Multiple PCNs expected

Coupon-mad

We have since received a further LBC for another PCN so wish to have any other claims handled under the same hearing, if it in fact comes to that.

Adapt the wording when you search for these keywords and 'show results as posts':

two claims? abuse of process consolidated

And repeat it and repeat it in a covering letter or email AT EVERY STAGE till your local Judge spots that there are (will be) two claims in play, that need a consolidated hearing.

Fruitcake

SeaHaven wrote: »

Thanks Fruitcake.
There was no need to send further proof of ID. We used the same email address they have corresponded with us, and we requested the data be posted to the keeper's address as provided by the DVLA.
If you feel strongly that we need to send proof of ID this can be accommodated, but from our perspective, unnecessary according to law as they already know the keeper's identity. Fundamentally we just want the data, so will do what is reasonable and necessary to achieve it.
We have completed the AoS online and confirm nothing submitted at all in defence at this time. We have limited time to submit a defence, about a week and a half.
Will read bargepole's advice in the Newbies thread - thanks for signposting!

A reasonable person would agree that an SAR from the same person whose name and address appears on the PCN/court claim would be acceptable, but you are dealing with scammers.

I suggest you resend the SAR with a copy of the V5. Send the comments about seeking debt advice as well to the scamlicitors in order to get yourself the time for the SAR to be answered.

I would complain anyway to the ICO that the scammers have failed to respond to the original request, as there was enough information for them to identify you as the data subject.

SeaHaven

Thanks Coupon-mad. I interpret your advice as, send a covering letter with the Defence statement pointing out that we are in receipt of a second LBC, and we anticipate a further Claim. Thereafter, if indeed we do receive further Claims, then we should include bargepole's wording in each letter and Defence thereafter.

… just about to post my revised Defence having adapted it from the helpful advice posted above.

SeaHaven

DEFENCE

Preliminary Matters.

(1). The claimant failed to include a copy of their written contract as per Practice Direction
16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the
Claimants contractual authority to operate there as required by the Claimants Trade
Association's Code of Practice B1.1 which says
1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges. There is no prescribed form for such agreement and it need not
necessarily be as part of a contract but it must include the express ability for an
operator to recover parking charges on the landowner’s behalf or provide sufficient
right to occupy the land in question so that charges can be recovered by the operator
directly. This applies whether or not you intend to use the keeper liability provisions.

(2). The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as
there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by Civil Procedure Rules (CPR) 16.4 1(a). 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). The Claimant has not complied with the pre-court protocol.

1. The Court is referred to Para 4 on non-compliance and sanction, and there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.


(4). The claimant failed to abide by Schedule 4 of POFA 2012, which clearly states: -

9 (4) The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

In this instance whilst the date of issue of the Parking Charge Notice (PCN) was XXXXXX, the PCN was in fact received by post on XXXXXX, some 23 days after the alleged date of parking. There was no reason for such a lengthy delay in the public postal system, and the defendant contests the validity of the Issued Date as published, as to date the claimant has presented no evidence of the actual date of postage of the PCN. It could be interpreted that the claimant has falsified the Date of Issue of the PCN to appear as if it had complied with POFA 2012. It is assumed that the PCN was produced by means of a modern digital publication system, and as such, a digital record held by the claimant should easily prove or disprove the date upon which the document had been produced. The defendant has not been furnished with such evidence, and therefore contests the claimant’s assertion that the Date of Issue is true.

On the basis of the above, the defendant requests the court strike out the claim for want of a cause of action.


I am XXXXX, defendant in this matter. It is admitted that the defendant was the
authorised registered keeper of the vehicle in question at the time of the alleged
incident.
The defendant denies liability for the entirety of the claim for the following reasons: -

(5) (Subject to the Court’s indication that point (4) in Preliminary Matters above is agreed)
The identity of the driver of the vehicle on the date in question has not been ascertained.
1. The claimant did not identify the driver.
2. The defendant has no liability, as they are the Keeper of the vehicle and the claimant
must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to
hold the defendant responsible for the driver’s alleged breach.

