County court business centre

machang

I’m assuming I leave section 6 out as I’ve already admitted parking there?

machang

I wouldn’t go that far ��. But yes it’s very educational and beneficial to the toothless simpletons like me that use it.

I best get working on my defence.

Coupon-mad

machang wrote: »

I’m assuming I leave section 6 out as I’ve already admitted parking there?

If section 6 denies being the driver/talks about the POFA, yes leave that out. And at the start where the defence admits being the keeper, also admit being the driver, but deny any contravention or agreement on a parking charge.

machang

Ok, well here goes. This is what I’ve come up with based on the facts and FTB’s defence.

In the County Court Business Centre
Claim Number: xxxxxxxx

Between:


Parking Control Management (Claimant)

v

xxxxxx (Defendant)



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.


1.1. The Claimant has stated that a ‘parking charge’ was incurred.


1.2. 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.


1.3. 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) 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. The Defendant further notes the Claimant's failure to fully engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background

3) It is admitted that at all material times the Defendant was the registered keeper of the vehicle which is the subject of these proceedings. He was also driving the vehicle at the time but denies any contravention or agreement on the parking charges.

4) It is admitted that on the material dates, the Defendant's vehicle was parked at the location stated. This followed verbal consent from a member of staff at xxxx xxxxx after he purchased petrol that ‘as it was only for a short period of time, it shouldn’t be a problem’ for the defendant to park the vehicle while he was volunteering across the road for 4 hours at the charity Sane.


5) This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

6)It is denied that any "parking charges, damages or indemnity costs" (whatever they might be) as stated on the Particulars of Claim are owed. The alleged debt is denied in its entirety.

7)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 putting up parking signs and issuing letters on behalf of the true landowner. The Claimant is put to strict proof.


7.1. It is not admitted that the Claimant has contractual or other lawful authority to make contracts, specifically by offering parking to non-permit holders at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof.


Failure to set out clear parking terms

8) The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of 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) The Defendant avers that the parking signage in this matter was inadequate and no consideration flowed between the driver and the Claimant.


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 International Parking Community's ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and


9.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the driver, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3


9.2 In this case neither the Claimant, nor their principal, the landowner, is offering anything to motorists who do not have a permit. The Defendant avers that the sign - in fact, not seen by the driver due to outside line of sight placement and lack of signage on the entrance - creates a prohibition against parking without a permit. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Driver.


9.3. Even if the Court finds that a non-permit holder should have seen a sign and was a trespasser, this is a matter of tort whereby (as confirmed in the Beavis case and also by the 2012 Guidance Notes relating to Section 56/Schedule 4 of the POFA) only the landowner themselves would be potentially able to pursue damages. In Beavis, this was because Parking Control Management were not in possession and thus unable to pursue damages, one of the same difficulties this Claimant faces, yet they lack the 'legitimate interest/commercial justification’ reasoning that disengaged the penalty rule for Parking Control Management, given the unusual and case-specific facts in the Beavis case.


10) This operation at this location is predatory, with minimal/misplaced signage designed not to be seen from inside a vehicle once parked, in order to penalise unsuspecting drivers rather than offer a clear contract to park at a price. The charge is unconscionable and unfair in this context, with ParkingEye v Beavis fully distinguished.


11) The concept of the fairness of a contract must be considered in every case (Consumer Rights Act 2015). and was considered by District Judge Iyer in Pace Recovery v Lengyel, case C7GF6E3R, on 24 May 2017. The Judge held that 'the concept of fairness requires the parking firm to comply with the requirements of the relevant code of practice' which the parking operator had not; the same difficulty this Claimant faces.

13. The Claimant, or their legal representatives, has added an additional sum of £60 to each of the original £100 parking charges, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

14. It is denied that the Claimant has any entitlement to the sums sought. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £xxx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

15. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.

16. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have been afforded the opportunity to consider it.

I believe that the facts stated in this Defence are true.






………………………………………………………. (Defendant)

……………………… (Date)

Coupon-mad

This followed verbal consent from a member of staff at xxxx xxxxx after he purchased petrol that ‘as it was only for a short period of time, it shouldn’t be a problem’ for the defendant to park the vehicle while he was volunteering across the road for 4 hours at the charity Sane.

I wouldn't call 4 hours a short period so I would change the quote from the garage staff, just say they agreed and authorised you to leave the car there while you carried out your charity work at SANE over the road.

9.3 needs changing back to ParkingEye!!

