We’d like to remind Forumites to please avoid political debate on the Forum.
This is to keep it a safe and useful space for MoneySaving discussions. Threads that are – or become – political in nature may be removed in line with the Forum’s rules. Thank you for your understanding.
IMPORTANT: Please make sure your posts do not contain any personally identifiable information (both your own and that of others). When uploading images, please take care that you have redacted all personal information including number plates, reference numbers and QR codes (which may reveal vehicle information when scanned).
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
Defence - comments and advice please!
Badger18
Posts: 14 Forumite
Hi
I've got to the point in my case where I have received the claim form, completed Acknowledgement of Service, and my defence now needs submitting.
This is what I've put together so far, by looking at other defence statements on the forum and adapting to be relevant to my situation.
Do you guys need details of the situation that resulted in the PCN being issued in order to give me feedback?
Any comments or advice on this draft of my defence would be appreciated.
One thing I'm unsure of is whether to include 4) as I don't remember if the PCN was received within 14 days. Should I just exclude this?
In the County Court Business Centre
Claim Number: XXX
Between:
XXX (Claimant)
-and-
XXX (Defendant)
DEFENCE
I, the Defendant, am the registered keeper of the vehicle in question at the time of the alleged incident at XXX when the Parking Charge Notice (PCN) was issued. I assert that I am not liable to the Claimant for the sum claimed, or any amount for the following reasons:
No Contract
1) The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) which states:
"A copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim."
No indication is given as to the Claimants contractual authority to operate in the car park in which the alleged incident occurred 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."
1.1) 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 XXX does not hold a legitimate contract at this car park.
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. A Managing Agent is not the Landowner.
Non Compliance with Practice Direction 16.
2) The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).
The PoC did not contain any evidence of contravention or photographs. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct.
This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction.
On the basis of the above the defendant request the court strike out the claim for want of a cause of action. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information:
2.1) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
2.2) A copy of any contract it is alleged was in place (e.g. copies of signage)
2.3) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
2.4) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
2.5) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
2.6) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
2.7) If Interest charges are being claimed, the basis on which this is being claimed.
Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
No Clear Signage
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.
As far as the defendant can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage ‘contract' that was in place at the time of the alleged incident, none of this applies in this material case.
3.1) In the car park in which the alleged incident occurred there are no entrance signs for the regular entry that meet BPA's Code of Practice. Signs in this car park are not prominent, clear or legible from all parking spaces.
BPA's Code of Practice (18.2) states:
"Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of."
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."
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."
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.
3.2) Bearing the above in mind, there was categorically no contract established between the driver and XXX. 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.
Non Compliance with POFA, Schedule 4.
4) 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.
It was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who clarified the fact that a registered keeper can only be held liable for parking events on private land if the parking operator fully complies with the POFA, Schedule 4, and not by presumption or any other legal argument.
5) The Defendant submits that they were not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented the Defendant from being able to get this charge cancelled by the landowner, a right that the defendant believes existed as an exemption clause for customers written into the landowner contract/retailer user manual but a material fact which is withheld from consumers.
If the Defendant could have appealed to POPLA or had been informed that the landowner could deal with such complaints and cancel charges, they would have done so.
6) Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.
However, the Claimant has artificially inflated the value of the Claim from £X to £X. The Defendant submits the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules.
7) The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.
8) 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.
I believe the facts contained in this Defence are true.
Signed
Registered Keeper/Defendant
I've got to the point in my case where I have received the claim form, completed Acknowledgement of Service, and my defence now needs submitting.
This is what I've put together so far, by looking at other defence statements on the forum and adapting to be relevant to my situation.
Do you guys need details of the situation that resulted in the PCN being issued in order to give me feedback?
Any comments or advice on this draft of my defence would be appreciated.
One thing I'm unsure of is whether to include 4) as I don't remember if the PCN was received within 14 days. Should I just exclude this?
In the County Court Business Centre
Claim Number: XXX
Between:
XXX (Claimant)
-and-
XXX (Defendant)
DEFENCE
I, the Defendant, am the registered keeper of the vehicle in question at the time of the alleged incident at XXX when the Parking Charge Notice (PCN) was issued. I assert that I am not liable to the Claimant for the sum claimed, or any amount for the following reasons:
No Contract
1) The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) which states:
"A copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim."
