PCM Parking Ticket, Now received Court Claim Form

coolestchip

OK, I have now redone the response to some extent - it may still require some expert read out though.

I am <name>, the defendant in this matter and the registered keeper of vehicle <xyz>at that time.

I deny I am liable for the entirety of the claim on the following grounds:

1. The Claim Form issued on the 05 July 2018 by Gladstones Solicitors Limited was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Gladstones Solicitors Limited as the Claimants Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

2. This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017) and as an example as to why this prevents a full defense being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defense. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

a. There was no compliant Letter before County Court Claim under the Practice Direction.

b. This is a speculative serial litigant, issuing a large number of draft particulars. The badly mail-merged documents contain very little information.

c. The Schedule of Information is sparse of detailed information.

d. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about; why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. Furthermore, the Claim Form Particulars 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. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

i. Early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute

ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure

iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and

iv. support the efficient management of proceedings that cannot be avoided.

e. The Defense therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted

3. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012). Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is therefore unable to hold the defendant liable under the strict keeper liability provisions:


4. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is simply not credible that £50 legal representative!!!8217;s costs were incurre. The Defendant believes that Parking Control Management Limited has artificially inflated this claim. They are claiming legal costs when not only is this not permitted (CPR 27.14) but the Defendant believes that they have not incurred legal costs. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. The claimant has not explained how the claim has increased from the original parking notice to £252.27 If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.
Authority to Park and Primacy of Contract
5. It is denied that the Defendant or lawful users of his/her 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> , by way of themselves being the leaseholder. 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.

6. 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.

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

8. 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 I 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, none of this applies in this material case.

9. In the absence of any proof of adequate signage 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 at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs

b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant

c. Inadequate signs incapable of binding the driver, this distinguishes this case from the Beavis case:

i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and no contract formed to pay any clearly stated sum
ii. It is believed 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 Consumer Rights Act 2015 in requiring a huge inflated sum as compensation from by an authorised party using the premises as intended
iii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
v. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

d. IPC CoP breaches this distinguishes this case from the Beavis case:
i. The signs were not compliant in terms of the font size, lighting or positioning
ii. The sum pursued exceeds £100
iii. There is/was no compliant landowner contract

10. No standing this distinguishes this case from the Beavis case:
It is believed Parking Control Management do 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.

11. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

12. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

13. The Defendant has reasonable belief that the Claimant sent a letter claiming to be a final letter before court action, but then instead sent this to more debt collectors. As such the Claimants have artificially inflated the claim value by claiming to involve further debt collectors, the Defendant puts the Claimant to strict proof that all claimed costs were invoiced and paid

14. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable expect a registered keeper to be able to recall the potential driver(s) of the car 15 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

(a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 05 July 2018.

(b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.


STATEMENT OF TRUTH

I confirm that the contents of this Defence are true to the best of my knowledge and recollection.

System

I am Mr. Saurabh Sethi, the defendant in this matter and the registered keeper of vehicle MV66FSC at that time.

Are you wanting this personal information on an open forum where the parking company can read it.

Also you haven't said about living overseas so this will default to a "paper only" hearing unless you intend to come back to the UK.

coolestchip

IamEmanresu wrote: »

Are you wanting this personal information on an open forum where the parking company can read it.

Also you haven't said about living overseas so this will default to a "paper only" hearing unless you intend to come back to the UK.

Thanks for the tip on name. Forgot that trying to copy paste from word here.

Will below be ok for an overseas address mention at the end of the statement:

15. The Defendant is now staying overseas for an extended period of more than three years, and is a resident there. The defendant only occasionally comes to the UK for work purposes, and last date of exit from the UK was 30/01/2017. Kindly note the below new permanent address of the defendant and address any further communication there. Defendant is happy to provide proof of residence for this address. New Address:<NEW ADDRESS>

bargepole

The Defence you have posted on here, reads like exactly what it is, a template copied from various internet sources. Most of it is prolix and irrelevant, and the strongest defence point is buried at para. 5. If you submitted that, you would be hoping that the Judge takes the trouble to find the points that might help your case.

Here is a suggested proper Defence for this type of claim, which you will need to edit accordingly:


IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between
[NAME OF PARKING COMPANY] (Claimant)
-and-
[NAME OF DEFENDANT] (Defendant)
__________
DEFENCE
__________

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

2. The Particulars of Claim on the N1 Claim Form refer to Parking Charge(s) incurred on [DATE]. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars state The Defendant was driving the vehicle and/or is the keeper of the vehicle, which indicates 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 Particulars refer to the material location as [LOCATION]. The Defendant has, since [DATE], held legal title under the terms of a lease, to Flat No. XX at that location. At some point in [YEAR}, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

4. The underground car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

5. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles. The definitions, at para. 1.6, define an Authorised Vehicle as one which is taxed, roadworthy, and under 2 metres in height. At 1.54, the underground car park is defined. In Schedule 4, para.5, the Lessee agrees to only park a vehicle in an area set aside for that purpose. At para. 24, the Schedule to the Lease states that Lessees must not allow commercial vehicles, caravans, boats, trailers, etc. to be parked anywhere, and repeats the taxed and roadworthy requirements. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. .

6. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

7. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

8. Further and in the alternative, there are two different types of signs displayed at the location. The original signs, erected in 2014, refer to Terms of parking without permission, and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract. The later signs, erected in 2015, state Authorised Vehicles Only, which the Defendant's vehicle clearly was, as per clause 1.6 of the lease. In any event, the proximity of signs setting out different terms is ambiguous, and falls foul of the contra proferentem rule.

9. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant!s position that no such breach occurred in this case, because there was no valid contract, and also because the !!!8216;legitimate interest in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

10. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.

Statement of Truth

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

;...
(Defendant)

.
(Date)

coolestchip

bargepole wrote: »

The Defence you have posted on here, reads like exactly what it is, a template copied from various internet sources. Most of it is prolix and irrelevant, and the strongest defence point is buried at para. 5. If you submitted that, you would be hoping that the Judge takes the trouble to find the points that might help your case.


.
(Date)

Wow, you are definitely a life saver, and now I'm kindof ashamed myself too why I copy-pasted many items. I would use your helpful reply and modify it further to my requirements. Will post back soon.