Driver observed leaving site whilst vehicle remained parked on premises

Smaru

Thank you beamerguy;I have now reviewed the costs. and made changes to the defence.

Below is the edited Version1. . I have included the POC ,so that members do not have to browse through multiple posts. I look forward to further comments if any to make this stronger and more accurate.
Claimant:
Total Parking Solutions
Kettring
Address for sending documents and payments
BW Legal
Leeds

The Particulars of the Claim:
The Claimant's claim is for the sum of £ 203.28 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice for a parking contravention which occured on (date) in the car park at (location) in relation to a (details of make and registration vehicle) .The Defendant was allowed 28 dyas from the PCN issue Date to pay,but failed to do so.Despite demand having been made, the Defendant has failed to settle their outstanding liability,The Claim also includes Stautory Interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum ( a daily rate of 4.28 from date XXX to date XXX) being an amount of £ 4.28.The claimant also claims contractual costs as set out in the Terms and Conditions.
The claimant believes that the facts stated in this claim form are true and I am duly authorised by the claimant to sign this statement.

Signed (Name).................
(Clamimant's Legal representative


[FONT=&quot]IN THE COUNTY COURT

CLAIM No: xxxxxx

BETWEEN:

Total Parking Solutions (Claimant)

-and-

xxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. [/FONT][FONT=&quot]The facts are that the vehicle with registration ****** of which the Defendant was the Registered Keeper was [/FONT][FONT=&quot]parked at [location][/FONT]
[FONT=&quot]
3. The Particulars of Claim does not state that the Defendant was the registered keeper and/or the driver of the vehicle. Further, [/FONT][FONT=&quot]the particulars of claim are very vague and lack suitable information as to the grounds for the Claimant’s case. They fail to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Furthermore, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as nothing is mentioned which specifies how the parking terms were breached. These assumptions indicate that the Claimant has failed to identify a Cause of Action and therefore there is no liability towards the Defendant.[/FONT][FONT=&quot]

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.[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]5. The claimant’s Notice to Keeper indicates the Reason for Issue as ‘the driver was observed leaving the site whilst the vehicle remained parked on the premises’. [/FONT][FONT=&quot]No evidence has been provided to the defendant showing the claimant’s site boundary or the defendant actually leaving the site, despite the defendant requesting this at the Letter of Claim stage.[/FONT][FONT=&quot] The [/FONT][FONT=&quot]British Parking Association (BPA)[/FONT][FONT=&quot] code of Practice, of which the claimant is a member, states on this point:
[/FONT][FONT=&quot]20.5a. When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident, which you claim, was unauthorised. A date and time stamp should be included on the photograph.[/FONT][FONT=&quot] The claimant is put to strict proof to demonstrate with video or photographic evidence that the occupant(s) of the vehicle crossed a clearly defined boundary of the premises.[/FONT]
[FONT=&quot]
6. The signage does not demonstrate a map/boundary line or clear definition of the premises. The Parking bays spread over two levels with each storey accessible from two separate entrances . The entrance/exit to the lower level is from the south, whilst the entrance/exit to the upper level is from the north. The store itself is accessible from both storeys. The acess road to the car park on the top storey also has a long, sloping, winding pedestrian foot route that runs parallel it. This long foot route overlooks the garden centre of the store situated on the lower storey along its whole stretch. It is quite common for customers to use this foot route as a ‘viewing gallery ’to view large items stacked on high shelves that cannot be seen clearly from the garden centre at eye level . The signage in the car park does not clearly define the boundary of the premises.[/FONT]
[FONT=&quot]6a. The burden of proof shifts to Total Parking Solutions to prove otherwise, and to explain why their attendant watched a driver or occupant walk towards the edge of an undefined boundary and yet made no attempt to stop/warn the driver or even ascertain if a passenger had already been dropped at the door of the premises, or confirm if they had used other entrances to the site.
6b. The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.5.2012: District Judge McIlwaine stated 'you say he left the premises...where does the premises start and where does the premises finish?’ The Defendant contends that Total Parking Solutions have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.