No indication is given as to the Claimants contractual authority to operate in the car park in which the alleged incident occurred 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."
1.1) 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 XXX does not hold a legitimate contract at this car park.
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. A Managing Agent is not the Landowner.
Non Compliance with Practice Direction 16.
2) The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).
The PoC did not contain any evidence of contravention or photographs. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct.
This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction.
On the basis of the above the defendant request the court strike out the claim for want of a cause of action. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information:
2.1) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
2.2) A copy of any contract it is alleged was in place (e.g. copies of signage)
2.3) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
2.4) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
2.5) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
2.6) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
2.7) If Interest charges are being claimed, the basis on which this is being claimed.
Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
No Clear Signage
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.
As far as the defendant can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage ‘contract' that was in place at the time of the alleged incident, none of this applies in this material case.
3.1) In the car park in which the alleged incident occurred there are no entrance signs for the regular entry that meet BPA's Code of Practice. Signs in this car park are not prominent, clear or legible from all parking spaces.
BPA's Code of Practice (18.2) states:
"Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of."
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."
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."
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.
3.2) Bearing the above in mind, there was categorically no contract established between the driver and XXX. 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.
Non Compliance with POFA, Schedule 4.
4) 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.
It was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who clarified the fact that a registered keeper can only be held liable for parking events on private land if the parking operator fully complies with the POFA, Schedule 4, and not by presumption or any other legal argument.
5) The Defendant submits that they were not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented the Defendant from being able to get this charge cancelled by the landowner, a right that the defendant believes existed as an exemption clause for customers written into the landowner contract/retailer user manual but a material fact which is withheld from consumers.
If the Defendant could have appealed to POPLA or had been informed that the landowner could deal with such complaints and cancel charges, they would have done so.
6) Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.
However, the Claimant has artificially inflated the value of the Claim from £X to £X. The Defendant submits the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules.
7) The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.
8) 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.
I believe the facts contained in this Defence are true.
Signed
Registered Keeper/Defendant
0
Comments
-
-
Thanks KeithP. I'll keep 4) in.
Unfortunately I've not kept any of the original documentation... all I have is the letter before claim, claim form, and particulars of claim. So, only documents received in the past 8 weeks.0 -
in that case do a SAR bomb on the claimant (or solicitor if they used one) under the new GDPR for all data , documents , photos and evidence pertaining to you and the case0
-
Hi
I've got to the point in my case where I have received the claim form, completed Acknowledgement of Service, and my defence now needs submitting.
This is what I've put together so far, by looking at other defence statements on the forum and adapting to be relevant to my situation.
Do you guys need details of the situation that resulted in the PCN being issued in order to give me feedback?
Any comments or advice on this draft of my defence would be appreciated.
One thing I'm unsure of is whether to include 4) as I don't remember if the PCN was received within 14 days. Should I just exclude this?
In the County Court Business Centre
Claim Number: XXX
Between:
XXX (Claimant)
-and-
XXX (Defendant)
DEFENCE
I, the Defendant, am the registered keeper of the vehicle in question at the time of the alleged incident at XXX when the Parking Charge Notice (PCN) was issued. I assert that I am not liable to the Claimant for the sum claimed, or any amount for the following reasons:you've said nothing about being the driver, but include a keeper's defence. So you either need to deny being the driver, or put the Claimant to full proof of being the driver.
No Contract
1) The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) which states:
"A copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim."If you read through the whole rule (or it might be in Rule 27), this requirement does not apply in small claims. The complaint should be that they didn't provide it at the pre-action phase.
No indication is given as to the Claimants contractual authority to operate in the car park in which the alleged incident occurred 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."
The Defendant puts the Claimant to full proof of its contractual authority to operate on the relevant land.
1.1) 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 XXX does not hold a legitimate contract at this car park.
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. A Managing Agent is not the Landowner.
the Defendant puts the Claimant to full proof of its authority to bring this claim.
Non Compliance with Practice Direction 16.
2) The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).
