provide consideration in the form of available spaces, are in breach of their primary contract with their employees. The breach is exacerbated by their employment of a third party - the Claimant in this case - to issue penalty notices to staff vehicles. Such notices arise due to illegality, and the principle of ex turpi causa non oritor actio applies.

4. The Claimant's charges, arising from tickets issued on various dates between November 2015 and June 2016, were frequently issued in circumstances where the purported contract between the Claimant and the Defendant (which is denied) was frustrated due to impossibility of performance, or in other cases was so trivial as to be unworthy of the Court's time, under the de minimis principle. Detailed evidence of the circumstances of each of the seven charges will be provided by the Defendant at the appropriate stage in these proceedings.

5. The Claimant has, in pre-action correspondence, provided the Defendant with a redacted copy of the contract between itself and the XXXXX NHS Trust. The start date of the contract is 1 January 2014, and its end date is 31 March 2015. All of the incidents which are the subject of this claim, occurred after the end date of the contract, and therefore the Claimant has no locus standi to litigate in this matter.

6. The contract also states that the Claimant must abide by the British Parking Association's Code of Practice. An essential element of that Code is that parking operators must have authority from the landowner of the site on which they operate, to issue parking charges, and to enforce such charges by means of litigation. The Claimant in this case is in breach of the Code, which was held by the Supreme Court in Beavis to have the equivalent of statutory authority for practical purposes.

7. in summary, it is the Defendant's position that the Claimant's claim is misconceived, tainted by illegality, and attempts to recover sums which it has no standing to attempt recovery of. The Court is invited to dismiss the claim in its entirety.

Statement of Truth

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

Name
Signature
Date

System

try this version:

Impressive. You've done this in 7 paras whereas the earlier one was 10. Wonder if we can get this down even further

Honey-Dee

Thank you all. I will try this version and hopefully I can get it down to 5 paragraphs.

bargepole

Honey-Dee wrote: »

Thank you all. I will try this version and hopefully I can get it down to 5 paragraphs.

That was a tongue-in-cheek remark.

Do not change any of it.

Honey-Dee

That was a tongue-in-cheek remark

Oh oh.... ok thank you.

Honey-Dee

6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here.

Hello all
I have the Direction Questionnaire, what do I do next please?
Thank you.