County court claim on a PCN from 4 years ago

Coupon-mad

Four more now:

earth_moon626

Cawills2018

NikiFm

elithia


Do bookmark ALL of them - I've been giving all of the 'PPS defence group' all the usernames. I did tell all of you, swap pm's and look at each other's threads and defences, you can all support and help each other so we don't have to reply again and again on all ten or so threads (that are all the same!).

We will help of course but we hope you will all look at all ten or so threads first, regularly.

Matilda13

Hi There,
I haven't heard anything from BW legal regarding further information. I have now submitted an SAR to PPS. I need to get my defence off to the county court and have a draft below (it is pretty generic but even with old emails/photos can't pin point a reason why any insured drivers would have been near that carpark on the day of the alleged parking offence). Any advice on the following defence would be appreciated.


It is admitted that Defendant is the registered keeper of the vehicle in question.

However the Claimant has no cause of action against the Defendant on the following grounds:-

1. This Claimant has not complied with pre-court protocol:

(a) There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.

(b) The Claim form Particulars of Claim were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the original charge was, what the alleged contract was; nothing that could be considered a fair exchange of information. The vague particulars of claim disclose no clear cause of action. The parking event was far too long ago to expect a registered keeper to recall the day or who was driving.

2.The Protection of Freedom Act 2012 Schedule 4 has not being complied with. The registered keeper was unaware of the PCN and does not admit to being a driver of the vehicle in question on the date in question, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of charge and prescribed Notice to Keeper letters in time/with mandatory wording.

3. Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.

4. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £120 after exceeding a licence to park free. None of this applies in this material case.

5. Had any contravention apparently taken place (and this is not confirmed), it can only have been that signage on and around the site in question was small, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice.

The Claimant was a member of the BPA at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by PPS or any additional fee charged if unpaid in 28 days.

6. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Premier Parking Solutions Ltd and that this chain of contracts was valid in its entirety on the date of the alleged offence.

In absence of the above proof the defendant would contest that a) PPS Ltd is not the lawful occupier of the land b) Failure of the claimant to produce a contract with the lawful occupier of the land, or a chain of contracts showing authorisation stemming from 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 locus standing to bring this case.

7. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

8. Prior to any court hearing the defendant would like to make;
a) A request to explain if PPS Ltd are making a claim as an agent of the landowner or making the claim as occupier in their own right.
b) A request to explain if the amount claimed by PPS Ltd is for a genuine pre estimate of loss for a breach of contract or a contractual sum
c) A request to provide copies of the signs on which PPS Ltd rely and confirm the signs were in situ on the date of the event. Also to provide the date the signs were installed.
d) A request to confirm that the signs were at the entrance to the site on the date in question. Also to confirm that the signs meet the British Parking Association's Code of Practice Appendix B (Entrance signs)
e) A request to provide a copy of the PCN terms and conditions
f) A request to provide copies of any letters sent, including the original Notice to Keeper.
g) A request for a full breakdown of the amount of the claim and how the amount was derived.
h) A request to provide if there were any changes to the amount claimed owed, and what was the basis for this change.
i) A request to find out how keeper details were obtained.
j) A request for reasons why the keeper has liability.

As of Xth XXXX 20XX the claimant has failed to supply the above information to the defendant.

9) The charge is an unenforceable penalty, neither based upon a genuine pre-estimate of loss nor any commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. For this claim the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:- a) The Claimant has no commercial justification b) The Claimant did not follow the BPA Code of Practice c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

10. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred.
11. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum. 12. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
13. The Defendant invites the court to strike out the claim as having no prospect of success. Alternatively, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim.

I believe that the facts stated in this Statement of Defence, xx/xx/xxxx are true."

SIGNED DATE

Coupon-mad

That's a good draft but I've tried to focus it a bit more (as much as you can!)

IN THE COUNTY COURT

CLAIM No: to be added in the original

BETWEEN:

Private Parking Solutions Ltd (Claimant)

-and-

xxx Matilda 13 xxx(Defendant)

DEFENCE

1. It is admitted that Defendant is the registered keeper of the vehicle in question. However the Claimant has no cause of action and has filed this claim without providing any information to the Defendant whatsoever.