[/FONT][FONT=&quot]7. The Defendant has the reasonable belief that the Claimant has artificially inflated the claim value by claiming to have paid vague costs (contractual costs) totaling £54.00 in addition to an alleged £70 debt. The claim further includes a sum of £50 described as “Legal Representatives Costs” which is an attempt by the Claimant at a double recovery, as there is no extra work involved or any other services used by them to justify this cost incurred. The Protection of Freedoms Act 2012 (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, which in this case is £70. It is apparent that apart from court fees incurred, any added legal fees/costs, are simply made up by the Claimant. The Claimant is put to strict proof, by showing time sheets or otherwise to justify these overstated costs.[/FONT]

[FONT=&quot]8.[/FONT] [FONT=&quot]The signage states that "Total Parking Solutions” manage and control this car park. Total Parking Solutions are therefore acting as an agent of the landowner. Neither the claim form, nor the signage state who the owner of the land is. [/FONT]
[FONT=&quot]8a. If a parking breach did occur as alleged by the Claimant then this would be a matter for the landowner to pursue for any damages resulting from the trespass. As an agent, the Claimant has no legal right to bring such a claim in their name. Any claim should be in the name of the landowner. The Claimant is put to strict proof that there is a chain of contracts leading from the landowner to Total Parking Solutions and that it has sufficient proprietary interest in the land and necessary authorisation from the landowner to issue pieces parking charge notices pursuing payment by means of litigation.[/FONT]
[FONT=&quot]8b. A Parking Charge cannot be disguised as a fee or a sum in damages owed to a firm which does not own the land but allows cars to trespass upon it. The decision of the supreme court in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass. [/FONT]


[FONT=&quot]9.[/FONT][FONT=&quot] It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the defendant is keeping a note of wasted time/costs in dealing with this matter.[/FONT]

[FONT=&quot]10. It is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Consequently, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.[/FONT]

[FONT=&quot]I believe the facts contained in this defence are true.[/FONT]




XXXX

XXX 2018

The_Deep

Leaving site has been mentioned recently in one of the debates about Sir Greg Knight's private members bill by an MP in the H of C as possibly a breach of one's human rights under the Human Rights Act. It would be interesting to see what a judge thinks about this.

In my opinion it is an unfasir term in a consumer contract. Picture this, you brand new £300 Monte Christo Panama is blown off site by the wind. Why should a scammer want £100 if you run after it?

Half_way

Picture this, you brand new £300 Monte Christo Panama is blown off site by the wind. Why should a scammer want £100 if you run after it?

If you can afford that much for a hat, and wear it on a windy day, then a scammer will see you a mile off.

Smaru

Dear forum members,
will be grateful for any feedback on my draft defence below



.. I have included the POC ,so that members do not have to browse through multiple posts. I look forward to further comments if any to make this stronger and more accurate.
Claimant:
Total Parking Solutions
Kettring
Address for sending documents and payments
BW Legal
Leeds

The Particulars of the Claim:
The Claimant's claim is for the sum of £ 203.28 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice for a parking contravention which occured on (date) in the car park at (location) in relation to a (details of make and registration vehicle) .The Defendant was allowed 28 dyas from the PCN issue Date to pay,but failed to do so.Despite demand having been made, the Defendant has failed to settle their outstanding liability,The Claim also includes Stautory Interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum ( a daily rate of 4.28 from date XXX to date XXX) being an amount of £ 4.28.The claimant also claims contractual costs as set out in the Terms and Conditions.
The claimant believes that the facts stated in this claim form are true and I am duly authorised by the claimant to sign this statement.