(6) The claimant has not provided enough details in the particulars of claim to file a full
defence. In particular, the full details of the contract which it is alleged was broken
have not been provided.
1. The claimant has disclosed no cause of action to give rise to any debt.
2. The claimant has stated that a parking charge was incurred.
3. The claimant has given no indication of the nature of the alleged charge in the Particulars of Claim.
4. The Particulars of Claim contains no details and fails to establish a cause of action.
The claimant has therefore disclosed no cause of action which would enable the defendant to prepare a specific defence.
It just states “parked” 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.
5. On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’
6. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

(7) The claimant has not complied with the pre-court protocol.
1. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.

(8) The defendant wrote to the claimant on xxxxx asking for:
a) All data held about the defendant
b) All evidence the claimant intends to use against the defendant (to include a copy of the contract with the landowner under which the claimant asserts authority to bring a claim against the defendant; a copy of the alleged contract with the driver; a plan showing where any signs were displayed and details of the signs displayed).
c) All letters/emails sent and received (including the claimant’s correspondence with the DVLA to obtain the defendant’s personal details and any appeal correspondence).
d) A full copy of the parking charge notices
e) All photos taken
f) A list of all PCNs the claimant considers are outstanding against the defendant.
g) A close-up image of the signage at XXXXXXXXX.
h) Evidence the claimant has paid a debt collector.

The claimant failed to provide any of the information requested, and instead insisted that the defendant must complete a further form to enable the claimant to process the request. The claimant has therefore failed in its legal duty to fulfil a lawful Subject Access Request. After receipt of the County Court Claim Form, and in order to begin the process of defending this claim, the defendant sent a further Subject Access Request to the claimant dated XXXXXX pointing out that by law they MUST provide the defendant with the data, and that the defendant WILL NOT complete an additional form which only serves to unnecessarily delay their response. To date a response has not been forthcoming, putting the defendant at a distinct disadvantage.

(9) Withholding any relevant photos of the car, particularly the windscreen and dashboard, and the signage terms, despite being asked for by the defendant at the outset, is against the SRA code as well as contrary to the ‘overriding objective’ in the pre action protocol.
As Gladstones are a firm of solicitors whose Directors also run the IPC Trade Body and deal with private parking issues every single day of the week there can be no excuse for these omissions.

The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

(10) UK Car Park Management are not the lawful occupier of the land. The defendant has the reasonable belief that the claimant does not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
1. The claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
3. The claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third-party agent, the claimant may not pursue any charge.

(11)
1. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
2. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. The judges in the Beavis case stated that the charge could not be more than that of the original charge.

(12) The signage was inadequate to form a contract with the motorist.
1. The signage on this site was inadequate to form a contract. It was barely legible, making it
difficult to read.
2. The sign fails because it must state what the ANPR data will be used for. This is an ICO breach and contrary to the Code of Practice.
3. The sign cannot confer an obligation to only park in marked bays when there were no marked bays on the site, therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
4. In the absence of ‘adequate notice’ of the terms and the charge (which must be in
large prominent letters such as the brief, clear and multiple signs in the Beavis case)
this fails to meet the requirements of Schedule 4 of the POFA.

(13) The driver did not enter into any 'agreement on the charge', no consideration flowed
between the parties and no contract was established.
The defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

(14)
1. 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.
2. The defendant also disputes that the claimant has incurred £50 solicitor costs.
3. The defendant has the reasonable belief that the claimant has not incurred £50 costs to pursue an alleged £100 debt.
4. Notwithstanding the defendant's belief, the costs are in any case not recoverable.
5. The claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

The judges in the Beavis case stated that the charge could not be more than that of the original charge.
* Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

* That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

(15) The defendant would like to point out that the land subject of this claim can be fully distinguished from the details, facts and location as in the Beavis case. This site does not offer a free
parking licence, nor is there any comparable 'legitimate interest' nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015. Whilst the claimant withheld any photos of the signs on site, the defendant contends these are illegible with terms hidden in small print, unlike the 'clear and prominent' signs which created a contract Mr Beavis was 'bound to have seen'.

