DRAFT DEFENCE against Private Parking Solutions (I have read Newbies thread)

crystalchampagne

Hi there, this is my first post on the MSE Forums. Thank you to all of you who have provided amazing advice on other cases so far, including the authors on the Newbies thread. You’ve given me hope.

SUMMARY
I have filed my acknowledgement of service, and am now working on the defence. In the meantime, I am starting a new thread to get the ball rolling, as per the instructions on the Newbies thread. I shall reply here once the defence has been drafted.

Please let me know if I have posted this in the wrong place and where to go if so.

Also, if it’s helpful for you to see any of the evidence mentioned below, let me know and I will upload redacted pictures/docs etc to this thread.

Thank you!

KEY FACTS
21 points, chronologically:

1 - I was offered an internship at a radio station, with studios at a commercial ‘business park’, located in a rural area, between 27th and 30th of March 2017.
2 - The internship was a trial which would then lead to my first ‘proper job’. it was my first time using my car to ‘get to work’, and my first time parking in a business park.
3 - Before arrival, i asked the employer about parking. They said ‘yes of course we can arrange parking for you’, asked me for my car details and then said ‘I will inform reception’. (email evidence available)
4 - On arrival on 27th March 2017, I approached a gated area, which required me to ring a buzzer and communicate my identity, in order to gain access. I asked where to park, they gave me direction, no mention of the need for a permit.

The next part of the story may be unhelpful:

5 - At reception, I asked about parking, they said ’you need to get a permit from your manager’.
6 - Once I met my manager, I requested a permit, which I received later in the week.
7 - During the week of my internship, I parked in this way (without a permit in my windscreen) every day, waiting to receive a “permit”, which, by this time, I assumed was just a frivolous formality.
8 - I finally received the permit on 30th March 2017, I still have it now. The start and expiry date on the permit were left blank for me to fill out by hand. I still have it and it is still blank on the dates.

Moving on:

8 - At the end of the day on 30th March 2017 (last day of my internship) I found a parcel that looked like a PCN from Private Parking Solutions (PPS) with a fine for I believe £60 or £100 (apologies, I do not have this evidence anymore, I think I threw it away in fury.)
9 - Given the precarious position I was in with my employer (they were just about to decide whether to hire me full-time for my first ever long term career job) I did not tell them about the parking ticket, I didn’t want them to think I was a trouble-maker in my first week. Note also that I didn’t get formally hired until two months later, in April 2017.
10 - PPS sent me some letters, and after a while, I started receiving letters from Zenith debt collectors on a very regular basis (I didn’t keep any of the letters and I ignored everything).

Another potentially unhelpful bit:

11 - In September 2017, I decided to face the situation. I explained the situation to PPS in an email, asking to settle the fine at a reduced rate of £60, and I also begged them to remove me from Zenith’s hit list.
12- I went back and forth with them a good few times over email but they didn’t budge at all, making reference to some phantom T&Cs (I have this entire email thread, apologies I did not make the offer without prejudice).

Anyway:

13 - After a while the letters became less frequent.
14 - Eventually I started receiving letters from Gladsone’s Solicitors, although by this time, I had moved house, and they were sending my letters to the old (wrong) address. (Note: I was receiving the letters though, as it’s my family home. I continued to ignore the letters anyway.)
15 - Finally, I received a Letter Before Claim to my new, correct address, on 22nd November 2018. In this letter, Gladstone’s wrote ‘We carried out a Trace that produced a new address and as such we are now allowing you additional time to respond to our original letter.’
16 - The new date by which I had to reply was 6th December 2018.
17 - There was no email address provided, and it was suggested in the letter that I respond via the ‘Reply Form’, by creating an account with my personal details on their website (NO THANKS!).
18 - I wrote them a letter by hand, asking for evidence of the alleged debt, dated 5th December 2018, sent by first class post (sadly I have no evidence of this except a photo on my phone of the letter and the (stamped/addressed) envelope).
19 - I received a Claim Form with Issue Date 10th December 2018 through the post, claiming $180.48 plus court fees and legal costs, amounting to £255.79.
20 - I sent a completed copy of the paper Acknowledgement of Service form to ccbcaq@justice.gov.uk on Tuesday 18th December (yesterday) and am emailing every day to check that it’s been received and that the required procedural steps have been taken, no response yet. (I am quite worried because I am not sure that I filled the form out correctly.)
21 - Now I am working on drafting a defence.

KeithP

I can see that you have already emailed an Acknowledgement of Service, but you might consider filing an AoS via MCOL as described here as well.

With a Claim Issue Date of 10th December, you have until Monday 31st December to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread.

Having done the AoS, you then have until 4pm on Monday 14th January 2019 to file your Defence.