The PoC did not contain any evidence of contravention or photographs. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. OUT OF DATE!!!! From 1 October 2017 the PD doesn't apply and is replaced by the Pre-Action Protocol for Debt Claims, which is much more specific in what it requires a prospective Claimant to do and to provide. The sanctions for failure to comply remain those set out in paras 13-16 of the old PD.
This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. you need to refer to the new protocol and the relevant para number.
On the basis of the above the defendant request the court strike out the claim for want of a cause of action. Alternatively, the Defendant asks that the claim is stayed pursuant to paragraph x of the Practice Direction - Pre-Action Conduct [note to OP: look up the para, it is one of paras 13-16, which the new Protocol expressly states continue to apply] and the Claimant is required ordered to file Particulars which comply with Practice Directions and include at least the following information:
2.1) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
2.2) The precise terms A copy of any contract it is alleged was in place (e.g. copies of signage)
2.3) How any contract was concluded (if by performance, then copies of signage maps in place at the time) note: the court won't order them to produce documents with the PoC, only the details.
2.4) Whether keeper liability is being claimed, and if so copies details of any Notice to Driver / Notice to Keeper see note above
2.5) Whether the Claimant is acting as Agent or Principal, together with a list of documents details of the Claimant's authority from the landowner - see above, court won't order a list of documents to be produced as part of a new PoC [EMAIL="won@T"]they[/EMAIL] will rely on in this matter
2.6) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
2.7) If Interest charges are being claimed, the basis on which this is being claimed.
Once these Amended Particulars have been filed, the Defendant asks for reasonable time to file another Amended defence.
No Clear Signage
3) If this claim is brought in respect of an alleged breach of contract, It is denied that there was a contract made between the Claimant and the driver through signage or any other means.
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.
As far as the defendant can ascertain, based upon the very vague particulars of claim and complete lack of explanation or evidence provided during the pre-action phase, including and photographs of the vehicle parked at the relevant time relative to any signage, and without having been furnished with the alleged signage ‘contract' that was in place at the time of the alleged incident, none of this applies in this material case.
3.1) In the car park in which the alleged incident occurred there are no entrance signs for the regular entry that meet BPA's Code of Practice. Signs in this car park are not prominent, clear or legible from all parking spaces.
BPA's Code of Practice (18.2) states:
"Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of."
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."
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."
When arriving at the car park in which the alleged incident occurred it is impossible for drivers to see and read, let alone understand, the terms and conditions being imposed the Defendant assumes it is claimed form an offer to the driver. Therefore, the driver was not aware of any offer and did not have a fair opportunity to read about any terms and conditions involving this charge and to accept any offer which was made.
3.2) Bearing the above in mind, there was categorically no The Defendant denies that there was any contract made established between the driver and XXX. 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. note: repetition can be deleted, the same point is made twice
Non Compliance with POFA, Schedule 4.
4) The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. The Defendant denies that the Notice to Keeper was delivered to him/her within the timescale required by Schedule 4, paragraph x and puts the Claimant to full proof thereof. Since the Claimant has failed to comply with Schedule 4 (s)he cannot be held liable as the registered keeper of the vehicle. 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.
It was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who clarified the fact that a registered keeper can only be held liable for parking events on private land if the parking operator fully complies with the POFA, Schedule 4, and not by presumption or any other legal argument.I'd include this last sentence in your WS not your defence.
5) The Defendant submits that they were not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented the Defendant from being able to get this charge cancelled by the landowner, a right that the defendant believes existed as an exemption clause for customers written into the landowner contract/retailer user manual but a material fact which is withheld from drivers consumers.
If the Defendant could have appealed to POPLA or had been informed that the landowner could deal with such complaints and cancel charges, they would have done so.
6) Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.
However, the Claimant has artificially inflated the value of the Claim from £X to £X. The Defendant submits the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules.
7) The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.
8) 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.
I believe the facts contained in this Defence are true.
Signed
Registered Keeper/Defendant
A few comments - most importantly you are relying on out of date documents.