(16) The claimant used a Prohibitive Sign.
IN THE COUNTY COURT AT HIGH WYCOMBE - Thursday, 21st April 2016
DISTRICT JUDGE GLEN
Between:
PARKING CONTROL MANAGEMENT (UK)
Claimant
-v-
CHRISTOPHER BULL
In summing up HHJ GLEN stated: -
18. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.
19. I think Mr Samuels (for Claimant) recognised the difficulty of his conditional obligation argument, ie you must not park here but if you do then you have got to pay, and he urged upon me in the alternative that one had to look outside of just the roadways and look at the leases and the rights and obligations under the leases as a whole and to construct, as it were, a package of mutual obligations and benefits which gave rise to consideration for a contract whereafter a breach would result in a charge.
20. In my judgment the question of the ability to park on the roadways is a quite separate matter. On each occasion when the defendants parked on the roadway they trespassed against the interest of Thames Valley Housing Association Limited and Thames Valley Housing Association Limited would have been entitled to seek an injunction from doing it and would have been entitled to sue them for damages and those damages might have represented a reasonable charge for doing what they had done. However, in my judgment, there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what PCM were not giving to people who parked on the roadway.

The defendant’s submission is that this claim is so similar in terms of the use of a Prohibitive Sign, that only the owner of the land was entitled to sue for damages, not for breach of any contract, but for simple trespass. Similarly, ‘there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what the claimant was not giving to people who parked on the roadway.’

(17)

I believe the facts stated in this defence are true.


(Name) (Signature) (Date)

Le_Kirk

All paragraphs require a number - simple numbering is preferred.

Coupon-mad

Lots needs removing as it is padding and waffle (not a defence), and there are no facts about the car park and you need to add them:

SeaHaven wrote: »

DEFENCE

[STRIKE]Preliminary Matters.

(1). The claimant failed to include a copy of their written contract as per Practice Direction
16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the
Claimants contractual authority to operate there as required by the Claimants Trade
Association's Code of Practice B1.1 which says
1.1 If you operate parking management activities on land which is not owned by you, you
must supply us with written authority from the land owner sufficient to establish you
as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where
applicable) and in any event to establish you as a person who is able to recover
parking charges. There is no prescribed form for such agreement and it need not
necessarily be as part of a contract but it must include the express ability for an
operator to recover parking charges on the landowner’s behalf or provide sufficient
right to occupy the land in question so that charges can be recovered by the operator
directly. This applies whether or not you intend to use the keeper liability provisions.

(2). The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as
there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by Civil Procedure Rules (CPR) 16.4 1(a). 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). The Claimant has not complied with the pre-court protocol.

1. The Court is referred to Para 4 on non-compliance and sanction, and there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.[/STRIKE]



[STRIKE]I am XXXXX, defendant in this matter.[/STRIKE]

1. It is admitted that the defendant was the [STRIKE]authorised[/STRIKE] registered keeper of the vehicle in question at the time of the alleged incident. The defendant denies liability for the entirety of the claim for the following reasons: -

[STRIKE](5) (Subject to the Court’s indication that point (4) in Preliminary Matters above is agreed)[/STRIKE]
2. The identity of the driver of the vehicle on the date in question has not been ascertained.
[STRIKE]1.[/STRIKE] (a) The claimant did not identify the driver.
[STRIKE]2.[/STRIKE] (b) The defendant has no liability, as they are the Keeper of the vehicle and the claimant must rely upon the strict provisions of Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA') in order to hold the Defendant responsible for the driver’s alleged breach.

3. The Claimant failed to abide by the POFA, which clearly states at para 9(4): ''The notice must be given by - handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period. The 'relevant period' for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.''

4. Further, at para 9(6) of the POFA: ''A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.''

5. In this instance, whilst the date of issue of the Parking Charge Notice ('PCN') was XXXXXX, the PCN was in fact received by post on XXXXXX, some 23 days after the alleged date of parking. There was no reason for such a lengthy delay in the public postal system, and the defendant contests the validity of the Issued Date as published, as to date the claimant has presented no evidence of the actual date of postage of the PCN. Private parking firms have been shown for a number of years to falsify the purported 'Date of Issue' of PCNs to appear as if they have complied with the POFA, and this has been exposed by examples including PCNs 'dated' on Christmas Day and Easter Sunday. It is understood that this PCN was produced by means of a modern Electronic Document and Records Management system to ensure compliance with their Trade Body obligations and that the Claimant uses a third party printing/posting service. As such, a digital record of document issue metadata held by the Claimant should easily prove or disprove the date upon which the PCN was actually posted (not just 'produced'). The fact is, it arrived far too late for liability to pass to the registered keeper Defendant and the POFA provides for no lawful excuses for any delay in service.

