Court Claim - Letter attached - Urgent

Burnhill

Thank you all for your input. Here is my new Defence:

In the County Court

Claim Number: XXXX

Between

UK Car Park Management Limited (Claimant)
19 New Road
Brighton
BN1 1UF

and

XXXX (Defendant)




DEFENCE

1. It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the alleged incident.
1.1. The facts are that the vehicle in question was parked at the xxxx on Sunday, 4th of June, 2017 for just over 3 hours. No retailer on the estate was trading that day and roughly third of the estate was unoccupied. The defendant was not the driver of the vehicle on that day.
2. The Defendant denies liability for the entirety of the claim for the following reasons.
2.1. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
2.1.1. The Claimant has disclosed no cause of action to give rise to any debt.
2.1.2. The Claimant has stated that a parking charge was incurred.
2.1.3. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
2.2. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.
2.3. The Claimant has not complied with the pre-court protocol. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.
The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.
2.4. UK Car Park Management are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
2.4.1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
2.4.2. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
2.4.3. The Claimant is put to prove that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge.
2.5. Inadequate explanation of cost
The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
2.6. The signage was inadequate to form a contract with the motorist
The signage on this site is inadequate to form a contract.
The signage failed the fairness tests established in ParkingEye v Beavis and because of the imprecise wording and failure to adhere to the IPC code of practice, no contract was entered into by the driver.
As parking required a permit, and as the driver did not and could not have a permit, the contract in any case failed by the doctrine of impossibility. As many other judges have found with this type of signage, this would mean no contract could be in place and the driver would be a trespasser. As the claim did not argue trespass, it was therefore bound to fail.
The sign states “Authorised vehicles only”, which is a prohibitive sign. This sign clearly is not capable of forming the basis of a contract.
The sign fails because it must state what the ANPR data will be used for. This is an ICO breach and contrary to the Code of Practice.
The sign does not contain an obligation as to how to ‘validly display’ the ticket in the windscreen, therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
In the absence of ‘adequate notice’ of the terms and the charge, this fails to meet the requirements of Schedule 4 of the POFA.
2.7. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
2.8. The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
Not withstanding the Defendant's belief, the costs are in any case not recoverable.
The Claimant described the charge of £50.00 "legal fees" not "contractual costs”. CPR 27.14 does not permit these to be recovered in the Small Claims Court.
2.9. The Defendant would like to point out that this car park can be fully distinguished from the details, facts and location in the Beavis case. This site does not offer a free parking licence, nor is there any comparable 'legitimate interest' nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015.

I believe the facts stated in this defence are true.


(Name) (Signature) (Date)

Burnhill

I removed the section about 'validly display' parking ticket and added this:

Although the sign states “No parking outside of a designated area / parking bay”, parking bay markings are worn out and utterly unrecognisable, making it impossible to determine where the driver is and is not allowed to park.

Burnhill

Quick question: Do I need to print out, sign and scan the defence or can I use digitised signature? On Preview on OS X we have the Defendants authentic signature stored (signed on paper, scanned in) for document signing which we use most of the time of other documents. Will this be a problem?

nosferatu1001

No, that is entirely fine to use
Convert the whole defence to PDF to email it, however. Dont email the editable doc.

System

Further down the line will be the Witness Statement where the facts of the event will be the main part. So why was the car there for 2.5 hours when the store was closed?

This is going to be your biggest hurdle unless you have a reason (invited?) or a "lucky" judge. Defence is looking very "technical" and could be honed down a bit depending on the answer to the question above.

Burnhill

Have received the following via the post:

Gladstone letter 01-10-18 - https://imgur.com/BjfCYyb
Notice of Proposed Allocation 04-10-18 - https://imgur.com/a/UTFfed0
Mediation letter - https://imgur.com/a/PCdZKAJ

System

Have you a date yet (Notice of Allocation)? Does it give a date for the exchange of papers i.e. Witness Statement?

Have you got your evidence together?

KeithP

Burnhill wrote: »

Have received the following via the post:

Gladstone letter 01-10-18 - https://imgur.com/BjfCYyb
Notice of Proposed Allocation 04-10-18 - https://imgur.com/a/UTFfed0
Mediation letter - https://imgur.com/a/PCdZKAJ

Refer again to Bargepole's walkthrough linked from post #2 of the NEWBIES FAQ sticky thread where you will find comprehensive guidance on exactly how to deal with all three of those.

When you have completed your Directions Questionnaire, send it in the same manner and to the same ccbcaq email address that you sent your Defence.
Refresh your memory by re-reading post #16 above.

Do not forget to send a copy of your DQ to Gladstones.

Burnhill

Will do, thanks.
Is there any reason not to agree to having the case settled on papers?
Gladstones has requested the court send a form for us to agree to this but the court haven't sent anything... presumably I still return the direct questionnaire in the meantime?

KeithP

At this stage I would suggest that you continue with the idea that a hearing will take place.

At a later stage, up to seven days before the hearing, you can write to the court stating that you will not be attending and for the hearing to take place in your absence.

If you do not attend remember that you will be giving up the opportunity to challenge anything the Claimant may say.

Is it just the thought of court that puts you off?
If so, have a look at this video:

www.youtube.com/watch?v=n93eoaxhzpU