MCOL Issued

Loadsofchildren123

https://forums.moneysavingexpert.com/discussion/5640401/1-big-car-park-2-landowners-valid-parking-ticket-but-parking-charge-issued

mand898

Any advice please ?

mand898

In the County Court
Claim Number:
Between
(xxxxxx)Claimant
and
(xxxxxx)) Defendant


Defence

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all
.
2. The Defendant has shown by paying for a parking ticket the willingness to pay to park and this is a "de minimis" issue. At best the Defendant owes the tariff and not the "penalty" element.
2.1 The Defendant claims the signage and parking meter in the Claimants car park were insufficiently lit to offer a means to correct payment. Whereas in the Council operated car park on the same site, there was lighting supplied to enable The Defendant to see signage and the parking meter.
2.2 The Defendant claims inadequate signage to differentiate between the two adjacent car parks.
2.3 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 yellow/black 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.
2.4 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.

3. 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.

4. 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.

5. The signage was inadequate to form a contract with the motorist.
a) Signs are too high to be easily seen from a car thus failing International Parking Community ('IPC') Code of Practice ( 'CoP') guidelines
b) The car park has 2 different landowners; one area owned by the local council; the other privately owned and managed by the Claimant. There is no signage at change of land ownership which goes against Approved Operator Scheme ('AOS') CoP guidelines.
c) There is also no fence at land ownership boundary to stop travel between 2 areas. A driver who bought a legitimate ticket for Council area of car park but unknowingly ends up parking in the private area of car park can be penalised without knowing it and vice versa. A form of entrapment which it feels like in this case. IPC CoP Part B 14.1 says "You must not use predatory or misleading tactics to lure drivers into incurring parking charges Such instances will be viewed as a serious instance of non-compliance"

6. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The signage reads: 'By parking or remaining on this private land you are entering into a contract with Vehicle Control Services'.
6.1 The terms of the sparse signage make no offer available; there is no licence to park.
6.2 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.
6.3 County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.

7. 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.
7.1 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.
7.2 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.

8. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the NTK, 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.


9. The Claimant has sent threatening and misleading demands which stated that
further debt recovery action would be taken to recover what is owed by passing the
debt to a ‘local’ recovery agent (which suggested to the Defendant they would be
calling round like bailiffs) adding further unexplained charges of £60 to the £100 with no evidence of how this extra charge has been calculated.
No figure for additional charges was 'agreed' nor could it have formed part of the
alleged 'contract' because no such indemnity costs were quantified on the signs.
Terms cannot be bolted on later with figures plucked out of thin air, as if they were
incorporated into the small print when they were not.
b) The extra charges appear to be an added cost with apparently no qualification and an
attempt at double recovery, which the POFA Schedule 4 specifically disallows.
c) The Defendant has the reasonable belief that the Claimant has not incurred £60 costs
to pursue an alleged £100 debt.
d) The POFA Para 4(5) states that the maximum sum that may be
recovered from the keeper is the charge stated on the NTK.

10. Data Protection Act ('DPA') breach
For the reasons set out above, the parking charge which is the subject of these proceedings is invalid. The Claimant therefore had no right to request the keeper’s details from the DVLA and to use them, and has breached the Defendant’s rights under the DPA by doing both. Vidal-Hall v Google Inc [2014] EWHC 13 (QB) is authority that misuse of personal data is a tort. Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 is authority that a reasonable sum of compensation would be £750. The Defendant reserves his rights in respect of these matters.

11. 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.


I believe the facts stated in this defence are true.

Coupon-mad

Whereas in the nearby Council operated car park,

Don't say 'nearby'. Say 'on the same site'.

Redx

and its just DEFENCE ( no STATEMENT)

mand898

OK, thanks very much for the great advice everyone, Is this Ok to go now ?

Coupon-mad

Where you use an acronym the first time you need to put it in full first, like I did here:

a 'charge notice' ('CN') was affixed

the premature Notice to Keeper ('NTK') that was posted,

Do the same with IPC, CoP, AOS.

and conversely, as you already have the POFA defined higher up, this needs the acronym 'POFA' instead:

d) The POFA [STRIKE]Protection of Freedom Act[/STRIKE] Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

mand898

OK I just received a letter from the County Court requesting my defence within seven days from now. Any tips on this please ?

Le_Kirk

Did you not send the one you wrote in November 2018? check this thread and look at post # 3 and you will find a the method (written by KeithP) of how to submit a defence.

mand898

Yes i submitted my draft defence and checked it was marked as defended in MCOL in November. Today I received a letter from my local county court asking for a copy of my defence within 7 days