6. On the basis of the above, the Defendant requests the court strike out the claim for want of a cause of action against a registered keeper.

[STRIKE](6) The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
1. The claimant has disclosed no cause of action to give rise to any debt.
2. The claimant has stated that a parking charge was incurred.
3. The claimant has given no indication of the nature of the alleged charge in the Particulars of Claim.
4. The Particulars of Claim contains no details and fails to establish a cause of action.
The claimant has therefore disclosed no cause of action which would enable the defendant to prepare a specific defence.
It just states “parked” 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.
5. On the 20th September 2016 another relevant poorly pleaded private parking charge claim by Gladstones was struck out by District Judge Cross of St Albans County Court without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR 16.4 and ‘providing no facts that could give rise to any apparent claim in law.’
6. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failing to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the claimant in that case to file new particulars which they failed to do and so the court confirmed that the claim be struck out.

(7) The claimant has not complied with the pre-court protocol.
1. I'd refer the court to Para 4 on non-compliance and sanction, and I'd also point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by their own Solicitors so they clearly had legal advice before issuing proceedings.

(8) The defendant wrote to the claimant on xxxxx asking for:
a) All data held about the defendant
b) All evidence the claimant intends to use against the defendant (to include a copy of the contract with the landowner under which the claimant asserts authority to bring a claim against the defendant; a copy of the alleged contract with the driver; a plan showing where any signs were displayed and details of the signs displayed).
c) All letters/emails sent and received (including the claimant’s correspondence with the DVLA to obtain the defendant’s personal details and any appeal correspondence).
d) A full copy of the parking charge notices
e) All photos taken
f) A list of all PCNs the claimant considers are outstanding against the defendant.
g) A close-up image of the signage at XXXXXXXXX.
h) Evidence the claimant has paid a debt collector.

The claimant failed to provide any of the information requested, and instead insisted that the defendant must complete a further form to enable the claimant to process the request. The claimant has therefore failed in its legal duty to fulfil a lawful Subject Access Request. [/STRIKE]

7. [STRIKE]After receipt of the County Court Claim Form, and in order to begin the process of defending this claim, the[/STRIKE] The Defendant has, during the pre-action and post-claim process, sent more than one [STRIKE]a further[/STRIKE] Subject Access Request to the Claimant [STRIKE]dated XXXXXX pointing out that by law they MUST provide the defendant with the data, and that the defendant WILL NOT complete an additional form which only serves to unnecessarily delay their response.[/STRIKE] To date a response has not been forthcoming, putting the Defendant at a distinct disadvantage and the Claimant remains in breach of the GDPR and has paid no regard to the 'overriding objective' of disclosing information pertinent to the case with a view to narrowing the issues in dispute. Withholding any relevant photos of the car, particularly the windscreen and dashboard, and the signage terms, despite being asked for by the Defendant at the outset, is against the pre-action protocol for debt claims, the IPC Code of Practice, the SRA code and the Consumer Rights Act 2015 regarding transparency, fair dealing and the doctrine of good faith. [STRIKE]as well as contrary to the ‘overriding objective’ in the pre action protocol.[/STRIKE]

8. Given the fact that Gladstones are a firm of solicitors whose Directors also ran the IPC Trade Body and deal with private parking issues every single day of the week, there can be no excuse for these omissions and disregard. The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.


9. Insofar as the Defendant understands the issue as registered keeper with limited local knowledge of the location, the facts are that {...WHAT?? Residential car park where the driver had authority to park? Roadway with scarce signage?}
YOU NEED FACTS HERE.


10. Whilst the Claimant has thus far, withheld any photos of the signs on site, the Defendant contends from images seen online of UKCPM signage, that these are likely to be illegible with terms hidden in small print, unlike the Beavis case 'clear and prominent' signs with the parking charge in the largest bold lettering, which created a contract that was 'bound to have seen'. In fact it is believed that even if there were signs near the car, this Claimant used a prohibitive sign with no parking offer or contract to be construed that would be capable of binding the driver to pay £100 or any sum at all.


