Britannia Parking POPLA appeal

crazydoglady91

Hi all,

So I got served up the court papers on the 13th May (that's the date on the paperwork), and I completed the acknowledgement of service online shortly after. Today I'll be doing some research and starting to knit together my defence, but I thought I'd post an update and check through a few things here first.

To be honest, this is the last thing I need right now... I got married a few days ago (yay!), my Dad got diagnosed with cancer 2 months ago and is starting his chemo next week (boo), and I'm on sick leave because my mental health has gone down the toilet (double boo) :wall:

So lately I've been wishing to any entity available that Britannia and BW Legal might kindly disappear off of the face of the earth... But here we are!

So the things I want to address in my defence are as follows:

1. The particulars (or lack thereof) of the claim. The forms basically just states the date, time, and location of the alleged contravention and that the defendant has failed to pay up. This doesn't seem very "particular" to me.

2. Signage. The signs at the site are god-awful, with all but one positioned behind parking bays so that they will be obscured in a busy car park. Both Britannia and POPLA ignored this point in my appeal.

3. Poole Byelaws. I couldn't find a lot of info on this to put into my POPLA appeal, so I pretty much stated that the proximity to the quay and harbour means that the land is most likely covered by these byelaws and "put Britannia to proof" on this. Again, no reply on this point.

4. Case is distinguished from Beavis because of signage and it was a Pay & Display plus ANPR car park. A sum of £5 was already paid for the parking period, so a fine of £100 can not represent loss for an alleged overstay of ~30 minutes in this case.

Does anyone have any feedback on these points before I start? I admit that "legalese" is not my forte...

Thanks in advance :beer:

crazydoglady91

By the way, thanks for nudging me in the right direction at the previous stage, Coupon-mad!

KeithP

crazydoglady91 wrote: »

So I got served up the court papers on the 13th May (that's the date on the paperwork), and I completed the acknowledgement of service online shortly after.

With a Claim Issue Date of 13th May, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 17th June 2019 to file your Defence.

That's nearly two weeks away. Loads of time to produce a good Defence, but 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.

crazydoglady91

Thanks, KeithP. I’ll make sure I take these steps, and I’ll post a draft of my defence here soon. I’m aiming to keep it short and sweet, except perhaps the signage section. I really want to drive home the point that their positioning is absurd.

POPLA didn’t seem to get it, they just saw that there were around 15~ signs dotted around the car park and deemed that sufficient. They didn’t take my evidence showing how easily they become obstructed into account at all, so I want to lay it out as clearly as I can.

KeithP

You are right to address the signage issue 'in depth' but most of that is for your Witness Statement and evidence stage which comes later.

In your Defence, there is no need for much more than a short paragraph saying that the signs were insufficient in both quality and quantity.

crazydoglady91

Right, I've muddled through and put together a draft of my defence. I've put some bits I'm more unsure about in bold, mainly for the Byelaws section. I couldn't find any other cases on here specifically for Poole Harbour, so I googled and only found one document (2012), so the part about Statutory Control of Poole Harbour is probably wrong. Perhaps I should change it to "Poole Harbour Commissioners"?

Anyway, let me know if you have any input!

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

BRITANNIA PARKING GROUP LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)


DEFENCE

1) The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2) The Particulars of Claim state that the Defendant XXXX was the registered keeper and/or the driver of the vehicle(s) XXX. 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. The Claimants are
known to be serial issuers of generic claims similar to this one. HM Courts Service
have identified over 1000 similar sparse claims. I believe the term for such behaviour
is roboclaims and as such is against the public interest.

Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point:

1.4 The following are examples of cases where the court may conclude that particulars of
claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):

1. those which set out no facts indicating what the claim is about, for example ‘Money
owed £1000’,
2. those which are incoherent and make no sense,
3. those which contain a coherent set of facts but those facts, even if true, do not
disclose any legally recognisable claim against the defendant

3) 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.

4) 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. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked'.

5) The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. All but one of the signs at the site are located behind parking bays, meaning that they ae easily obstructed in a busy car park. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

6) It is denied that the Defendant was the driver of the vehicle, therefore the Defendant cannot be held liable. The Claimant is put to strict proof.

a. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was as to the identity of the driver.

b. As was clearly confirmed in the POPLA Annual Report 2015, by barrister and parking expert (POPLA and PATAS Lead Adjudicator) Henry Greenslade, under a specific section called 'Understanding Keeper Liability', a registered keeper has no lawful obligation whatsoever to name the driver to a private parking firm. Nor can any adverse inference can be drawn and no presumption can be made, and nor does the law of agency apply.

c. In short, there is no mechanism whereby a keeper can be held liable, out with the POFA.

d. Where a registered keeper was not driving, then that person (in this case, the Defendant) can only be potentially liable for a 'parking charge' relating to the conduct of another driver, if all aspects of Schedule 4 have been met. They have not, and cannot be, on this land where the parking of vehicles is already defined in the Statutory Control of the Poole Harbour Byelaws, which will be adduced in evidence, along with a previous case this Claimant has lost on the same basis at the same site.

e. Parking at this site is subject to the Poole Harbour Revision Order 2012, and as such, this location is not 'relevant land' for the purposes of the POFA, and no 'registered keeper liability' can be established in law regarding this specific land.

f. The Claimant asserts that the Claimant is would have therefore been limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("the POFA") but this law only applies on 'relevant land'. There is no lawful possibility of keeper liability for a private firm operating on non-relevant land' (under statutory control of Byelaws) and the POFA makes this very clear at para 3(1) of Schedule 4:

''in this Schedule 'relevant land' means any land (including land above or below ground level) other than:
- a highway maintainable at the public expense (within the meaning of section 329(1) of the Highways Act 1980);
- a parking place which is provided or controlled by a traffic authority;
- any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.''

7) Failure to set out clear parking terms - ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished.

a. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

b. 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. This case is distinguished from the Beavis case in that there are inadequate signs which are incapable of binding the driver who did not park and enter into any contract, and the Defendant was not that driver and cannot be held liable on non-relevant land' (the POFA definition applies).

c. As the site is not of commercial value and a sum of £5 was already paid for the parking period, a fine of £100 cannot represent loss for an alleged overstay of ~35 minutes in this case.

d. This land is not comparable with the retail park in Beavis, and nor are the facts of the case.

8) The Protection of Freedoms Act 2012, Schedule 4, 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.

9) 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 contained in this Defence are true.

Name
Signature
Date

Le_Kirk

Your points 6a, 6f and 7a don't make sense, worth having a look and a rewrite. You also might want to add a point about landowner authority. See one of Bargepole's concise defences in the NEWBIE thread.

martindias

Sorry not clear how to set up a new topic relevant to this discussion

I recently received a Parking Charge Notice from Care Parking based in Ewloe (where is That?). It says I parked illegally (over staying a two hour limit). It gives a street name but no town or Postcode.

Yes there is a pic of my car entering and apparently leaving but I've no idea where this is/was and therefore what my grounds of appeal might be. Is it legal to issue a PCN without giving a clear address as to where the 'offence' took place?

KeithP

martindias, please start a new thread.

It is unfair on the original poster to try and divert this thread in your direction and trying to deal with the issues of two different people can only lead to confusion.

Thanks for your understanding.

martindias

i'm trying to - i wish it was more obvious