Private PCN on residential estate

squire1234

Coupon-mad wrote: »

Yes, in the NEWBIES thread and on any recent defence thread, loads here.
I must have replied on twenty or more today. All pretty much the same as yours.

Thanks, I will start reading through your recent defences!

KeithP wrote: »

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

Issue Date is 25th Feb 2019 and it came from the County Court Business Centre in Northampton, yes.

KeithP

squire1234 wrote: »

Issue Date is 25th Feb 2019 and it came from the County Court Business Centre in Northampton, yes.

With a Claim Issue Date of 25th February, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 1st April 2019 to file your Defence.

That's nearly three weeks away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


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

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

squire1234

Appreciate the run through.
In your experience, does receiving the Claim Form mean I will need to defend this in court or do Gladstone's drop it before Court hearing if it is a good defence?

Coupon-mad

Some are discontinued before a hearing but most continue, so expect a hearing at your local court in the Summer. Your paperwork later will allow you to notify the courts of any holidays etc., where you can't attend.

squire1234

Hi, so I've finally got around to making a first draft of my defence. Please could you give some pointers? Particularly the 'Primacy of contract' section since because I was parked outside of my allocated bay I was struggling to find the right defence for this. Thanks!

IN THE COUNTY COURT

CLAIM No: ...

BETWEEN:

...

-and-

…

________________________________________
DEFENCE STATEMENT
________________________________________


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

2. The Particulars of Claim lack specificity in that they refer to 'Parking Charge(s)' incurred on 14/04/2018. They do not, however, state the basis of any purported liability for these charges, in that they do not state:
2.1. The stipulated terms of parking at the time.
2.2. In what way these terms are alleged to have been breached.
2.3. Whether the Defendant is being pursued as the driver or as the registered keeper. The particulars of Claim state that ‘The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle’.
2.4. As such, the Particulars of Claim fail to establish a cause of action and a fair exchange of information, which would enable the Defendant to prepare a specific Defence. Further, they neither comply with the Civil Procedure Rule (CPR) 16, paragraphs 7.3 to 7.5, in respect to statements of case, nor do they meet the requirements of Practice Direction 16 (7.5) in their failure to specify the breach of terms.
2.6. Due to the ambiguity of the particulars, it is unclear on what legal basis the claim is brought. However, it is denied that the Defendant, or driver of the Vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

3. The Defendant 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.
3.1. The Defendant wrote to the Claimant requesting further information, a copy of which will be provided to the Court, and received a response that lacked specificity. This included, but was not limited to, failure to provide evidence of the Claimant’s authority to operate on the land and to override the existing rights enjoyed by residents and their visitors upon the land.


Background
4. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark [VRN] (the ‘Vehicle’), which is the subject of these proceedings. The Vehicle is insured with [insurance] under the name of the registered keeper.

5. It is admitted that on 14/04/2018 the Defendant's vehicle was stopped in a non-obstructive manner at [location], a site at which the Defendant holds private residential tenancy.
5.1 It is denied that the Defendant was the driver of the vehicle at the time. The Claimant is put to strict proof.
5.2. 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").
5.3. 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. Furthermore, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm.


Failure to Comply with Schedule 4 POFA
6. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that (i) there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and, (ii) that it has followed the required deadlines and wording, as described in the Act, to transfer liability from the driver to the registered keeper.
6.1. The Defendant avers that the Claimant has failed to comply with the relevant statutory requirements.
6.2. As set out by Schedule 4 Paragraph 8 (4), the deadline for the Notice to Keeper is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given. The Defendant notes that the ‘Notice to Keeper’ was sent on 13/06/2018 and received on 15/06/2018, 62 days after the alleged breach of contract on 14/04/2018. In this instance, the Claimant failed to provide due notice and, therefore, liability cannot be transferred to the Defendant in accordance with POFA Schedule 4.
6.3. The Defendant notes that the ‘Notice to Driver’ was deficient in its contents in that it failed to specify the ‘period of parking’ as is required by POFA Schedule 4, Sections 7(2)(2) & (3). As stipulated, this is obligatory to the requirements of the notice and such an omission renders both the ‘Notice to Driver’ and, subsequent, ‘Notice to Keeper invalid in law.

7. The Court is invited to dismiss the Claim in its entirety on the above basis, that the Claimant has failed to meet the mandatory requirements set out by Schedule 4 POFA.


No authority to operate on the land
9. 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.
9.1 The Claimant has provided no proof of any such entitlement.
9.2. The Claimant is not the Landowner and is merely an agent acting on behalf of the Landowner.
9.3. The Claimant suffers no loss as a result of a vehicle parking at the alleged location.
9.4. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract with the Landowner to bring action on its own behalf.