[STRIKE]IN THE COUNTY COURT AT HIGH WYCOMBE - Thursday, 21st April 2016
DISTRICT JUDGE GLEN
Between:
PARKING CONTROL MANAGEMENT (UK)
Claimant
-v-
CHRISTOPHER BULL
In summing up HHJ GLEN stated: -
18. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.
19. I think Mr Samuels (for Claimant) recognised the difficulty of his conditional obligation argument, ie you must not park here but if you do then you have got to pay, and he urged upon me in the alternative that one had to look outside of just the roadways and look at the leases and the rights and obligations under the leases as a whole and to construct, as it were, a package of mutual obligations and benefits which gave rise to consideration for a contract whereafter a breach would result in a charge.
20. In my judgment the question of the ability to park on the roadways is a quite separate matter. On each occasion when the defendants parked on the roadway they trespassed against the interest of Thames Valley Housing Association Limited and Thames Valley Housing Association Limited would have been entitled to seek an injunction from doing it and would have been entitled to sue them for damages and those damages might have represented a reasonable charge for doing what they had done. However, in my judgment, there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what PCM were not giving to people who parked on the roadway.

The defendant’s submission is that this claim is so similar in terms of the use of a Prohibitive Sign, that only the owner of the land was entitled to sue for damages, not for breach of any contract, but for simple trespass. Similarly, ‘there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what the claimant was not giving to people who parked on the roadway.’[/STRIKE]


11. Further and in the alternative, UK Car Park Management are not the lawful occupier of the land. The defendant has the reasonable belief that the claimant does not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.
[STRIKE]1. The claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
3. The claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third-party agent, the claimant may not pursue any charge.[/STRIKE]

[STRIKE](11)
1. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
2. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. The judges in the Beavis case stated that the charge could not be more than that of the original charge.[/STRIKE]

[STRIKE](12) The signage was inadequate to form a contract with the motorist.
1. The signage on this site was inadequate to form a contract. It was barely legible, making it difficult to read.
2. The sign fails because it must state what the ANPR data will be used for. This is an ICO breach and contrary to the Code of Practice.
3. The sign cannot confer an obligation to only park in marked bays when there were no marked bays on the site, therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
4. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

(13) The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

(14)
1. 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.
2. The defendant also disputes that the claimant has incurred £50 solicitor costs.
3. The defendant has the reasonable belief that the claimant has not incurred £50 costs to pursue an alleged £100 debt.
4. Notwithstanding the defendant's belief, the costs are in any case not recoverable.
5. The claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

The judges in the Beavis case stated that the charge could not be more than that of the original charge.[/STRIKE]


12. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant [STRIKE](Britannia, using BW Legal's robo-claim model)[/STRIKE] and indeed this [STRIKE]an IPC member serial[/STRIKE] Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

13. UKCPM did not appeal that strike out. At hearings, their legal representatives routinely concede time and again that they are not entitled to recover the added 'damages' of some £60, when challenged by a Judge or Defendant.

14. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:
''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

15. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 to £160. This appears to be an added cost that is made up from thin air, with [STRIKE]apparently[/STRIKE] no qualification or reasonable justification. This is a clear and systematic attempt at double recovery, which the POFA specifically disallows at Para 4(5), which states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

16. The judges in the Beavis case [STRIKE][STRIKE]stated that the charge could not be more than that of the original charge.[/STRIKE][/STRIKE] held that the parking charge already more than comfortably covered the costs of a standard private parking charge business in terms of the system of template letters sent, and in fact provided for a substantial profit, not loss. The Claimant is attempting to recover the same business costs twice.

17. The Defendant would like to point out that the land subject of this claim can be fully distinguished from the details, facts and location as in the Beavis case. This site does not offer a free parking licence, nor is there any comparable 'legitimate interest' nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015.


Statement of truth:
I believe the facts stated in this defence are true.


(Name)

(Signature)

(Date)

SeaHaven

Many, many thanks Coupon-mad! I have made the changes indicated to our draft Defence.

9. Insofar as the Defendant understands the issue as registered keeper with limited local knowledge of the location, the facts are that {...WHAT?? Residential car park where the driver had authority to park? Roadway with scarce signage?}
YOU NEED FACTS HERE.