1.1 Neither the Defendant, nor any other possible drivers, recall any 'parking charge notice' (PCN) from the past, nor does the Defendant even know where the car park was, having only the vague Particulars of Claim (POC). Any contractual agreement - and thus any breach - is denied.

2. [STRIKE]This Claimant has not complied with pre-court protocol.[/STRIKE] The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, thereby vaguely offering a menu of choices copied from BW Legal's latest batch of robo-claims issued in September 2018. The Claimant has and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

2.1. This Claimant has not complied with pre-court protocol. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction and the Defendant has no idea what the claim is about - why the charge arose, what the original charge was, what the alleged contract was; nothing that could be considered a fair exchange of information.

2.2. The vague POC discloses nothing that can lead to a claim in law. The parking event was far too long ago to expect a registered keeper to recall the day or who was driving, and it is believed from the Defendant's research of similar cases, that this Claimant did not use compliant documents to hold a registered keeper liable anyway.

3. The Protection of Freedoms Act 2012 Schedule 4 (the POFA) has not been [STRIKE]being[/STRIKE] complied with. The registered keeper was unaware of the PCN and does not admit to being a driver of the vehicle in question on the date in question, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of charge and prescribed Notice to Keeper letters in time/with mandatory wording.

[STRIKE]3. Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. [/STRIKE]

4. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. From research of similar cases and given the woeful POC and lack of any previous information, the Defendant doubts that any legitimate interest or clear signage applies in this case.

5. Had any contravention apparently taken place (and this is not confirmed), it can only have been that signage on and around the site in question was small, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice (CoP).

5.1. The Claimant was a member of the BPA at the time and committed to follow its requirements, and the Defendant puts the Claimant to strict proof of compliance with the applicable Code of Practice. [STRIKE]Therefore no contract has been formed with driver to pay the amount demanded by PPS or any additional fee charged if unpaid in 28 days. [/STRIKE]

6. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Premier Parking Solutions Ltd and that this chain of contracts was valid in its entirety on the date of the alleged offence.

[STRIKE]In absence of the above proof the defendant would contest that a) PPS Ltd is not the lawful occupier of the land b) Failure of the claimant to produce a contract with the lawful occupier of the land, or a chain of contracts showing authorisation stemming from 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 locus standing to bring this case.[/STRIKE]

7. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

8. Prior to any court hearing the Defendant has sent the Claimant a Subject Access Request (SAR) for the following:
[STRIKE]a) A request to explain if PPS Ltd are making a claim as an agent of the landowner or making the claim as occupier in their own right.
b) A request to explain if the amount claimed by PPS Ltd is for a genuine pre estimate of loss for a breach of contract or a contractual sum
c) A request to provide[/STRIKE]
8.1.(i) copies of the signs on which [STRIKE]PPS Ltd rely[/STRIKE] the Claimant relies and confirm with photographic evidence, that the signs were in situ on the date of the event.

[STRIKE]Also to provide the date the signs were installed.[/STRIKE]

[STRIKE]d) A request to confirm that[/STRIKE] (ii) Images of the signs that were at the entrance to the site on the date in question. Also to confirm that the signs [STRIKE]meet[/STRIKE] met the BPA CoP that applied at the time of the alleged parking event. [STRIKE]British Parking Association's Code of Practice Appendix B (Entrance signs) [/STRIKE]
[STRIKE]e) A request to provide a copy of the PCN terms and conditions
f) A request to provide[/STRIKE]
(iii) copies of any letters sent, including the original PCN and/or Notice to Keeper.
[STRIKE]g) A request for[/STRIKE]
(iv) a full breakdown of the amount of the claim and how the amount was derived.
[STRIKE]h) A request to provide if there were any changes to the amount claimed owed, and what was the basis for this change.
i) A request to find out how keeper details were obtained.[/STRIKE]
[STRIKE]j) A request for[/STRIKE] (v) the Claimant's reasons why they believe the keeper has liability.