That's nearly four weeks away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

crystalchampagne

IN THE COUNTY COURT

CLAIM NO: XXXXXXX

BETWEEN:

PRIVATE PARKING SOLUTIONS LONDON LIMITED (Claimant)

-and-

XXXXXXXXXXXXXXXXX (Defendant)

DEFENCE

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

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in parking site allocated to Company XXXX at XXXX Business Park, and had a valid permit to be parked in that parking zone.

3. The Particulars of Claim state that ‘[t]he Defendant was driving the Vehicle and/or is the Keeper of the Vehicle.’ These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.!

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.

5. It is admitted that the Defendant is the registered keeper of the vehicle in question.

6. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

6(i) The driver has not been evidenced on any occasion.

6(ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

7. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. If the terms were clear and prominent as adequate notice of the charge, which is denied, the signage displayed!only makes an 'offer of parking' to permit holders, and therefore only permit holders can be!potentially!bound by the contractual terms conveyed. The only clear large lettering was ‘[TBD]’ and it is submitted that the presence of the vehicle was not 'unauthorised'.![more details to follow - pending a trip to the site].

9. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. [more details to follow - pending a trip to the site].

10. The car park has a security gate which can be opened only by authorised people. In this case,!it is my belief as registered keeper that!the car was parked inside the premise with permission from the security & reception staff at!the!time of the!alleged!incidents.

11. The reason for this parking company's presence on this gated site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the leaseholder businesses. Instead, contrary to various consumer laws, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.

12. The driver was allowed the right to park by the leasehold business, relying on an express verbal agreement with the on duty reception staff.!

13. This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.

14. The Claimant is put to strict proof that it has sufficient prorpietary interest in the land to unilaterally remove or interfere with the overriding rights enjoyed by the lessee company and extended to permitted drivers who were expressly allowed on site, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

15. Even if there were a contract, the Claimant is trying to recover additional charges such as legal costs £50.00 and court fees £25.00. The Protection!of!Freedoms Act (POFA) 2012 does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has reasonable belief that the Claimant has not incurred the stated additional costs and is put to strict proof they actually have occurred. As a small Claim, the legal costs cannot be recovered and be struck out.

16.!Further and alternatively, the provision requiring payment of!£255.64!is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.!

17. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

18. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.

19. On the one hand the security/reception staff verbally allowed access and opened the gate, to enable loading/unloading on more than one occasion (the vehicle could not have entered without such express permission and this is proved by the very fact that the gate was opened to allow the entry of the vehicle). Landholders cannot allow or promise this on the one hand, then on the other hand, take away this permission or promise, in allowing a third party to disallow and/or seek to charge for the permitted action by a driver.

20. In!'Saeed v Plustrade Limited [2001] EWCA Civ 2011'!a tenant was granted a right in common with others to park on such part of the forecourt as might from time to time be specified by the landholder, who later proposed to reduce the availability of parking and to charge for it. On appeal it was held that the landholder was only entitled to change the location of spaces, not to reduce their number, nor to unreasonably restrict parking previously offered, nor to charge for it. Such restrictions would interfere with easements enjoyed under the lease.

21. In summary, it is the Defendant's position that the Claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the Claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Statement of Truth:

I confirm that the contents of this statement are true to the best of my knowledge and belief.

Name
Signature
Date

crystalchampagne

Thanks for replying!

KeithP wrote: »

I can see that you have already emailed an Acknowledgement of Service, but you might consider filing an AoS via MCOL as described here as well.

I already tried to do so, but every time I tried to log in using my Government Gateway ID (which I have because of paying student loan, and filing taxes), I got an error message saying 'You need to reset your password with MOJ'. So then I contacted the County Court about it both by email and by phone, their answers were short and unhelpful. I was told to file the paper version instead, but they offered no guidance on how to fill it out.

crystalchampagne

DEAR LAWYERS, I don't have much time left to file this. Please could you provide some advice. Here is an updated draft based on feedback I read on other people's posts.

THANK YOU

---

IN THE COUNTY COURT

CLAIM NO: XXXXXXX

BETWEEN:

PRIVATE PARKING SOLUTIONS LONDON LIMITED (Claimant)

-and-

XXXXXXXXXXXXXXXXX (Defendant)

DEFENCE

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

2. The facts are that the vehicle, registration XXXXXX, of which the Defendant is the registered keeper, was parked on the material date in parking site allocated to Company XXXXXX by Building Management Company XXXXXXXX at XXXXXXX business park, and had a valid permit to be parked in that parking zone.

3. Due to the sparseness of the particulars, it is unclear as to what legal basis the Claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

4. The Particulars of Claim state that ‘[t]he Defendant was driving the Vehicle and/or is the Keeper of the Vehicle.’ These assertions indicate that the Claimant has failed to identify a Cause of Action, and is rather offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the Claim do not meet the requirements of Practice Direction 16 para 7.5 as there is nothing which specifies how the terms were breached.!

