Hw close does a parking sign need to be?

Umkomaas

Does anyone know if it possible to join my counterclaim against UKCPM with my claim against the builder(leaseholder)?

Starting to go beyond the pay grade of a forum basically geared towards fighting private parking charges at first base.

You need legal advice, suggest you take this over to the LegalBeagles forum where many legally qualified/focused posters have more experience/interest in the legal side of things.

KeithP

StClements wrote: »

I have received an MCOL which I have acknowledged online so I guess that means I need to draft up my defense.

What is the Issue Date on your Claim Form?

StClements

KeithP wrote: »

What is the Issue Date on your Claim Form?

8th of August

KeithP

StClements wrote: »

8th of August

With a Claim Issue Date of 8th August, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 10th September 2019 to file your Defence.

That's nearly four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

StClements

Thanks KeithP,
This is my defense mostly copied from Johnersh own space argument, any feedback would be very welcome:
DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXXXX which is the subject of these proceedings. The vehicle is insured with Admiral Insurance with XXXXXXXX of named drivers permitted to use it.

4. It is admitted that on 5/8/2018 and 11/08/2018 the Defendant's vehicle was parked at XXXXXX.

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Claimant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of XXXXXXXXXXXXX, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.
7. What is baffling is that the Claimant continued to pursue this claim against me after confirming in an email that residents of the site had a right to park on the site. A copy of the email will be provided to the court.

8. The Defendant 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. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

8. Accordingly it is denied that:
8.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
8.2. there was any obligation (at all) to display a permit; and
8.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Claim - Failure to set out clearly parking terms
9. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
9.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
9.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
9.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant is a member; and
9.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
9.2. 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. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

10. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.
Alternative Claim - Failure demonstrate legal right to offer a parking service on the site

11.The claimant has not demonstrated what legal right they have to provide or charge for the right to park on the site.

12. It is denied that the Claimant has any entitlement to the sums sought.

13. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of the Defence are true.

Le_Kirk

You might want to remove or obscure your VRM from paragraph 3. Point 7 slips into the first person, it should be something like: -

....... pursue this claim against [strike]me[/strike] the defendant after confirming in an email that residents of the site had a right to park on the site.

If the claim had spurious costs of £60 added, it might be worth searching the forum for the thread by beamerguy (and a comment by Coupon-mad at post # 14 of that thread) using User Name beamerguy and keyword(s) abuse of process. Also search using the same keyword(s)and User Name Johnersh as he has a way of adding it to the defence in summary and saving the bulk of it for the witness statement stage. Otherwise, who am I to go against a defence written by a legal-type?

StClements

Le_Kirk wrote: »

You might want to remove or obscure your VRM from paragraph 3. Point 7 slips into the first person, it should be something like: -


If the claim had spurious costs of £60 added, it might be worth searching the forum for the thread by beamerguy (and a comment by Coupon-mad at post # 14 of that thread) using User Name beamerguy and keyword(s) abuse of process. Also search using the same keyword(s)and User Name Johnersh as he has a way of adding it to the defence in summary and saving the bulk of it for the witness statement stage. Otherwise, who am I to go against a defence written by a legal-type?

It does, thanks Le_Kirk I look it up.

StClements

I found the post you referred to @Le_Kirk (for other peoples benefit: https://forums.moneysavingexpert.com/showthread.php?p=75929156#post75929156)

I've slipped in wholesale the entire abuse of process argument as section 9, unless i'm missing something, there wasn't anything in Johnersh' original argument that is duplicated.

DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXXXXX which is the subject of these proceedings. The vehicle is insured with Admiral Insurance with XXXXXXXX of named drivers permitted to use it.

4. It is admitted that on 5/8/2018 and 11/08/2018 the Defendant's vehicle was parked at St Clements.
defendent
5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Claimant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of XXXXXXXXXXXXXXXXXXXXXXXX, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.
7. It is unfathomable to that the Claimant continued to pursue this claim against the defendant after confirming in an email that residents of the site had a right to park on the site. A copy of the email will be provided to the court.

8. The Defendant 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. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

9. Costs on the claim - disproportionate and disingenuous
- CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

9.1. - Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

9.2. - The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

9.3. - Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

9.4. - According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

9.5. - The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

9.6. - Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
''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 judgment in ParkingEye 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...''

9.7. - 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.

9.8. - 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.

9.9. - 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.

10. Accordingly it is denied that:
10.1 there was any agreement as between the Defendant or driver of the vehicle and the Claimant
10.2. there was any obligation (at all) to display a permit; and
10.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Claim - Failure to set out clearly parking terms
11. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
11.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
11.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
11.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant is a member; and
11.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
11.2. 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. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

12. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.
Alternative Claim - Failure demonstrate legal right to offer a parking service on the site
13.The claimant has not demonstrated what legal right they have to provide or charge for the right to park on the site.

14. It is denied that the Claimant has any entitlement to the sums sought.

15. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of the Defence are true.

Le_Kirk

Modify this: -

Order was identical in striking out both claims without a hearing:
''IT IS ORDERED THAT The claim is struck out as an abuse of process.

to this:-

Order was identical in striking out both claims without a hearing and here the defendant quotes from the cases cited:
''IT IS ORDERED THAT The claim is struck out as an abuse of process.

This is so that the court or judge does not think you are issuing instructions or orders to them. My reason for mentioning the Johnersh connection is because he has advocated a summary of the Abuse of Process in the defence and the full wording retained for the witness statement stage. Since IANAL and he is, I leave you to make your decision, however, most posters are going with the full version in the defence.

StClements

Le_Kirk wrote: »

Modify this: -
to this:-
This is so that the court or judge does not think you are issuing instructions or orders to them. My reason for mentioning the Johnersh connection is because he has advocated a summary of the Abuse of Process in the defence and the full wording retained for the witness statement stage. Since IANAL and he is, I leave you to make your decision, however, most posters are going with the full version in the defence.

Ok understood - certainly don't want the Judge thinking I'm issuing instructions. I've made that amendment but I won't re-post as relatively immaterial. I'm happy to keep the full monty version of 'abuse of process' argument.

Feels like i'm ready to pull the trigger on this one.