[STRIKE]As of Xth XXXX 20XX the claimant has failed to supply the above information to the defendant.[/STRIKE]

[STRIKE]9) The charge is an unenforceable penalty, neither based upon a genuine pre-estimate of loss nor any commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. For this claim the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:- a) The Claimant has no commercial justification b) The Claimant did not follow the BPA Code of Practice c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
[/STRIKE]

[STRIKE]10.[/STRIKE] 9. The POFA [STRIKE]Protection of Freedoms Act[/STRIKE] does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. That sum cannot have exceeded the BPA CoP ceiling of £100 and the Claimant cannot recover additional charges.

10. The Claimant has inexplicably added 'costs or damages' bolted onto the alleged PCN, despite using a solicitor to file the claim, who must be well aware that the CPR 27.14 does not permit such 'admin' charges to be recovered in the Small Claims Court.

10.1. In any event, the Beavis case confirmed that a parking firm not in possession cannot plead their case in damages and could only collect the already inflated parking charge (in that case, £85) which more than covered the very minimal costs of running an automated/template letter parking regime.

10.2. The Claimant is put to strict proof to show how any alleged costs/damages have been incurred and that it formed a prominent, legible part of any terms on signage, and that it was, in fact, expended. To add vague damages plus alleged 'legal costs' on top is a wholly disingenuous attempt at double recovery, and the Defendant is alarmed by this gross abuse of process.

[STRIKE]11. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

12. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.[/STRIKE]

[STRIKE]13.[/STRIKE] 11. The Defendant invites the court to strike out the claim as having no prospect of success. Alternatively, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim and allow the Defendant to respond to those POC.

12. The Defendant has sent a SAR to the Claimant, for response during October 2018, and will expand upon the denial of breach in the witness statement and evidence, once the Defendant has seen the details from the SAR and/or in the event that the Court orders the Claimant to file & serve better particulars.

13. It is denied that the Claimant is entitled to the relief claimed or any relief at all. In summary, it is the Defendant's position that the poorly pleaded claim discloses no cause of action, is without merit, and has no real prospect of success.


STATEMENT OF TRUTH

Matilda13

Thank you so much for your time

The_Deep

BW legal are attempting to obtain from you monies to which they and their client appear not to be entitled to in law. This is, imo unprofessional, conduct likely to bring their profession into disrepute, and a breach of the profession's Code of Conduct.

I would therefore suggest that you ask their regulatory authority if they condone such conduct.

http://www.sra.org.uk/home/home.page

Coupon-mad

Send the SAR to the parking firm first, but don't miss the defence deadline.

Matilda13

In further news, information has been sent from both gangs, now. B dub has sent a copy of the Letter of Claim (interestingly the monies requested then were higher than the current court claim). The DPO at PPS has sent photos of the vehicle and the original PCN. This has shed some light on the original PCN. There is a photo that includes signage in the background, but it is impossible to read the sign from this.

However, our main observation, and the reason we could not recognise the original charge, is that the address location of the original offence is incorrect. The address and postcode of the PCN location is not where the car is parked. Now we have seen the photos, we know where it is. The address is also incorrect on the LBC and the court claim.

So does that now give us an alternative defence?
Many thanks!

The_Deep

… However, our main observation, and the reason we could not recognise the original charge, is that the address location of the original offence is incorrect. The address and postcode of the PCN location is not where the car is parked. Now we have seen the photos, we know where it is. The address is also incorrect on the LBC and the court claim...

Clearly such misinformation is wasting your time. If this gets to court and you win, ask the judge to award unreasonable behaviour costs under CPR 27.14(2)(g) for your time, and complain to the SRA that BW Legal are asking for costs which they know they/their client has no entitlement to. Also comolain to your MP, watch the video.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P.
for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the House of Commons recently

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41 recently.

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

Matilda13

I certainly hope so. It is a terrible waste of everyone’s time and energy.
But how can this be a valid case if the address of the alledged contravention and that of the place that the car is actually parked (a couple of postcodes away) is different?

harrys_dad

Matilda13 wrote: »

I certainly hope so. It is a terrible waste of everyone’s time and energy.
But how can this be a valid case if the address of the alledged contravention and that of the place that the car is actually parked (a couple of postcodes away) is different?

You are missing the point, none of the cases are valid but you need to go through the process and prove that in court, which you will.