Redx

for the future, it would be ideal if you can get a WS from the garage manager stating that they authorised you to park on their premises


even better if you can get them to attend as a witness on the day, but either way a paper statement, so you can nominate the number of witnesses (you are witness number 1) and can add your WS and their WS at the WS stage later down the line, as evidence


dont let this aspect stop you from finishing and filing your defence by email attachment, before the court deadline

machang

When I went to the garage recently and spoke to the current manager he said the previous manger at the time no longer worked there. Which is a shame. I doubt he would have afforded to take a day off work to attend court though. I’m assuming once this is filed I will have to attend the court in Northampton on the day?

This is the amended version.

In the County Court Business Centre
Claim Number: xxxxxxxx

Between:


Parking Control Management (Claimant)

v

xxxxxx (Defendant)



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.


1.1. The Claimant has stated that a ‘parking charge’ was incurred.


1.2. 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.


1.3. 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) 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. The Defendant further notes the Claimant's failure to fully engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background

3) It is admitted that at all material times the Defendant was the registered keeper of the vehicle which is the subject of these proceedings. He was also driving the vehicle at the time but denies any contravention or agreement on the parking charges.

4) It is admitted that on the material dates, the Defendant's vehicle was parked at the location stated. This followed verbal consent from a member of staff at xxxx xxxxx given that “they would be authorised to park their car there” while the defendant carried out his voluntary work over the road at Sane.

5) This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

6)It is denied that any "parking charges, damages or indemnity costs" (whatever they might be) as stated on the Particulars of Claim are owed. The alleged debt is denied in its entirety.

7)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 putting up parking signs and issuing letters on behalf of the true landowner. The Claimant is put to strict proof.


7.1. It is not admitted that the Claimant has contractual or other lawful authority to make contracts, specifically by offering parking to non-permit holders at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof.


Failure to set out clear parking terms

8) The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of 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) The Defendant avers that the parking signage in this matter was inadequate and no consideration flowed between the driver and the Claimant.


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 International Parking Community's ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and


9.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the driver, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3


9.2 In this case neither the Claimant, nor their principal, the landowner, is offering anything to motorists who do not have a permit. The Defendant avers that the sign - in fact, not seen by the driver due to outside line of sight placement and lack of signage on the entrance - creates a prohibition against parking without a permit. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Driver.


9.3. Even if the Court finds that a non-permit holder should have seen a sign and was a trespasser, this is a matter of tort whereby (as confirmed in the Beavis case and also by the 2012 Guidance Notes relating to Section 56/Schedule 4 of the POFA) only the landowner themselves would be potentially able to pursue damages. In Beavis, this was because Parking Eye were not in possession and thus unable to pursue damages, one of the same difficulties this Claimant faces, yet they lack the 'legitimate interest/commercial justification’ reasoning that disengaged the penalty rule for Parking Eye given the unusual and case-specific facts in the Beavis case.


10) This operation at this location is predatory, with minimal/misplaced signage designed not to be seen from inside a vehicle once parked, in order to penalise unsuspecting drivers rather than offer a clear contract to park at a price. The charge is unconscionable and unfair in this context, with ParkingEye v Beavis fully distinguished.


11) The concept of the fairness of a contract must be considered in every case (Consumer Rights Act 2015). and was considered by District Judge Iyer in Pace Recovery v Lengyel, case C7GF6E3R, on 24 May 2017. The Judge held that 'the concept of fairness requires the parking firm to comply with the requirements of the relevant code of practice' which the parking operator had not; the same difficulty this Claimant faces.

13. The Claimant, or their legal representatives, has added an additional sum of £60 to each of the original £100 parking charges, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

14. It is denied that the Claimant has any entitlement to the sums sought. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £xxx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

15. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14.

16. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have been afforded the opportunity to consider it.

I believe that the facts stated in this Defence are true.






………………………………………………………. (Defendant)

……………………… (Date)

KeithP

machang wrote: »

I’m assuming once this is filed I will have to attend the court in Northampton on the day?

Unless you actually live very near to Northampton, your assumption is wrong.

It appears you are yet to read Bargepole's 'what happens when' post linked from post #2 of the NEWBIES faq sticky thread.

Coupon-mad

Defence looks fine, just please be prepared and know what to do next and what happens!

machang

Thanks Keith, I’ve found it. Quite reassuring I won’t be hauled off to Guantanamo as originally thought. I’m going to look at the irrelevant defences now.

And thank you Coupon-mad for taking pity on me and pointing me in the right direction. This has been emotional and very educational. It’s good that you guys take time out of your own personal lives to help other people. I tend not to worry about anything, ever, if I can help it, but I’m sure this can cause some people with mental health issues a lot of distress if they don’t have the support to help them fight these cases, so thank you.

I will post my defence as prescribed and await my Directions Questionnaire (form N180).

If I win I win. If I don’t I don’t. I’ve still got my two dogs and a roof over my head.

I’m assuming if I loose I can pay them in 1p coins within the time required. J