BW Legal Letter of Claim

Coupon-mad

I have seen an example of a previous defence on here where VCS issue a windscreen ticket that says 'THIS IS NOT A PARKING CHARGE' and then call it a parking charge afterwards. This is the main premise of my defence but I'm not sure if its strong enough.

It is a decent defence point for a registered keeper who has not admitted to being the driver - check your posts on this thread in case you need to edit anything away from prying eyes (I haven't checked, I'm just saying, make sure they can't try to use this thread against you).

The sign is clear enough but I take your point that there's nothing about how to obtain a permit, and it could be argued due to the largest capital letters that the contract is only offered to permit holders, like in Pace v Lengyel.

Urb14

Coupon-mad wrote: »

The sign is clear enough but I take your point that there's nothing about how to obtain a permit, and it could be argued due to the largest capital letters that the contract is only offered to permit holders, like in Pace v Lengyel.

Could you help me word this into a formal sentence to include in my defense statement? Sorry I'm not good at grammar

Coupon-mad

You can find it done before by lots of people. Search the forum for:

Pace v Lengyel defence impossibility

Urb14

In the area the car was in, there were no marked bays, but there were double yellow lines (strange for a private land as I thought only council can put double yellow lines down?). Could I add this to my defence at all?

KeithP

Anyone can paint double yellow lines anywhere they like - as long as the property owner doesn't object.

That does not mean that such yellow lines have the same meaning as those painted on the public highway by the council.

Urb14

Guys thanks for all your help. I've come to the conclusion that the signage is pretty clear and damning. I don't think arguing impossibility will work as the sign says 'If you do not display a valid permit in full view you agree to pay the parking charge stated below' and there is also a helpline number so what if they say that I should've called the number if I wanted information on how to obtain a permit.
Also is it too late to admit part of the claim, and dispute the extra £60 they've added on to the charge?

Coupon-mad

You will NOT be admitting part or any of this claim. Defend the entire claim.

I've come to the conclusion that the signage is pretty clear and damning. I don't think arguing impossibility will work as the sign says 'If you do not display a valid permit in full view you agree to pay the parking charge stated below'

Wrong.

Signs offering a licence to permit holders only, do not offer any contract to NON permit holders.

The argument about impossibility stands, like it did in PACE v Lengyel where the signs were similar. Nothing has changed, stop doubting your defence.

Urb14

OK, I have drafted up a defence. Please let me know your thoughts!

DEFENCE

1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a red envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

3. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

4. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. 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.

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

7. The Claimant is put to strict proof that it has sufficient propietary proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

8. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

9. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

10. The car appears to have been penalised for parking in a particular bay that was not marked as 'no parking' at all and the car was not obstructing other cars. It appeared to be a bay that could be used, as other drivers have been seen to do at that site before, and it seems the Claimant leaves this bay unmarked, to use it to entrap drivers, contrary to the doctrine of good faith and open dealing.

11. It is denied that the Claimant fulfilled its requirements to erect suitable entrance signs in accordance with Schedule 1 of the IPC’s Code of Practice.

12. It is denied that the Claimant’s signs constitute a fair or relevant contract. The terms and conditions of the sign, or the acceptance of a liability, are not synonymous with a contract.

13. In the alternative, any contract that was established was invalid under the doctrine of impossibility of performance as the Defendant had no means of securing a valid parking permit. The terms and conditions of parking detailed on the Claimant's signs can only apply to those with the authority to park.

14. The POFA, 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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

15. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Coupon-mad

You have an extra (misspelt) word here:

7. The Claimant is put to strict proof that it has sufficient propietary proprietary interest

And I think your point #10 needs to be much higher as it was a bit hidden and is a main point of fact.

Urb14

Thank you, I took out the extra misspelt word, and moved #10 up to #4. Should I submit this now?

DEFENCE

1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a red envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

3. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

4. The car appears to have been penalised for parking in a particular bay that was not marked as 'no parking' at all and the car was not obstructing other cars. It appeared to be a bay that could be used, as other drivers have been seen to do at that site before, and it seems the Claimant leaves this bay unmarked, to use it to entrap drivers, contrary to the doctrine of good faith and open dealing.

5. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. 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.

6. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

7. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

8. 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 pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

9. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

10. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

11. It is denied that the Claimant fulfilled its requirements to erect suitable entrance signs in accordance with Schedule 1 of the IPC’s Code of Practice.

12. It is denied that the Claimant’s signs constitute a fair or relevant contract. The terms and conditions of the sign, or the acceptance of a liability, are not synonymous with a contract.

13. In the alternative, any contract that was established was invalid under the doctrine of impossibility of performance as the Defendant had no means of securing a valid parking permit. The terms and conditions of parking detailed on the Claimant's signs can only apply to those with the authority to park.

14. The POFA, 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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

15. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.