Authority to Park and Primacy of Contract
10. The Particulars refer to the material location as '[address]’. The Defendant has, since 22/07/2017, held legal title under the terms of a lease, to [address] at that location.

11. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles and to the use of communal areas.
11.1. It should be noted that there are no terms within the lease requiring lessees to pay penalties to third parties, such as the Claimant, for non-compliance of the same.
11.2. The Defendant avers that there was an absolute entitlement for the vehicle to remain in the alleged location and permission for use of communal areas, deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. A copy of the lease will be provided to the Court.
11.3. Communal areas within the estate are often used for loading/unloading as parking is limited within the estate. This creates a problem for tenants who own more than one household vehicle and must load/unload prior to moving the vehicle elsewhere.
11.4. The Defendant relies on their primacy of contract and avers that the operator’s 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.
11.5. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way/use of communal areas and to peaceful enjoyment, and parking terms cannot be re-offered as a contract by a third party.

12. Further, the signs suggest that ‘by parking or remaining at this site’ without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly non-sensical, since if there is no permission, there is no offer, and therefore no contract.
12.1 The signage displayed only makes an 'offer of parking' to permit holders and those parking within allocated bays, and therefore only they can potentially be bound by the contractual terms conveyed (and only if the terms were clear and prominent as adequate notice of the charge, which is denied). The only clear large lettering on the signage was the notice of ‘WARNING: PRIVATE LAND' – ‘Private Land’ to which the Defendant has access as granted by the lease agreement.
12.2. The Defendant avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.


Distinguishing features from ParkingEye Ltd v Barry Beavis (2015) - Failure to clearly set out parking terms
13. 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, was clear - both upon entry to the site and throughout.
13.1. The Defendant avers that the parking signage, pertaining to this Claim, failed to set out clear parking terms and was inadequate in its ability to form a legally binding contract with the driver.
13.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting from the site of the alleged contravention to reasonably convey a contractual obligation;
13.1.2. The signage at the entrance to the land was displayed in a manner that could not clearly be observed when attempting to safely manoeuvre a vehicle into the turning of the residential estate.
13.1.3. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
13.1.4. The signage contained particularly onerous terms not sufficiently drawn to the attention of the driver as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3. Further, the terms were not sufficiently defined in that they merely state that a vehicle must be parked within the correct allocated bay, with no definition of the ‘Correct Allocated Bay’.

14. 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 Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

15. On these grounds, the penalty charge is unconscionable and distinguished with ParkingEye v Barry Beavis (2015).

Summary
16. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

17. In summary, it is the Defendant's primary defence that the claim is invalid on the grounds that the POFA 2012 Section 4 conditions were not met at first instance. Further, the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

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

squire1234

Hi, any pointers on the defence?! I don't have long to submit and getting a bit nervous now! Thanks.

KeithP

squire1234 wrote: »

Hi, any pointers on the defence?! I don't have long to submit and getting a bit nervous now! Thanks.

You still have over a week to file your Defence.

Coupon-mad

That is a VERY long and rambling defence. At least remove this if it's not true:

3.1. The Defendant wrote to the Claimant requesting further information, a copy of which will be provided to the Court, and received a response that lacked specificity. This included, but was not limited to, failure to provide evidence of the Claimant’s authority to operate on the land and to override the existing rights enjoyed by residents and their visitors upon the land.

And there is NO POINT having this in #4:

The Vehicle is insured with [insurance] under the name of the registered keeper.

The whole point of why Johnersh wrote about 'two people' being on the insurance in his example, is that more than one person could have been driving, no point telling them only you could, under that insurance policy anyway.

Why not just start again with bargepole's concise example of a residential defence, and remove the bits about key fobs and underground car parks if this is not a key fob secure site, and replace that bit with the fact that the car was only briefly stopped not parked in a bay, and that residents must be allowed time to unload items to adjacent flats (using the Jopson case).

You will find other concise recent examples by searching the forum for:

Jopson unloading defence true

A PPC does NOT know if you were/not unloading, and will have only taken pictures over a couple of minutes...use that to your advantage unless in an early appeal you already spilled the beans about being parked for hours (if you were).

squire1234

Thanks for the pointers! I will work on condensing it. Can I just confirm that my section on 'Failure to Comply with Schedule 4 POFA' is valid and accurate?

Coupon-mad

Not sure, it's so buried in text!

Try putting it and your other background facts (briefly) into bargepole's concise defence example, so we can review it.

Make sure it's the one by bargepole that includes the 'no landowner authority' in it.