Help please - have i made a mistake?

Coupon-mad

No, that is all we have and you are meant to use it.

Attach to your defence email, as a second attachment, that transcript.

You certainly DO NOT want a useless second hand 'text' format which isn't the original! The point is, that came from the Judge himself.

Standupforyourself

Coupon-mad wrote: »

No, that is all we have and you are meant to use it.

Attach to your defence email, as a second attachment, that transcript.

You certainly DO NOT want a useless second hand 'text' format which isn't the original! The point is, that came from the Judge himself.

HI Coupon, sorry to clarify:

are you saying i should type it out and include it as a paragraph in my defence statement but then also add the picture of the original as a separate file to support?

Redx

Standupforyourself wrote: »

HI Coupon, sorry to clarify:

are you saying i should type it out and include it as a paragraph in my defence statement but then also add the picture of the original as a separate file to support?

I suppose you could do that, or just write a short precis and add it as an exhibit to your witness statement


you do not normally include pictures or attachments in a defence , but you do at the WS + EXHIBITS + COSTS SCHEDULE stage , but CM would be the one to clarify properly

Standupforyourself

yes thanks. That's what i was getting at.

Am I best leaving any exhibits to the Witness Statement stage. Dont wish to jump the gun. Thats why i was suggesting typing it out verbatim if there is no transcript handy.

Coupon-mad

No. We suggest attaching it to a defence. That is what we are saying.

We want Judges to see that judgment earlier than they would with a WS.

No-one is saying to type it about as well! All you need is a line telling the Judge what the attachment is, and pointing out it is the same Claimant.

Standupforyourself

ah well, i went to the trouble of typing it out verbatim anyway! see below. Although i would say that it is word for word almost the same as the wording in the Judge Taylor verdict...

9.5 Additionally, in another recent case, Deputy District Judge Josephs (County Court Warwick) emphatically dismissed another case from The Claimant ( Claim No. F5DP2D6Y) on the subject of Abuse of Process:
"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 nor with reference to the judgement in Parking Eye v Beavis…Additionally S71(2) of the Consumer Rights Act 2015requires the court to consider the fairness of a contract of terms and the provision of additional charges falls into examples 6,10 and 14 of the indicative list of unfair terms in Schedule 2 of that act. 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…”

Standupforyourself

Hi Eevryone. I am very close to deadline for having to submit the defence and so i need to use to today as a final chance to vet the details. I will list the full defence and would kindly ask all you fantastic experts your final views on this. I have reformatted and changed some of it to reflect a more recent successful defence. Thanks again:

DEFENCE

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 is 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. Photographic evidence of such signage will be presented.

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.

9.1. These charges pertaining to this case have been variously described as a BW Legal “initial legal cost” (in the pre-action exchange of letters) and/or a “debt recovery costs” (which do form part of any terms on signage and cannot be added, not least because it was never expended).

9.2. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste PPS robo-claims at all, on the balance of probabilities.

9.3 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. 

9.4 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”

9.5 Additionally, in another recent case, Deputy District Judge Josephs (County Court Warwick) emphatically dismissed another case from The Claimant ( Claim No. F5DP2D6Y) on the subject of Abuse of Process:

"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 nor with reference to the judgement in Parking Eye v Beavis…Additionally S71(2) of the Consumer Rights Act 2015requires the court to consider the fairness of a contract of terms and the provision of additional charges falls into examples 6,10 and 14 of the indicative list of unfair terms in Schedule 2 of that act. 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…”

9.6 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)

9.7 Suddenly in the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £265.42. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process

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."

Le_Kirk

ALL paragraphs require a number even that starting "The defendant denies...." Simple numbering is preferred. I believe, in a recent post, Coupon-mad has advocate removal of the Ladak case. Check it out by searching the forum. It is just Defence [strike]Statement[/strike].

Standupforyourself

Key Questions, other than does it all make sense:

Does part 1 make sense re POFA and the NTK? I have lead with this and if it is BS i will remove but a claim appeared to be won on this point recently although how i am still unsure (see post #277)

Do i need to include the use of ANPR being unlawful by council controlled car park? Is this actually a thing? For the record i have contacted the Dpt for Transport for comment.

Lastly, for those interested, I have been in regular contact with the town council at Ilfracombe and this week they gave me the following information:

- Ilfracombe Town Council bought the land using a capital loan from the Public Works Loan Board. The land belongs to Ilfracombe Town Council, thus making it private land in respect of parking arrangements and up until now is has not been under an Off-street parking order.
NDC now manage the enforcement on the land, NDC are a traffic authority and therefore the car park is under an off-street parking order

- Premier Park did not lease the land from ITC, there was no transfer of ownership, Premier Park and ITC simply had a management agreement for parking arrangements.
ITC had no involvement with the parking charge notices – all monies went to Premier Park. ITC were and are in receipt of all ticket machine funds.

- ITC has no official position on the cameras, the cameras did not form any part of the decision to terminate the agreement.

Coupon-mad

Standupforyourself wrote: »

ah well, i went to the trouble of typing it out verbatim anyway! see below. Although i would say that it is word for word almost the same as the wording in the Judge Taylor verdict...

9.5 Additionally, in another recent case, Deputy District Judge Josephs (County Court Warwick) emphatically dismissed another case from The Claimant ( Claim No. F5DP2D6Y) on the subject of Abuse of Process:
"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 nor with reference to the judgement in Parking Eye v Beavis…Additionally S71(2) of the Consumer Rights Act 2015requires the court to consider the fairness of a contract of terms and the provision of additional charges falls into examples 6,10 and 14 of the indicative list of unfair terms in Schedule 2 of that act. 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…”

The BIG DIFFERENCE and the reason to attach that one though...

...is that the one I want you to attach is from jon8838's thread and was about PREMIER PARK. The point is to show that THIS CLAIMANT KNEW they can't add this false £60.

Your narrative doesn't even mention that this one is about YOUR CLAIMANT!