Signed (Name).................
(Clamimant's Legal representative


[FONT=&quot]IN THE COUNTY COURT

CLAIM No: xxxxxx

BETWEEN:

Total Parking Solutions (Claimant)

-and-

xxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. [/FONT][FONT=&quot]The facts are that the vehicle with registration ****** of which the Defendant was the Registered Keeper was [/FONT][FONT=&quot]parked at [location][/FONT]
[FONT=&quot]
3. The Particulars of Claim does not state that the Defendant was the registered keeper and/or the driver of the vehicle. Further, [/FONT][FONT=&quot]the particulars of claim are very vague and lack suitable information as to the grounds for the Claimant’s case. They fail to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Furthermore, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as nothing is mentioned which specifies how the parking terms were breached. These assumptions indicate that the Claimant has failed to identify a Cause of Action and therefore there is no liability towards the Defendant.[/FONT][FONT=&quot]

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.[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]5. The claimant’s Notice to Keeper indicates the Reason for Issue as ‘the driver was observed leaving the site whilst the vehicle remained parked on the premises’. [/FONT][FONT=&quot]No evidence has been provided to the defendant showing the claimant’s site boundary or the defendant actually leaving the site, despite the defendant requesting this at the Letter of Claim stage.[/FONT][FONT=&quot] The [/FONT][FONT=&quot]British Parking Association (BPA)[/FONT][FONT=&quot] code of Practice, of which the claimant is a member, states on this point:
[/FONT][FONT=&quot]20.5a. When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident, which you claim, was unauthorised. A date and time stamp should be included on the photograph.[/FONT][FONT=&quot] The claimant is put to strict proof to demonstrate with video or photographic evidence that the occupant(s) of the vehicle crossed a clearly defined boundary of the premises.[/FONT]
[FONT=&quot]
6. The signage does not demonstrate a map/boundary line or clear definition of the premises. The Parking bays spread over two levels with each storey accessible from two separate entrances . The entrance/exit to the lower level is from the south, whilst the entrance/exit to the upper level is from the north. The store itself is accessible from both storeys. The acess road to the car park on the top storey also has a long, sloping, winding pedestrian foot route that runs parallel it. This long foot route overlooks the garden centre of the store situated on the lower storey along its whole stretch. It is quite common for customers to use this foot route as a ‘viewing gallery ’to view large items stacked on high shelves that cannot be seen clearly from the garden centre at eye level . The signage in the car park does not clearly define the boundary of the premises.[/FONT]
[FONT=&quot]6a. The burden of proof shifts to Total Parking Solutions to prove otherwise, and to explain why their attendant watched a driver or occupant walk towards the edge of an undefined boundary and yet made no attempt to stop/warn the driver or even ascertain if a passenger had already been dropped at the door of the premises, or confirm if they had used other entrances to the site.
6b. The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.5.2012: District Judge McIlwaine stated 'you say he left the premises...where does the premises start and where does the premises finish?’ The Defendant contends that Total Parking Solutions have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.

[/FONT][FONT=&quot]7. The Defendant has the reasonable belief that the Claimant has artificially inflated the claim value by claiming to have paid vague costs (contractual costs) totaling £54.00 in addition to an alleged £70 debt. The claim further includes a sum of £50 described as “Legal Representatives Costs” which is an attempt by the Claimant at a double recovery, as there is no extra work involved or any other services used by them to justify this cost incurred. The Protection of Freedoms Act 2012 (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, which in this case is £70. It is apparent that apart from court fees incurred, any added legal fees/costs, are simply made up by the Claimant. The Claimant is put to strict proof, by showing time sheets or otherwise to justify these overstated costs.[/FONT]

[FONT=&quot]8.[/FONT] [FONT=&quot]The signage states that "Total Parking Solutions” manage and control this car park. Total Parking Solutions are therefore acting as an agent of the landowner. Neither the claim form, nor the signage state who the owner of the land is. [/FONT]
[FONT=&quot]8a. If a parking breach did occur as alleged by the Claimant then this would be a matter for the landowner to pursue for any damages resulting from the trespass. As an agent, the Claimant has no legal right to bring such a claim in their name. Any claim should be in the name of the landowner. The Claimant is put to strict proof that there is a chain of contracts leading from the landowner to Total Parking Solutions and that it has sufficient proprietary interest in the land and necessary authorisation from the landowner to issue pieces parking charge notices pursuing payment by means of litigation.[/FONT]
[FONT=&quot]8b. A Parking Charge cannot be disguised as a fee or a sum in damages owed to a firm which does not own the land but allows cars to trespass upon it. The decision of the supreme court in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass. [/FONT]


[FONT=&quot]9.[/FONT][FONT=&quot] It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the defendant is keeping a note of wasted time/costs in dealing with this matter.[/FONT]

[FONT=&quot]10. It is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Consequently, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.[/FONT]

[FONT=&quot]I believe the facts contained in this defence are true.[/FONT]




XXXX

XXX 2018

Smaru

Dear forum members,
Bumping this up again as tomorrow 31st is last date;will be grateful for any feedback on my draft defence below



.. I have included the POC ,so that members do not have to browse through multiple posts. I look forward to further comments if any to make this stronger and more accurate.
Claimant:
Total Parking Solutions
Kettring
Address for sending documents and payments
BW Legal
Leeds

The Particulars of the Claim:
The Claimant's claim is for the sum of £ 203.28 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice for a parking contravention which occured on (date) in the car park at (location) in relation to a (details of make and registration vehicle) .The Defendant was allowed 28 dyas from the PCN issue Date to pay,but failed to do so.Despite demand having been made, the Defendant has failed to settle their outstanding liability,The Claim also includes Stautory Interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum ( a daily rate of 4.28 from date XXX to date XXX) being an amount of £ 4.28.The claimant also claims contractual costs as set out in the Terms and Conditions.
The claimant believes that the facts stated in this claim form are true and I am duly authorised by the claimant to sign this statement.

Signed (Name).................
(Clamimant's Legal representative


[FONT=&quot]IN THE COUNTY COURT

CLAIM No: xxxxxx

BETWEEN:

Total Parking Solutions (Claimant)

-and-

xxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. [/FONT][FONT=&quot]The facts are that the vehicle with registration ****** of which the Defendant was the Registered Keeper was [/FONT][FONT=&quot]parked at [location][/FONT]
[FONT=&quot]
3. The Particulars of Claim does not state that the Defendant was the registered keeper and/or the driver of the vehicle. Further, [/FONT][FONT=&quot]the particulars of claim are very vague and lack suitable information as to the grounds for the Claimant’s case. They fail to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Furthermore, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as nothing is mentioned which specifies how the parking terms were breached. These assumptions indicate that the Claimant has failed to identify a Cause of Action and therefore there is no liability towards the Defendant.[/FONT][FONT=&quot]

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.[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]5. The claimant’s Notice to Keeper indicates the Reason for Issue as ‘the driver was observed leaving the site whilst the vehicle remained parked on the premises’. [/FONT][FONT=&quot]No evidence has been provided to the defendant showing the claimant’s site boundary or the defendant actually leaving the site, despite the defendant requesting this at the Letter of Claim stage.[/FONT][FONT=&quot] The [/FONT][FONT=&quot]British Parking Association (BPA)[/FONT][FONT=&quot] code of Practice, of which the claimant is a member, states on this point:
[/FONT][FONT=&quot]20.5a. When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident, which you claim, was unauthorised. A date and time stamp should be included on the photograph.[/FONT][FONT=&quot] The claimant is put to strict proof to demonstrate with video or photographic evidence that the occupant(s) of the vehicle crossed a clearly defined boundary of the premises.[/FONT]
[FONT=&quot]
6. The signage does not demonstrate a map/boundary line or clear definition of the premises. The Parking bays spread over two levels with each storey accessible from two separate entrances . The entrance/exit to the lower level is from the south, whilst the entrance/exit to the upper level is from the north. The store itself is accessible from both storeys. The acess road to the car park on the top storey also has a long, sloping, winding pedestrian foot route that runs parallel it. This long foot route overlooks the garden centre of the store situated on the lower storey along its whole stretch. It is quite common for customers to use this foot route as a ‘viewing gallery ’to view large items stacked on high shelves that cannot be seen clearly from the garden centre at eye level . The signage in the car park does not clearly define the boundary of the premises.[/FONT]
[FONT=&quot]6a. The burden of proof shifts to Total Parking Solutions to prove otherwise, and to explain why their attendant watched a driver or occupant walk towards the edge of an undefined boundary and yet made no attempt to stop/warn the driver or even ascertain if a passenger had already been dropped at the door of the premises, or confirm if they had used other entrances to the site.
6b. The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.5.2012: District Judge McIlwaine stated 'you say he left the premises...where does the premises start and where does the premises finish?’ The Defendant contends that Total Parking Solutions have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.

[/FONT][FONT=&quot]7. The Defendant has the reasonable belief that the Claimant has artificially inflated the claim value by claiming to have paid vague costs (contractual costs) totaling £54.00 in addition to an alleged £70 debt. The claim further includes a sum of £50 described as “Legal Representatives Costs” which is an attempt by the Claimant at a double recovery, as there is no extra work involved or any other services used by them to justify this cost incurred. The Protection of Freedoms Act 2012 (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, which in this case is £70. It is apparent that apart from court fees incurred, any added legal fees/costs, are simply made up by the Claimant. The Claimant is put to strict proof, by showing time sheets or otherwise to justify these overstated costs.[/FONT]

[FONT=&quot]8.[/FONT] [FONT=&quot]The signage states that "Total Parking Solutions” manage and control this car park. Total Parking Solutions are therefore acting as an agent of the landowner. Neither the claim form, nor the signage state who the owner of the land is. [/FONT]
[FONT=&quot]8a. If a parking breach did occur as alleged by the Claimant then this would be a matter for the landowner to pursue for any damages resulting from the trespass. As an agent, the Claimant has no legal right to bring such a claim in their name. Any claim should be in the name of the landowner. The Claimant is put to strict proof that there is a chain of contracts leading from the landowner to Total Parking Solutions and that it has sufficient proprietary interest in the land and necessary authorisation from the landowner to issue pieces parking charge notices pursuing payment by means of litigation.[/FONT]
[FONT=&quot]8b. A Parking Charge cannot be disguised as a fee or a sum in damages owed to a firm which does not own the land but allows cars to trespass upon it. The decision of the supreme court in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass. [/FONT]


[FONT=&quot]9.[/FONT][FONT=&quot] It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the defendant is keeping a note of wasted time/costs in dealing with this matter.[/FONT]

[FONT=&quot]10. It is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Consequently, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.[/FONT]

[FONT=&quot]I believe the facts contained in this defence are true.[/FONT]




XXXX

XXX 2018

Umkomaas

For want of anyone commenting - if you hadn't noticed, there is no one now critiquing court defences, it was never what the forum was intended for, and the number thrown at us has become overwhelming - but to my untrained eye it looks ok.

There are some paragraphs that seem to be drifting into evidence which should really come later at WS stage. Be careful with the Ibbotson case in the context of 'mitigation of loss', as that element was dispatched to the long grass by The Supreme Court in Beavis - but there's other good stuff in the case beyond that.

I can only now recommend you have a final look at the Bargepole advice in the NEWBIES FAQ sticky, post #2 to check your defence against and if you're then happy, get it away.

Smaru

Thanks so much!Yes, the numbers of new cases does seem quite overwhelming. I will have a final look ,prune away what I feel is evidence rather thn defence statement and then email it .
Thanks again ,Umkomaas.Appreciate the time taken.

Smaru

Dear forum members, we have submiited our defence.Thank you for your help.Much appreciated The issue date was 29th Nov 2018, and I had emailed the defence on 31st December. This was within the time (as KeithP suggested, and mentioned elsewhere in the Newbies thread).I received an automated email acknowledgement that email was receivd on the 31st. However, I have just checked on MCOL, and it says defence receieved on 2nd Jan..do I need to get this corrected ?

Many thansk in advance for your help.

Redx

I do not believe you do, no , they were probably closed over xmas and new year

if they have changed the status to defended or whatever it says, that is good enough for me

Smaru

Thank you for quick response,RedX,
Wish you a Happy New Year