Which PPC is it?Although a practising Solicitor, my posts here are NOT legal advice, but are personal opinion based on limited facts provided anonymously by forum users. I accept no liability for the accuracy of any such posts and users are advised that, if they wish to obtain formal legal advice specific to their case, they must seek instruct and pay a solicitor.0 -
Thank you Loadsofchildren123!
Really appreciate your comments and advice. I’ll make the revisions you suggested and post a revised version soon.
The PPC is Vehicle Control Services.
Thanks for your help! x0 -
Hi guys
I've been making revisions to my defence. I'm struggling with this paragraph about the Pre-Action Protocol (that replaced Practice Direction). I can see that section 3 of the PAP lists the info that the creditor should provide but this list does not specifically state "evidence of contravention or photographs"... So can I still say that?
This is my paragraph, feedback would be greatly appreciated.
Non Compliance with Pre Action Protocol
2) The Particulars of Claim (PoC) do not meet the requirements of Pre-Action Protocol for Debt Claims (2017) as there is nothing which specifies how the terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a).
The PoC did not contain any evidence of contravention or photographs. These documents, and the !!!8216;Letter before County Court Claim!!!8217; should have been produced pursuant to the Pre-Action Protocol.
This constitutes a deliberate attempt to thwart any efforts to defend the claim or to !!!8220;take stock!!!8221;, pursuant to section 8 of the Pre-Action Protocol.
On the basis of the above the defendant request the court strike out the claim for want of a cause of action. Alternatively, the Defendant asks that the claim is stayed pursuant to paragraph 5.2 of the Pre-Action Protocol and the Claimant is ordered to file Particulars which comply with Pre-Action Protocol and include at least the following information:
2.1) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge.
2.2) The precise terms of any contract it is alleged was in place (e.g. copies of signage).
2.3) How any contract was concluded.
2.4) Whether keeper liability is being claimed, and if so details of any Notice to Keeper.
2.5) Whether the Claimant is acting as Agent or Principal, together with details of the Claimant's authority from the landowner.
2.6) If charges over and above the initial charge are being claimed, the basis on which this is being claimed.
2.7) If Interest charges are being claimed, the basis on which this is being claimed.
Once these Amended Particulars have been filed, the Defendant asks for reasonable time to file amended defence.0 -
The entire 'charge' hinges upon evidence/photos of the contravention and the signs (the contract they allege was breached) so yes, of course you are entitled to that vital info.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks for all your help so far guys.
Here's the latest version of my defence. It needs submitting tomorrow so trying to finalise it today...
Any comments/advice again would be appreciated!
V2.0
In the County Court Business Centre
Claim Number: XXX
Between:
XXX (Claimant)
-and-
XXX (Defendant)
DEFENCE
I, the Defendant, am the registered keeper of the vehicle in question at the time of the alleged incident at XXX when the Parking Charge Notice (PCN) was issued. I assert that I am not liable to the Claimant for the sum claimed, or any amount for the following reasons:
No Evidence of Driver
1) The Defendant has no liability as they are the keeper of the vehicle, and XXX has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.
1.1) There is no presumption in law that the keeper was the driver and nor is the keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in schedule 4.
1.3) The driver has not been evidenced on any occasion. The Defendant puts the Claimant to full proof of the identity of the driver at the time of the alleged incident.
No Contract
2) The Claimant failed to provide the Defendant with a copy of their written contract at the pre-action phase, as per Practice Direction 6 (c), where the Claimant is advised to disclose "key documents relevant to the issues in dispute."
2.1) No indication is given as to the Claimant's contractual authority to operate in the car park in which the alleged incident occurred 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 !!!8216;Creditor!!!8217; 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."
The Defendant puts the Claimant to full proof of its contractual authority to operate on the relevant land.
2.2) 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 XXX does not hold a legitimate contract at this car park.
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. A Managing Agent is not the Landowner.
The Defendant puts the Claimant to full proof of its authority to bring this claim.
Non Compliance with Pre Action Protocol
3) The Particulars of Claim (PoC) do not meet the requirements of Pre-Action Protocol for Debt Claims (2017) as there is nothing which specifies how the terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a).
The PoC did not contain any evidence of contravention or photographs. These documents, and the !!!8216;Letter before County Court Claim!!!8217; should have been produced pursuant to the Pre-Action Protocol.