Is all or any of the following suitable to include with this point?: -

The Land is clearly accessible without trespass, 24 hours a day, 365 days of the year. Upon entrance to the land from xxxxxxx, the site is occupied by a xxxxxx xxxxxxx business to the left, and a xxxxxxx business operating on the right. The alternative entrance from xxxxxxx is only accessible by vehicles travelling from the direction of xxxxxxx towards xxxxxxx. A petrol filling station is accessed directly from the xxxxxx entrance, and its ancillary shop.
According to the Claimant’s own industry body, IPC’s governing document Part C Schedule 1 Signage states: - Entrance Signs should: a) Make it clear that the motorist is entering onto private land b) Refer the motorist to the signs within the car park which display the full terms and conditions. Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign. No signs exist or have existed since the date of issue of the PCN subject of this claim, at the two vehicular entrances to the site, that notify drivers that they are entering Private Land, nor that any regulations or restrictions apply to stopping or parking on the site. There is no direction to motorists referring them to signs within the land which display the full terms and conditions.
Within a few days of receipt of the PCN, the Defendant visited the site to inspect signage purportedly installed by or on behalf of the Claimant. Photographs were taken of signs labelled PARKING CONDITIONS at the top of the signs in bold font. Immediately beneath this in tiny font were the words Private Property / Terms & Conditions. At the bottom of each sign there was a square blue sign with a bold white P which one would conclude indicates parking. The remainder of the sign was found to be in much smaller font, and the Defendant contends too small a font, to enable a motorist entering the site to be able to read any terms and conditions advertised.
The first condition of parking stated NO PARKING OR STOPPING ON ROADWAYS AT ANYTIME. The next condition stated in smaller font YOU MUST PARK WHOLLY WITHIN A MARKED BAY. NO PARKING ON ROADWAYS/YELLOW LINES/PAVED/HATCHED OR LANDSCAPED AREAS. To the Defendant’s knowledge, and having thoroughly inspected the site on receipt of the PCN, there are no marked bays on the site in which to park wholly within.
The remainder of the sign was in such fine print/font that it would have been impossible to read from the driving seat of a typical saloon car. Allowing for the height at which signs were found at the site, none would have been visible from the driver position of a typical saloon car, as they were posted well above the height of a car roof. The Defendant’s car is not a convertible, and has a solid metal roof with no glass sunroof. Therefore, a driver at the time would have had no opportunity to examine and read the signage.
IPC’s governing document Part B states: - 15.1 Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site. The PCN issued by the Claimant gives a ‘committed time’ of xxxx hours. The two very poorly printed CCTV still images supplied in the PCN show the time as xxxxxx and in a squashed and compressed image below the time as xxxxxx. Therefore, the Claimant’s case concerns a matter of less than 2 minutes. This is insufficient time to inspect and read one of the Terms and Conditions signs, even if a driver’s attention had been drawn to the presence of such Ts&Cs upon entry as prescribed by the IPC. As the Ts&Cs state NO STOPPING OR PARKING ON THE ROADWAYS AT ANYTIME the Defendant contends that motorists entering the site are not supposed to read the Parking Conditions, and therefore there can be no ‘contract’.

Coupon-mad

I'd try this to add to #9:

9. Insofar as the Defendant understands the issue as registered keeper with limited local knowledge of the location, the facts are that this Land is clearly accessible without trespass, 24 hours a day, 365 days of the year. Upon entrance to the land from xxxxxxx, the site is occupied by a xxxxxx xxxxxxx business to the left, and a xxxxxxx business operating on the right. The alternative entrance from xxxxxxx is only accessible by vehicles travelling from the direction of xxxxxxx towards xxxxxxx. A petrol filling station is accessed directly from the xxxxxx entrance, and its ancillary shop.

9.1. The Claimant's two very poorly printed CCTV or ANPR images supplied in the PCN show the time as xxxxxx and in a squashed and compressed image below the time as xxxxxx. Therefore, the Claimant’s case concerns a matter of less than 2 minutes. This is insufficient time to inspect and read one of the Terms and Conditions signs, even if a driver's attention had been drawn to the presence of such Ts&Cs upon entry as prescribed by the IPC. As the Ts&Cs state NO STOPPING OR PARKING ON THE ROADWAYS AT ANYTIME the Defendant contends that motorists entering the site are not supposed to read any Parking Conditions, and there was no 'contract' on offer at all.