County court claim

akn_2018

Hi All,

After AOS and Defending the claim, PPC still wanted pursue.
Upon completing the directions questionnaire, they came back with an offer of £175.00(which will be what they would get if they win) as if to avoid further cost to either party.
I did not respond and now the hearing is on the 5th of Dec.
I am planning to defend based on obscure signage + recently changed parking terms&ANPR introduction + ANPR entry time not available to customer + Actual loss can could have been rectified if the driver was aware of the ANPR time etc.

1.could some one point in the direction of rules/legislations regarding these?
2. I have photos and videos taken of the ill lit carpark and the obscure signage, how do i post to the court /other party as per the court directions?

I'll post my defence , Directions questionnaire etc below.
It has been hectic with Work and a house move.
thank you,
AKN2018

akn_2018

In the County Court Business Centre
Claim Number:

Between:

xxxxxxxxx
Statement of Defence

I am xxxx xxxx, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper of vehicle registration mark xxxxxxxx, which is the subject of these proceedings. The vehicle was insured with two named drivers permitted to use it.

The Defendant denies liability for the entirety of the claim for the following reasons.

1. In breach of Practice Direction 16 7.5 and CPR 16.1 1(a) the Particulars of Claims lack any specific information and do not give any explanation on how the contravention allegedly occurred as the Claimant relies on one source (ANPR) to support the alleged contravention and another (a parking ticket) as the basis of the Contract. Parking ticket machine or the actual ticket does not reveal the time of entry recorded by ANPR, which is a violation of Practice Directions.
a. How the charge arose, how the charge has been constructed or what contract was allegedly entered into is not expressly communicated to the Defendant.

b. Any proof of the accuracy of the ANPR time recordings or how that becomes evidence of the alleged contravention is not made clear to the Defendant as the Keeper of the vehicle. This makes it very difficult for the Defendant to accurately defend the claim.

2. The Defendant believes that the claim has been artificially inflated and that the claimant has added unrecoverable sums to the original charge, including £50.00 for Legal Representatives costs which is not permitted for the small claims track under CPR 27.14. In any case the Defendant disputes the the Claimant has incurred £50.00 Legal Representatives costs pursuing an alleged £100.00 debt.

3. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

3.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

3.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

3.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
3.3 POFA Schedule 4 ,Paragraph 2, section (3) clearly states that a creditor can recover unpaid parking charges only if ‘Adequate Notice’ was given to the driver of the vehicle by one of the following means –
(a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or
(b) where no such requirements apply, the display of one or more notices which—
(i)specify the sum as the charge for unauthorised parking; and
(ii)are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.
3.4 The claimant has wilfully ignored the opportunity to recover the unpaid parking charges from the Driver of the vehicle, at the time of the contravention and instead sought to recover the sum from the Keeper at a later time.

4. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:

a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no liability for such charge brought to the attention of the driver.

b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.

d) No promise was made by the driver that could constitute consideration because there was no offer neither known nor accepted. No consideration flowed from the Claimant.

e) Absent the elements of a contract, there can be no breach of terms and conditions and hence the existence of contravention.


5. In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

a) The Claimant is put to strict proof that at the time of the alleged breach they had both advertisement consent and the permission from the site owner to clearly display the signs stating the recently changed parking terms and that of ANPR recordings being carried out different to what was in force in the parking land.

b) In the absence of strict proof I submit that the Claimant was committing an unfair commercial practice that is prohibited .This practice fails to meet the tests of 'fairness and transparency' in the Consumer Rights Act 2015 and also breaches the CPUTRs 2008 as an unfair commercial practice and a 'Misleading Action’. The claimant are misusing your two data streams, acting against the interests of paying motorists by distorting the 'start time' of the contract, tipping the balance against the consumer.

6. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

7. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against unsuspecting motorists, alleging 'debts' for fabricated parking contraventions is not something the Courts should be seen to support.

8. The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, BW Legal, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).


9. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

I confirm that the facts in this defence are true to the best of my knowledge and belief

xxxxxxxx / ________________________
dt

 

akn_2018

Please help with any fine points in any rules relevant to this case that I can use in the hearing.
many thanks.

System

I did not respond and now the hearing is on the 5th of Dec.

Take out 7 and 8 as you can't prove it - and it may come back and bite you. You are writing a Witness Statement about what happened on the day. So just detail what happened as you understand it from the driver's point of view.

Also you say there was a change in PPC. Where is the challenge that NCP had occupiers' rights? It is a minor point but worth checking ASAP.

KeithP

Have you prepared a Witness Statement and gathered your evidence?

That is what you need to do now before the date set by the court - usually 14 days before the hearing, but check your documentation.

Coupon-mad

The above was your defence. We need to see your Witness Statement & evidence.

Helpful clues & links as to what this stage looks like, are in the NEWBIES thread post #2 in the section about WS and evidence.