This constitutes a deliberate attempt to thwart any efforts to defend the claim or to !!!8220;take stock!!!8221;, pursuant to section 8 of the Pre-Action Protocol.
On the basis of the above the defendant request the court strike out the claim for want of a cause of action. Alternatively, the Defendant asks that the claim is stayed pursuant to paragraph 5.2 of the Pre-Action Protocol and the Claimant is ordered to file Particulars which comply with Pre-Action Protocol and include at least the following information:
3.1) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge.
3.2) The precise terms of any contract it is alleged was in place (e.g. copies of signage).
3.3) How any contract was concluded.
3.4) Whether keeper liability is being claimed, and if so details of any Notice to Keeper.
3.5) Whether the Claimant is acting as Agent or Principal, together with details of the Claimant's authority from the landowner.
3.6) If charges over and above the initial charge are being claimed, the basis on which this is being claimed.
3.7) If Interest charges are being claimed, the basis on which this is being claimed.
Once these Amended Particulars have been filed, the Defendant asks for reasonable time to file amended defence.
No Clear Signage
4) If this claim is brought in respect of an alleged breach of contract, it is denied that there was a contract made between the Claimant and the driver through signage or any other means.
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.
As far as the Defendant can ascertain, based upon the very vague particulars of claim and complete lack of explanation or evidence provided during the pre-action phase, including photographs of the vehicle parked at the relevant time relative to any signage, and without having been furnished with the alleged signage !!!8216;contract' that was in place at the time of the alleged incident, none of this applies in this material case.
4.1) In the car park in which the alleged incident occurred there are no entrance signs for the regular entry that meet BPA's Code of Practice. Signs in this car park are not prominent, clear or legible from all parking spaces.
BPA's Code of Practice (18.2) states:
"Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of."
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."
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."
When arriving at the car park in which the alleged incident occurred it is impossible for drivers to see and read, let alone understand, the terms and conditions the Defendant assumes it is claimed form an offer to the driver. Therefore, the driver was not aware of any offer and did not have a fair opportunity to read about any terms and conditions involving this charge and to accept any offer which was made.
4.2) The Defendant denies that there was any contract made between the driver and XXX. 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.
Non Compliance with POFA, Schedule 4.
5) The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. The Defendant denies that the Notice to Keeper was delivered to him within the timescale required by Schedule 4, paragraph 7 (4) and puts the Claimant to full proof thereof. Since the Claimant has failed to comply with Schedule 4 the Defendant cannot be held liable as the registered keeper of the vehicle.
6) The Defendant submits that they were not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented the Defendant from being able to get this charge cancelled by the landowner, a right that the Defendant believes existed as an exemption clause for customers written into the landowner contract/retailer user manual but a material fact which is withheld from drivers.
If the Defendant could have appealed to POPLA or had been informed that the landowner could deal with such complaints and cancel charges, they would have done so.
7) Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.
However, the Claimant has artificially inflated the value of the Claim from £X to £X. The Defendant submits the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules.
8) The Court is invited to dismiss the Claim, and to allow such Defendant!!!8217;s costs as are permissible under Civil Procedure Rule 27.14.
9) 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.
I believe the facts contained in this Defence are true.
Signed
Registered Keeper/Defendant0 -
I see my numbering isn't correct in section 1. Will amend that...0
-
Vehicle Control Services are members of the IPC; so why all the references to the BPA in your defence?Thank you Loadsofchildren123!
Really appreciate your comments and advice. I’ll make the revisions you suggested and post a revised version soon.
The PPC is Vehicle Control Services.
Thanks for your help! x0
This discussion has been closed.
Confirm your email address to Create Threads and Reply
Categories
- All Categories
- 352.3K Banking & Borrowing
- 253.6K Reduce Debt & Boost Income
- 454.3K Spending & Discounts
- 245.3K Work, Benefits & Business
- 601.1K Mortgages, Homes & Bills
- 177.6K Life & Family
- 259.2K Travel & Transport
- 1.5M Hobbies & Leisure
- 16K Discuss & Feedback
- 37.7K Read-Only Boards