Help please - have i made a mistake?

Standupforyourself

many thanks again. I will tidy it all up.

And if anyone has time to consider my point in post #277 that would be great as i need a second/third,etc opinion on how that won.

Standupforyourself

Amended defence here with additional numbered paragraphs. I have also included a paragraph about NTK non compliance but not sure if i am barking up wrong tree so please comment.

One other thing, should there be an argument against the use of ANPR in a council owned car park? I dont understand the law on this.

DEFENCE STATEMENT
________________________________________
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. Notice to Keeper was not compliant with section 9(2)(f) of the Protection of Freedoms Act 2012 Schedule 4. Section 9(2)(f) states that a notice to keeper must:

(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid

In this case, the Notice to Keeper that the Defendant received did not meet these requirements. The Claimant sent a Notice to Keeper which stated:

“If within 29 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle”

The issue date of the Notice to Keeper was 3rd August 2018; according to the Protection of Freedoms Act 2012, a notice to keeper is deemed “given” two working days after this date. As 3rd Aug 2018 was a Friday this sets the “given” date as Tues 7th August 2018.

Therefore the Notice to Keeper, in this instance, was incorrect in stating that there were 29 days from which the Claimant could seek to recover the parking charge. In fact, the keeper should have been informed that there were 32 days from the Issue date on the Notice to Keeper from which The Claimant could recover the parking charge.


2. 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 (POFA). 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 as Ilfracombe Town Council are a parish council and therefore, by definition, a traffic authority and therefore no keeper liability can exist in law.

3. 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.

4. Further and in the alternative, 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 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 (Secon 21.1) which states:
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.


6. 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.

7. 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.

8. 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.

9. 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)

10. 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."

Redx

Anyone that posts a defence labelled Defence Statement worries me as to where they obtained it

Look at the bargepole examples , it just says Defence , one word

And that error is just one on a cursory glance , so check your header and footer

Standupforyourself

Redx wrote: »

Anyone that posts a defence labelled Defence Statement worries me as to where they obtained it

Look at the bargepole examples , it just says Defence , one word

And that error is just one on a cursory glance

It was obtained on this forum from the link in the Newbies Sticky thread for good defence examples i think!

It is not a material error so please comment on the meat of the argument and i will tidy up the cosmetics as they are pointed out.

Coupon-mad

Standupforyourself wrote: »

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?

It was won because the NTK said 'if within 29 days...blah blah...the keeper will be liable' and that wasn't true. The word ''within'' was wrong.

Compare it to what 9(2)f of the POFA says, and you can see that keeper liability DOES NOT kick in 'within 29 days' of any NTK, ever, because you have to add the days for service, first. Which is why the POFA gives parking firms some easy wording to copy!

Anyone that posts a defence labelled Defence Statement worries me as to where they obtained it

I agree. We have not written defences with that heading since 2018!

Redx

Good OLD examples that should be adapted accordingly and only posted when almost complete

The job of reading thousands of words and correcting them as best you can is your job

I wouldn't bother reading any that have obvious errors and are clearly old hat , and last week coupon mad said she was going to bin most of those old examples , due to being old and out of date (like last year's Xmas TV guide)

I suggest you read the threads by CEC16 and basher52 (keep up at the back !)

Standupforyourself

Redx wrote: »

Good OLD examples that should be adapted accordingly and only posted when almost complete

The job of reading thousands of words and correcting them as best you can is your job

I wouldn't bother reading any that have obvious errors and are clearly old hat , and last week coupon mad said she was going to bin most of those old examples , due to being old and out of date (like last year's Xmas TV guide)

I suggest you read the threads by CEC16 and basher52 (keep up at the back !)

Fair dos!

I've read more words on this forum than i'd like to admit to, more hours, etc. Apologies for any silly mistakes but these will be more obvious to the experts than to first timers!

Coupon-mad

Sorry, quite a few of the 17 defences are old now and I plan to prune them soon!

You also need the lovely DJ Josephs' judgment from Jon8878's thread, like here:

https://forums.moneysavingexpert.com/discussion/6028938/bw-legal-premier-park-limited-loc-unauthorised-entry-parking

Maybe there is something in their defence that you can crib from, too? I suggest ALL defences, except those v ParkingEye, include with the email to the CBCC, Jon8838's judgment as the wording from DJ Josephs is so good and thorough.

Redx

There were over half a dozen wins in court only last week , plus a few wins before Xmas like the CEC16 thread that coupon mad was involved with , or the basher52 defence she rewrote for him

Use something recent and relative and it's less work for you and the volunteers here too

Putting 2 year old meat in your sandwich means nobody will taste it , never mind tell you how good it is, lol

Do what cm said above

Standupforyourself

Coupon-mad wrote: »

Sorry, quite a few of the 17 defences are old now and I plan to prune them soon!

You also need the lovely DJ Josephs' judgment from Jon8878's thread, like here:

https://forums.moneysavingexpert.com/discussion/6028938/bw-legal-premier-park-limited-loc-unauthorised-entry-parking

Maybe there is something in their defence that you can crib from, too? I suggest ALL defences, except those v ParkingEye, include with the email to the CBCC, Jon8838's judgment as the wording from DJ Josephs is so good and thorough.

thanks Coupon.

Where is the transcipt of the DJ Joseph verdict? I can see a link to a drive with a photo of it but do you have it in text format so i can copy across?