5. It is admitted that the Defendant is the registered keeper of the vehicle in question.

6. The Defendant has no liability as they are the keeper of the vehicle, and Private Parking Solutions has failed to comply with the strict provisions of POFA 2012 to hold anyone other than the driver liable for the charges.

6(i) The driver has not been evidenced on any occasion.

6(ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

7. The Claimant’s signs on the site are small and sparsely distributed. The words on the signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

9. The car park has a security gate which can be opened only by authorised people. In this case,!it is my belief as registered keeper that!the car was parked inside the premise with permission from the security and reception staff at!the!time of the!alleged!incidents.

10. The driver was allowed the right to park by the leasehold business, relying on an express verbal agreement with the on duty reception staff.! This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.

11. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

12. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.

13. The Claimant is put to strict proof that it has sufficient proprietary interest in the land to unilaterally remove or interfere with the overriding rights enjoyed by the lessee company and extended to permitted drivers who were expressly allowed on site, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

14. The Claimant is trying to recover additional charges such as legal costs £50.00 and court fees £25.00. The Protection!of!Freedoms Act (POFA) 2012 does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has reasonable belief that the Claimant has not incurred the stated additional costs and is put to strict proof they actually have occurred. As a small Claim, the legal costs cannot be recovered and be struck out.

15.!Further and alternatively, the provision requiring payment of!£255.64!is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.!

16. In summary, it is the Defendant's position that the Claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the Claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Statement of Truth:

I confirm that the contents of this statement are true to the best of my knowledge and belief.

Name
Signature
Date

Le_Kirk

IANAL however, from reading other posts and threads, you seem to have covered a "standard" defence. The test is if you have refuted (with points of law) all the claimant's claims in the POC.

In your para 9. you have slipped into the first person so it should be rewritten in the third person, i.e. it is the defendant's belief .........

The_Deep

£256 is far more than the Law allows for this sort of claim. The down market solicitors whom the PPCs engage know this, but, because they are solicitors, know that a lot of people will pay up.

It is in fact double charging and non claimable debt collectors' add ons. Imo, this is fraud, or, at the very least, improper conduct.

Were this to get to court and they won, the judge would be unlikely to award the claimant more than £175 - £200.

I urge you to report this grubby law firm to their regulatory body, the SRA.

https://www.sra.org.uk/solicitors/handbook/code/content.page

and complain to your MP

It is the will of Parliament that these scammers be put out of business. Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers. Read this one which I wrote earlier

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

as I am sure they do not condone this conduct.

Le_Kirk

You have still not changed your para 9. Do not start new threads, keep all info to the same thread as this means posters do not have to keep dodging about between threads. Ask a board guide by sending a PM to either Savvy, Soolin or Crabman, to merge your threads.

As I said, it looks like a good standard defence. Does it answer all the points raised by the claimant in the POC? Is there anything else you want to add bearing in mind that you cannot modify a defence once submitted?

You seem to have some spare exclamation marks scattered throughout the defence, these should be removed before submission.

crystalchampagne

Thanks for your help @Le_Kirk, I have edited para 9 in the original draft, and I have also tried to delete the other thread i started a couple of weeks ago but not sure how to do it/can't find the delete function. The exclamation marks are a formatting bug that happens when I paste the defence into this forum, they don't exist in the original draft.

I think if there are no lawyers around to review the defence I will just go ahead and send it, because my time is quickly running out.

KeithP

crystalchampagne wrote: »

I think if there are no lawyers around to review the defence I will just go ahead and send it, because my time is quickly running out.

But you still have two weeks.

Surely you understand that there will be fewer people aroud over a holiday period?

Redx

crystalchampagne wrote: »

I have also tried to delete the other thread i started a couple of weeks ago but not sure how to do it/can't find the delete function.

thats because its not possible for you to do this, which is why you dont have that function as a standard member and not a member of the admin staff

you were told to pm crabman or soolin (board guides) to merge your threads into one, plus they can delete anything that isnt required, because they DO have that function, as board guides

the fact that you ignored those instructions is your fault for not reading the forum help pages and not following what Le_Kirk said earlier

attention to detail is critical in these matters

you will find few if any "lawyers" on here, its a consumer help forum, not a legal forum

we can advise you as intelligent lay people, nothing more unless a "lawyer" were to reply, and we have seen little of that happening in the last few weeks , so either follow your instincts or read my signature and follow that advice

good luck


ps:- do NOT rush this, there is no reason to submit anything until a few days before the deadline KeithP mentioned, you only get ONE CHANCE at this