Incorrect info on ticket

Umkomaas

See bargepole's advice in the NEWBIES FAQ sticky, post #2 about sequential paragraph numbering as in 1,2,3 as opposed to your sub para numbering as in 1, 1.1, 1.2.

As you've written the Defence, I presume you can talk to it authoritatively, but I must admit, having (unusually) tried to read it in detail, I couldn't really understand much of it. It looks a good bit longer than the length suggested by bargepole.

Perhaps that's why I've elected not to give detailed critique of court defences! :cool:

SergeiK

Its far too long, no judge is likely to want to read it all

Although much of it seems relevant I'm not experienced in this. I'm going to try and trim it down and change the numbering as you point out.

The last section is the 'abuse of process' part which I've read should be added. I've added bits in like the fact the are claiming £54 instead of the pursued £60 'contractual costs' but correct me if that's not relevant

Coupon-mad

You have repetition of things like ''In summary...''.

You have two paras called #2.

I say remove all of 3, which is ancient.

I've added bits in like the fact the are claiming £54 instead of the pursued £60 'contractual costs' but correct me if that's not relevant

You are right to change the words to suit your case.

You do need to object as well to the fact they called it a:

Fixed Charge Notice

...which impersonates authority they do not have. A 'fixed charge' impersonates the Police term 'fixed penalty' and breaches the IPC CoP on misrepresentation of authority.

I would start with a much more concise defence draft and bin that old one.

SergeiK

Once again appreciate your help

I feel happier with this version

Claim No: XXXXXXX

IN THE COUNTY COURT

BETWEEN

NAPIER PARKING LIMITED (CLAIMANT)

AND

HOMER SIMPSON (DEFENDANT)


DEFENCE
1. The Particulars of Claim are denied.

2. The vehicle with registration mark XXXXXX, of which the Defendant is the driver and registered keeper, was parked on the material day correctly within a designated bay and a ‘virtual permit’ was purchased via the RingGo mobile app. Proof of payment in the form of a screenshot of the transaction was supplied to the Claimant at their internal appeal stage. The permit was valid in as much as the correct tariff was paid,
3. The particulars of claim state that the vehicle XXXXXX incurred the charge for breaching the terms of parking on the land at XXXXXXX and a ‘Fixed Charge Notice (FCN) was issued. The ‘FCN’ stated the contravention as 'Failure to clearly display a valid ticket/permit’ and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it is already common ground that the correct parking charge (tariff) had already been paid but also due to an error in the cashless pay by phone app not caused by the consumer, further more the cashless system provides no physical ticket or permit to display so the defendant was unable to comply with the alleged breach.
4. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel. Paying by phone for parking is indisputably a 'distance contract' - a remote telephone transaction involving the exchange of more than one message/text - and under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, such a contract requires certain information to be supplied in advance. The app used by the Claimant failed to comply with the statute and this directly led to the system failure regarding the VRN data.
5. The app used by the Claimant had carried forward stored data without the Defendant's consent, and the app wrongly used the VRN relating to a completely different parking session. Without having to physically key it in. Taking into account the average two car household the claimant must be aware of the potential hidden pitfall of the system. To quote from the decision in Beavis:
Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might omperate disadvantageously to the customer.''

6. The Claimant uses the term ‘Fixed charge notice’ this term breaches the IPC code of practice on misrepresentation of authority this impersonates the police term ‘fixed penalty’ implying that they have authority that they do not

7. Further and in the alternative, it is denied that the Claimant’s signage sets out the terms and conditions in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The important requirement of entering a correct or indeed any VRN for a valid ‘virtual permit’ should be made clear to patrons in prominent lettering and that failure to do so would incur a parking charge of £90.

8. The important and mandatory information regarding the fact that ANPR or MNPR is used for enforcement purposes in the terms and conditions are in such a small font at the very bottom on a separate smaller sign as to make it unreadable. Also it does not state specifically that the ANPR/MNPR images will be compared to data from the mobile app for the purpose of issuing a £90 penalty. There is also poor signage at one of the car park entrances that does not make it obvious you are entering private land. It is therefore denied that the Claimant’s signage is capable of creating a legally binding contract.

9. 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 parking charge notices, and to pursue payment by means of litigation.

10. According to the Consumer Rights Act 2015, any goods purchased must be ‘fit for purpose’. The parking session paid for was not ‘fit for purpose’. The Claimant took the Defendant’s money to issue an invalid ‘virtual permit’ and now wants to charge the defendant a penalty for having an invalid permit.
11. Costs on the claim are disproportionate and disingenuous CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

12. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.

13. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

14. Any purported 'legal costs' are also made up out of thin air, this appears more so that the fact the Claimant cannot not even agree how much these costs are, as in previous correspondence including letter of claim Claimant was seeking £60 but is now seeking £54. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

15. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

16. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

17. 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 an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:

The Judge stated:-
''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...''

18. The Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

19. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

20. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.


21. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

22. 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 the case management powers pursuant to CPR 3.4

Dated
STATEMENT OF TRUTH
The Defendant believes that the facts stated in this Defence are true.
SIGNED

SergeiK

Bump. If anyone has any input - I know you guys are busy

SergeiK

Bump........

SergeiK

Anyone...?

Le_Kirk

Sometimes if you don't get any negative feedback, that means posters are tacitly agreeing it is OK. You have explained the POC, refuted them and included signage, landowner authority and abuse of process. Some of your defence would possibly be better in the Witness Statement (WS) when the narrative and evidence are submitted and you may want to revisit it to shorten it depending upon if you have time before submission. I note you didn't make anything of Coupon-mad's comments about the difference between a FCN and PCN. Maybe this can also go in the WS.

SergeiK

Thanks, point 6 mentions about the 'FCN' I've started to read the odd WS trying to get a grip of what's included and what isn't

SergeiK

I'll do a bit of fine tuning, but otherwise I'm quite happy with it

Another thing I'm not sure if worth mentioning, the sign at the bottom states 'manual cameras and ANPR in operation' there's no sign of any ANPR systems in place but seems like my car was captured by a warden with a manual entry system no mentioned on the Signage