Help please - have i made a mistake?

Standupforyourself

thanks Coupon

Flu and workload has meant i havent started my defence yet so will get on that this weekend.

For the interest of the wider group, I have actually had some information back from Ilfracombe Town Council which has confirmed that it purchased the land (via a loan) with the intent to use it as a car park.

Now i would view this as publicly owned land, but from what i have read on other forums it might not be that straight forward.For the record, the council have stated emphatically that the fact it was purchased to run as a car park makes it private land!

!!!!!!

Redx

Standupforyourself wrote: »

Hey Redx

thanks for the response.

But my case is not one that is affected by byelaws, is it? Or is it? I genuinely find this whole situation utterly confusing!

I suspect somebody else posted in your thread, which I may have replied to, then has deleted their post , so ignore my UKPPO post


your case is more like Chorlton Precinct , Manchester , where Excel manage the parking but the land is owned by Tameside Council and presumably leased to Excel or someone else

Standupforyourself

isnt this simply a case of ascertaining whether the land is privately owned or not?

I think council and i think of public expenditure, council tax, etc, and so would assume it is public land. However, can the land be privately owned by a council as a way of making additional revenue. It seems to blur the lines. If it is "private" then it isnt covered under the TMA. I can argue that it is, but what does this come down to? Interpretation?

Standupforyourself

Hi Everyone

Not sure if this is going off on a tangent but wondered if there is a case to dismiss claim based on NTK non compliance? I read a thread on this forum (search PP winner) about a win in court against PP for this very point.

My particulars are that the Parking Charge Notice was sent to keeper with an issue date of 3rd Aug 2018 (a Friday). so deemed "given" 2 working days later - 7th Aug.

Should the NTK make the point that the registered keeper can only be pursued for an unpaid charge 28 days from this day - i.e. from the 7th Aug?

If this is not clearly stated in the NTK are the PP in breach of POFA Schedule 4 section 9(2)(f)?

Coupon-mad

In 2018 I am not sure what wording PP were using in their NTKs but I am not sure what you are getting at re the date. Was it deemed delivered late?

Standupforyourself

tbh, i dont know what i'm getting at either! I just read this thread:

https://forums.moneysavingexpert.com/discussion/6001694/premier-park-ltd-court-case-won&highlight=premier+park+win+court+won

(sorry not sure if that works?) and it seems a case was won on this point but i couldn't quite get my head around how/why it was successful?

My assumption was that, in order to comply with POFA, the PP would need to disclose the correct number of days before which it could pursue the keeper for liability.

Can you or someone explain how this won?

Standupforyourself

Hi All

Notwithstanding the issue raised in thread #277 (thoughts please?) here is my draft defence. I'll be honest, this is confusing the s*** out of me and so i hope it scans ok and makes sense. It is basically a copy and paste job from a number of other defences.

Please let me know if i have missed anything. I am sure i have but can't for the life of me remember what!

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

The Defendant was the registered keeper of the vehicle xxxxxx in question at the time of the alleged incident.

It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle xxx when it was parked at xxxxx.

1. Not Relevant Land, no keeper liability – For The Claimant to pursue the Defendant as the registered keeper of vehicle XXXX then it must satisfy certain conditions as laid out in the Protection of Freedoms Act 2012. One such condition is that any alleged parking violation must take place on “relevant land”. The land in question at Ropery Road Cart Park, Ilfracombe is owned by Ilfracombe Town Council who are a “parish council”. By definition in the Road Traffics Act 1984 (section 32(4)(b)) a parish council is a “traffic authority” and under the POFA any land “provided or controlled” by a traffic authority is NOT deemed to be relevant land:
Paragraph 3 of POFA 2012 states the definition of “relevant land”:
3(1)In this Schedule “relevant land” means any land (including land above or below ground level) other than—
(a)a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
(b)a parking place which is provided or controlled by a traffic authority;
(c)any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.
Therefore, based on the legislation, the land at Ropery Road is clearly not relevant land and therefore no keeper liability can exist in law.

2. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.
Further and in the alternative, it is denied that the terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. The small sign at the car park entrance it does not state clearly that it is affiliated with Premier Park, nor does it clearly state that ANPR is being used in the car park to enforce payment. Reference to the use of ANPR cameras is particularly small and does not meet the requirements of ICO code of practice or indeed the BPA Code of Practice which states:
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
In this case, the entrance sign only states that the cameras will capture number plates, NOT that the data will be used to enforce parking charges and therefore do not meet the requirements set out in the BPA Code of Practice.


3. The Particulars of Claim fails to distinguish whether the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate 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. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. No standing or landowner authority

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 under defined parameters and to form/offer contracts in their own name, and to pursue payment by means of litigation.

5. Unconscionable sum claimed - double recovery - abuse of process
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.

In addition to the 'parking charge', the Claimant has artificially inflated the value of the Claim by adding costs of £60 which has not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Defendant avers that this inflation of the considered amount is a gross abuse of process.

The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. 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.

In a very recent case, District Judge Taylor, dismissed a case from the Claimant that included a false amount of £60 due to abuse of process.
Claim number is F0DP201T District Judge Taylor
Southampton Court, 10th June 2019

"IT IS ORDERED THAT the claim is struck out as an abuse of process.
The claim contains a substantial charge additional to the parking charge which it is alleged the defendant contracted to pay, This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4 not with reference to the judgement in Parking Eye v Beavis. It is an abuse of process from the claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.

This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the civil procedure rules 1998”

Additionally, District Judge Grand has recently concluded that an additional sum such as the Claimant is seeking to recover is knowingly inflated and the Claimant is not entitled to recover it (F0DP163T, Southampton Court, 11th July 2019)

In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Premier Park Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.


Statement of Truth:

"I believe the facts contained in this Defence Statement are true."

Coupon-mad

You need to add lots more paragraph numbers.

And if quoting the BPA CoP, I would not start a sentence with the para number of that part of the CoP, as it confuses the numbering of your defence.

And as this a site that is under statutory/Council control, I don't think you need worry about how that other case was won (I had no time to look!). If it is not 'relevant land' then the Govt Guidance to section 56 of the POFA (which later became Schedule 4 of the Act) makes it crystal clear to even the slowest of Judges, that 'keeper liability' does not apply and the Claimant should never have mentioned that in their NTK.

Your defence looks good - almost done - but you've misunderstood this or you found a slightly old example:

In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, Premier Park Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

Remove that wording, it is not about the solicitors' costs of £50. They can add that, it is a fixed cost in the CPRs.

We only recently stopped using that wording, to be fair!

The abuse of process is about PP adding £60 to the claim as pretend debt collection costs, that they cannot add because those costs are indisputably already in the £100 parking charge.

Standupforyourself

thanks Coupon

i will make the changes to tidy it all up and resubmit. And i will take out that paragraph about the £50 - i think i got that from a very recent defence but point taken.

Reading the relevant land thing back i still think it needs tweaking. I've looking at this issue for months and i still get confused by it so any pointers from anyone about making this sound as clear as day would be most appreciated.

Le_Kirk

2. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.
Further and in the alternative, it is denied that the terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. The small sign at the car park entrance it does not state clearly that it is affiliated with Premier Park, nor does it clearly state that ANPR is being used in the car park to enforce payment. Reference to the use of ANPR cameras is particularly small and does not meet the requirements of ICO code of practice or indeed the BPA Code of Practice which states:

I would split this up in order to make it flow better and then adjust your numbering and, as C-m suggests, number every paragraph, as: -

2. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

3. The Defendant avers that the signage at the site in question is woefully inadequate and extremely confusing. The small sign at the car park entrance it does not state clearly that it is affiliated with Premier Park.

4. Further and in the alternative [strike]it is denied that the terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily.[/strike] the terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

5. The sign does not clearly state that ANPR is being used in the car park to enforce payment. Reference to the use of ANPR cameras is particularly small and does not meet the requirements of ICO code of practice or indeed the BPA Code of Practice which states: