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PCN Court Defence Help
mfwx
Posts: 16 Forumite
Hi Guys, I am due to submit my defence over the next couple of days. I have found one on another thread and edited it. Any help is hugely appreciated.
A bit of background for the 'PCN' - The car park that I had parked in is on the side of a council car park, it is not clear that it has nothing to do with the council car park. There aren't any signs at the entrance, it's just a dropped kerb. On the wall there are 2 small signs stating 'Authorised vehicles only - A valid permit must be clearly displayed in windscreen at all times. No parking outside of designated parking area / parking bay. If unsure please seek advice from CPM or refrain from parking'
There aren't any clear parking bays and the evidence is two photos from the rear of the vehicle (Taken quite a distance away, you can't see the number plate at all, let alone the signs)
1. I am the Defendant, ???? , DOB xx/xx/xxxx, and reside at ?????? and it is admitted that I was the driver of the vehicle on the day of this event.
2. Save as specifically admitted in this defence the Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre-action correspondence.
Preliminary matters:
3. The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).!
4. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “Unauthorised Parking” which does not give any indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract', so I have had to cover all eventualities and this has denied me a fair chance to defend this in an informed way.
5. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, I request the court strike out the claim.!!
In further support of there being a want of cause of action:
6. The PCN was issued on a poorly signed private car park where I had pulled over, not parked. I was completely unaware that the site was 'private land' or being enforced by any restrictive terms, due to insufficient signage. I refer to the IPC Code of Practice (CoP) Part E, highlighting that adequate and clear entrance signs are required.
7. There were no entrance signs at all to show that drivers were entering an area of 'parking enforcement' or 'private land'. The road was not transparently signed as a permit-holders or 'managed' site, as their CoP requires.!!The signs visible in the photographic evidence are too high and the text too small for a driver to see whilst in the vehicle.
8. The only sign was attached to rear of a shop, where there were other equally unremarkable signs. There was nothing to suggest that one sign could relate to parking in the car park where there aren’t any clear parking bays. There was no nothing about permits or how to obtain one, or the charge itself.
9. The photographic evidence was taken by the claimant whilst hiding behind a vehicle at the rear of mine without any attempt to talk to me whilst I was sat in it to tell me I needed to move.
10. The Supreme Court Judges in the Beavis case held that a CoP is effectively 'regulation' for the private parking industry, full compliance with which is both expected and binding upon any parking operator.!!
11. No terms were seen because the car was photographed before I had even set foot out of the car. I was given no fair chance to read any terms at all, so the elements of a contract and agreement on any (unknown) charge are absent. Where terms on a parking sign are not seen/known, then there can be no contract. I rely upon the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000, a case won by the consumer on appeal where the Judges also found that clear entrance signs are expected.
12. Any ‘charge’ or terms on signage on the day was not seen but even if the court believes signs were displayed, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015.
13. The Claimant did not comply with the Part B, section 15 of the Code of Practice regarding grace periods: The photographic evidence submitted by UK Car Mark Management are date and time stamped.!It shows the vehicle at 12:12:08 from the rear. It then shows the vehicle, again from the rear at 12:13:22, just 14 seconds after the first photograph was taken. I refer to case!Vehicle Services Ltd vs Ibbotson (2012)!in which it is agreed that the claimant was responsible for mitigating the losses to the landowner. The parking operative had every opportunity to tell me in person that they needed to move the car, but failed to do so.
14. The Claimant may try to rely upon!ParkingEye Ltd v Beavis [2015] UKSC 67,!('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence. Further, there is no ‘legitimate interest’ served by immediate ticketing of a car on arrival, with no attempt to mitigate loss or draw terms to the attention of drivers, or allow any period of grace to obtain any permit or even read the signs.
15. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis case, the Claimant offered no licence to park if ‘unauthorised’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.
16. It is submitted that (apart from properly incurred court fees) any added solicitors fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.!
17. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.!
18. Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass.!
19. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).
20. I refer to case!Vehicle Services Ltd vs Ibbotson (2012)!in which it was agreed that a private parking firm was responsible for mitigating any loss. The parking operative had every opportunity to tell me in person to move on, but failed to do so.
21. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.!!
22. The court is invited to strike out the claim, due to no cause of action nor prospects of success.
23. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.
A bit of background for the 'PCN' - The car park that I had parked in is on the side of a council car park, it is not clear that it has nothing to do with the council car park. There aren't any signs at the entrance, it's just a dropped kerb. On the wall there are 2 small signs stating 'Authorised vehicles only - A valid permit must be clearly displayed in windscreen at all times. No parking outside of designated parking area / parking bay. If unsure please seek advice from CPM or refrain from parking'
There aren't any clear parking bays and the evidence is two photos from the rear of the vehicle (Taken quite a distance away, you can't see the number plate at all, let alone the signs)
1. I am the Defendant, ???? , DOB xx/xx/xxxx, and reside at ?????? and it is admitted that I was the driver of the vehicle on the day of this event.
2. Save as specifically admitted in this defence the Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre-action correspondence.
Preliminary matters:
3. The claimant failed to include a copy of their written contract nor any detail or reason for - nor clear particulars pertaining to - this claim (Practice Directions 16 7.3(1) and 7C 1.4(3A) refer).!
4. The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how any terms were breached. Indeed the PoC are not clear and concise as is required by CPR 16.4 1(a) and CPR 1.4. It just vaguely states “Unauthorised Parking” which does not give any indication of on what basis the claim is brought, for example whether this charge is founded upon an allegation of trespass or 'breach of contract', so I have had to cover all eventualities and this has denied me a fair chance to defend this in an informed way.
5. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, I request the court strike out the claim.!!
In further support of there being a want of cause of action:
6. The PCN was issued on a poorly signed private car park where I had pulled over, not parked. I was completely unaware that the site was 'private land' or being enforced by any restrictive terms, due to insufficient signage. I refer to the IPC Code of Practice (CoP) Part E, highlighting that adequate and clear entrance signs are required.
7. There were no entrance signs at all to show that drivers were entering an area of 'parking enforcement' or 'private land'. The road was not transparently signed as a permit-holders or 'managed' site, as their CoP requires.!!The signs visible in the photographic evidence are too high and the text too small for a driver to see whilst in the vehicle.
8. The only sign was attached to rear of a shop, where there were other equally unremarkable signs. There was nothing to suggest that one sign could relate to parking in the car park where there aren’t any clear parking bays. There was no nothing about permits or how to obtain one, or the charge itself.
9. The photographic evidence was taken by the claimant whilst hiding behind a vehicle at the rear of mine without any attempt to talk to me whilst I was sat in it to tell me I needed to move.
10. The Supreme Court Judges in the Beavis case held that a CoP is effectively 'regulation' for the private parking industry, full compliance with which is both expected and binding upon any parking operator.!!
11. No terms were seen because the car was photographed before I had even set foot out of the car. I was given no fair chance to read any terms at all, so the elements of a contract and agreement on any (unknown) charge are absent. Where terms on a parking sign are not seen/known, then there can be no contract. I rely upon the case of Vine v London Borough of Waltham Forest; CA 5 APR 2000, a case won by the consumer on appeal where the Judges also found that clear entrance signs are expected.
12. Any ‘charge’ or terms on signage on the day was not seen but even if the court believes signs were displayed, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015.
13. The Claimant did not comply with the Part B, section 15 of the Code of Practice regarding grace periods: The photographic evidence submitted by UK Car Mark Management are date and time stamped.!It shows the vehicle at 12:12:08 from the rear. It then shows the vehicle, again from the rear at 12:13:22, just 14 seconds after the first photograph was taken. I refer to case!Vehicle Services Ltd vs Ibbotson (2012)!in which it is agreed that the claimant was responsible for mitigating the losses to the landowner. The parking operative had every opportunity to tell me in person that they needed to move the car, but failed to do so.
14. The Claimant may try to rely upon!ParkingEye Ltd v Beavis [2015] UKSC 67,!('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances nor signage. Absent any offer or agreement on a charge, the Beavis case does not assist the claimant and in fact, supports this defence. Further, there is no ‘legitimate interest’ served by immediate ticketing of a car on arrival, with no attempt to mitigate loss or draw terms to the attention of drivers, or allow any period of grace to obtain any permit or even read the signs.
15. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis case, the Claimant offered no licence to park if ‘unauthorised’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.
16. It is submitted that (apart from properly incurred court fees) any added solicitors fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.!
17. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.!
18. Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass.!
19. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).
20. I refer to case!Vehicle Services Ltd vs Ibbotson (2012)!in which it was agreed that a private parking firm was responsible for mitigating any loss. The parking operative had every opportunity to tell me in person to move on, but failed to do so.
21. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.!!
22. The court is invited to strike out the claim, due to no cause of action nor prospects of success.
23. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.
0
Comments
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seems like an old one which is much too long and contains too much that is irrelevant or should be in the WS later down the line
try reading the recent BARGEPOLE honed ones and start with one of those like the concise one
also note his header and footer that define the start and finish too0 -
You seem to slip between Defence and Witness Statement (WS). The Defence should be written in the third person and, in a couple of places, you have said "I" do/did this, that or the other. This should be reserved for the WS.0
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seems like an old one which is much too long and contains too much that is irrelevant or should be in the WS later down the line
try reading the recent BARGEPOLE honed ones and start with one of those like the concise one
also note his header and footer that define the start and finish too
Would you mind pointing me to a more suitable defence? I'm lost as to what I'm looking for.
Thank you0 -
third thread down from the top
read post #2 and checkout those examples of defences, especially the BARGEPOLE concise one, then add any other legal arguments to it
a WS tells the story of what happened on the day, to elaborate on any legal defence points made
at this stage nobody is interested in the "story" which may contain the word "I"
its third party only as mentioned above, CLAIMANT and DEFENDANT , no "I"0 -
mfwx, why have you started a second thread about this issue?
On your other thread I wrote lots of useful stuff - at least I hope it was.
Amongst it was:you have until 4pm on Tuesday 11th December 2018 to file your Defence
At this moment in time the Claimant is free to seek a Default Judgment against you.
To avoid this, best you file your Defence as soon as possible.0 -
if this is your second thread as KeithP infers, then pm a board guide (crabman or soolin) and ask them to merge this thread into your other original thread0
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