Private PCN on residential estate

squire1234

I wasn't able to find the exact defence to which you were referring but I used Bargepole's defence on inadequate signage. If you can point me in the right direction and I am happy to rewrite? But here is my attempt using the former (I have highlighted the headings for my main defences):

IN THE COUNTY COURT

CLAIM No: ...

BETWEEN:

LINK PARKING LTD (Claimant)

-and-

... (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 14/04/2018. 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 [ADDRESS] at that location.

4. 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.

5. The Claimant has provided no evidence thus far 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").

Failure to comply with Schedule 4 POFA
6. 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.

7. Further, 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.

8. 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 and court proceedings are, therefore, unwarranted.

Authority to Park and Primacy of Contract
9. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles and permission for the use of communal areas.
9.1. 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.

10. Communal areas within the estate are often used for loading/unloading as parking is limited within the estate. The Defendant avers that there was an absolute entitlement for the vehicle to remain in the alleged location, deriving from the terms of the lease, for the purposes of loading/unloading.

11. 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.

12. 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. 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.

Inadequate/insufficient signage
13. 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.

14. The signage at the entrance to the land was displayed in a manner that could not be seen when attempting to safely manoeuvre a vehicle into the turning of the residential estate.

15. In the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom. 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.

16. 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.

17. 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 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. 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. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

Summary
18. 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.

19. 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.

Coupon-mad

That looks fine, as long as all the details about the signs and lease are about your residence and not just copied where they don't make sense (some people do!).

I would remove mention of the NTD, as it sort of implies you might have been the driver, and the Claimant will seize on the fact you know about ad saw the windscreen PCN:

7. Further, 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.

If this is about more than one PCN, have this sort of thing in there near the end:

https://forums.moneysavingexpert.com/discussion/comment/75631067#Comment_75631067

squire1234

That looks fine, as long as all the details about the signs and lease are about your residence and not just copied where they don't make sense (some people do!).

Yeah, I've thoroughly looked over my lease and the signs and it does apply to my residence.

I would remove mention of the NTD, as it sort of implies you might have been the driver, and the Claimant will seize on the fact you know about ad saw the windscreen PCN:

I will remove this but I appealed the windscreen ticket at the time. Does this throw my defence regarding their pursuit of me as keeper under the bus?

I have also looked over my correspondence with Gladstone's and in one of their emails they said that they were pursuing me as driver because I had allegedly admitted that I was the driver at the time. I am not sure what they are basing this on because I never admitted this. Where do I stand?

If this is about more than one PCN, have this sort of thing in there near the end:

It is about one ticket only, although I have just received a claim form for one of the other tickets. It is a separate issue.

Coupon-mad

I will remove this but I appealed the windscreen ticket at the time. Does this throw my defence regarding their pursuit of me as keeper under the bus?

Not at all, a keeper can have appealed and known about the PCN. I just wouldn't draw attention to this point in your defence, for now - don't give them the NTD to think about.

Also, there is very little that a NTD has to include and saying it's non compliant isn't needed, if the NTK was late and non-POFA.

I assume you DIDN'T appeal as driver?

squire1234

I assume you DIDN'T appeal as driver?

Nope, I didn't accept or deny that I was the driver and didn't refer to myself as the driver so am unsure where they got that from.

If this is about more than one PCN, have this sort of thing in there near the end:

Just going back to what you said earlier - as I have now received a claim form for one of the other tickets, do you have any advice on how to proceed? The other NTK met the POFA requirements. Should I treat it as an entirely separate defence although the circumstances are identical?

Coupon-mad

Do the same defence for both, only with the right claim number at the top.

Have the paragraph about consolidating the two claims in these defences, then REPEAT IT again and again at each stage (DQ, then WS) till your local Judge spots it and merges the hearings into one.

squire1234

Thanks, but just to reiterate that the second ticket meets the POFA deadlines (they didn't send the NTK outside of the 56 day limit) - I'll remove this part from the second defence and otherwise keep it the same with the additional paragraph that you recommended.

Coupon-mad

You can still allege they have failed to transfer liability to the keeper, due to a failure to meet the POFA 2012 Schedule 4 requirements for 'adequate notice' of the parking charge on prominent signs, and a lack of any 'relevant contract' or 'relevant obligation' that could have bound the driver, given the circumstances.

squire1234

Great! Really appreciate all the help so far. Will get back to you when there is an update.

squire1234

Can I please check that when sending my defence to the email that KeithP provided, do I need to fill out the form and attach it or can I simply send a .pdf of my defence on its own?