URGENT: County Court Claim

GolfR12

Please see my defence below. I have highlighted the parts I am unsure about in red along with my comments. I would really appreciate it if some could critique this for me.

IN THE COUNTY COURT
Claim No.: xxxxxxxx (all five claim numbers to be included)

Between

EURO PARKING SERVICES LTD
(Claimant)

-and-


xxxxx
(Defendant)

___________________________________________________________________________

DEFENCE STATEMENT
___________________________________________________________________________


Preliminary

1. Due to using a robo-claim automatic claim model with no human checks made regarding facts, evidence or overlap of similar cases whatsoever, this Claimant has, negligently and unreasonably, filed five separate claims about precisely the same matters, same facts, same vehicle, same car park, just different dates. If the court believes the claimant has set out a clear cause of action leading to a potential claim in law against this Defendant, in order to spare court resources and costs and under the doctrine of res judicata, the Defendant respectfully asks that there be only one hearing, to deal with all five repeated claims. Thus, the Defendant requests the cases are combined under Civil Procedure Rules 3.1(2)(g) and 3.1(2)(h) either by the CCBC putting the matter before a Judge in Northampton before/at the point of Allocation to track, or once allocated, by Order of the Defendant's local court Judge when issuing Directions.

2. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation. With respect to my scenario, all correspondence was returned to sender as gone away as I moved out of my family home for a period of time due to personal reasons. Shall I simply remove this sentence?

Background

4. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark xxxxxx which is the subject of these proceedings. The vehicle was insured with xxxxx Insurance with two named drivers permitted to use it. Furthermore, several drivers had access to this vehicle via their own Comprehensive insurance policies which allowed them to drive other vehicles with the consent of the registered keeper. I have added this bit in, is this ok?

5. It is admitted that on (dates), the Defendant's vehicle was parked at (location).

6. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
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 Defendant 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.

Authority to Park and Primacy of Contract

7. It is denied that the Defendant or lawful users of his vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

8. The Defendant avers that the operator signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
I am unsure of how to amend or if I should include this part at all as I do not know who the resident being visited by the driver of the vehicle was, I am unsure whether they still reside their and do not have access to any lease/tenancy agreements. I am struggling with this part the most. Any help would be much appreciated.

9. Accordingly it is denied that:
9.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.2. there was any obligation (at all) to display a permit; and
9.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms

10. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
10.1. The Defendant avers that the parking signage in this matter was, without prejudice to his primary defence above, inadequate.
10.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
10.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
10.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
10.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

11. The defendant was completely unaware that the site was being enforced by any restrictive terms. The Defendant parked legitimately in one of many unallocated visitor bays, used without penalty or charge by various visitors at the site. The residents and the Defendant shared the legitimate expectation of a continuing right of way and unfettered right to use the demised parking bays for visitors with no charge.

12. The Defendant has visited the resident regularly and has always enjoyed the right to park in the visitor spaces. Since there has been no variation of the residents' agreements, a Managing Agent cannot impose this charging regime via an onerous back door method of 'signs and permits' with charges imposed where parking was free. Points 11 & 12 seem to suggest that the defendant was the driver of the vehicle. Do I amend this to 'defendant or lawful users of his vehicle' or is this fine as it is the alternate defence?
12.2. The Claimant cannot be heard to point to their sparse/unlit signs, as if the Defendant should have known about some sort of purported 'contract'; they could have put up huge billboards with neon lights and still those terms cannot affect and override the primacy of contract of leaseholders in possession.

13. The Claimants present a significantly detrimental material change and provide no service that is for the comfort and convenience of the visitors; indeed the industry is made up of rogue operators whose modus operandi is to issue predatory, unfair tickets, then sue people under the excuse of the completely different Beavis case. On 2nd February 2018 in the second reading debate about private parking firms, the House of Commons unanimously concluded: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

14. For the avoidance of doubt, the Defendant has entered into no contract with any parking firm.

15. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

16. It is denied that the Claimant has any entitlement to the sums sought.

17. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

Any critique/help would be highly appreciated. Thank you guys in advance for all your help thus far.

KeithP

Is that your full name that I can see there?

GolfR12

No that was copy and pasted, cheers Keith :beer:

Any thoughts on the defence?

Coupon-mad

Bump for replies in the morning, if not email it to the CCBCAQ email address urgently, as a signed/dated attachment (obviously putting 'URGENT - defence re claim xxxxxxxxx' in the subject line).

GolfR12

Morning bump

nosferatu1001

Of course you do not identify the D as the driver, if the D was not the driver. If the D was not the driver you DENY that you were the driver in the opening, and in addition point out that there are AT LEAST 2/3/4/5/6/7 other drivers who had your permission to drive the vehicle for their own PRIVATE business (meaning you get it in early thatr CPS vs AJH films fcannot apply as the driver was not your Agent)

You cannot say they have not engaged in pre action if the letters were marked not known at this address. They tried, but wha tthey didnt do was try to find your ACTUAL address at the time.

GolfR12

Many thanks nosferatu.

Does anyone have any thoughts on points 7 and 8? Last two points that I am struggling with.

Fruitcake

Defence, not Defence Statement.

GolfR12

Cheers fruitcake.

Just to confirm points 11 and 12, am I just amending this to !!!8216;defendant or driver of the vehicle!!!8217; ?

Quentin

In 6 the defendant denies being the driver.

Thus when referring to what happened when the vehicle was parked you refer to what the driver did, not what you (the defendant) did