Countrywide Parking Management ltd Appeal Denied

soolin

I have re opened the old thread and merged the new thread with it, sorry for any resulting confusion.

KeithP

baart77 said:

The issue date is 29th Nov 2021. 

With a Claim Issue Date of 29th November, you have until Monday 20th December to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS in a timely manner, you have until 4pm on Tuesday 4th January 2022 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

baart77

AoS filed, will try to post the defence draft here this week. 

Jenni_D

Remember that we only need your version of points 2 and 3 (expanded to as many paragraphs as you feel you need). We don't need the rest of @Coupon-mad's template as it's not her homework we need to check. 😉

baart77

First atempt

I was not the driver at the time of the alleged offence and no responsibility can be assumed. 

 
Firstly:

1. The driver displayed the permit correctly. The photos of the car were taken at night with a very limited amount of light available and are not a sufficient proof of there not being a permit or that the photos of the car were taken in the location stated in the Notice to Keeper. Some of them can not even be assumed to be photos of my car as the registration plate is either not visible or is impossible to read. There is no proof either that the parking charge was attached to the windscreen or elsewhere on the day of the alleged breach. 

 2. If it is claimed that the driver failed to display the permit then I challenge the claimant to prove that sufficient grace period has been applied as per IPC Code of Conduct which Countrywide Parking Management is a member of. The Notice to Keeper does not show the time of entry or exit or the length of time the car was parked there allegedly without the permit displayed. In the further communication recived after the alleged incident it was claimed that the car was observed at 22.43.  It can not be therefore claimed that the driver had been  "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."

 Furthermore:

 3. The driver was allowed the right to park by the current occupier and leaseholder, whose tenancy agreement forms primacy of contract.

            a. Tenancy agreement says nothing about requirement to display a permit.

            b. The operator’s signs cannot override the existing rights enjoyed by residents and their visitors, as was found in the Appeal case decided by His Honour  Judge Harris QC at Oxford County Court, in case number B9GF0A9E:‘JOPSON v HOME GUARD SERVICES’

.                        i. In the Jopson appeal it was also held that signs added later by a third-party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new ‘parking contract’.

                        ii. In the Jopson appeal it was held that ‘PARKINGEYE LTD v  BEAVIS’ (2015) UKSC 67 had no application to a situation involving drivers with a right and expectation to be entitled to park under the grants flowing from a  lease.

            c. ‘SAEED v PLUSTRADE LIMITED’ (2001) EWCA Civ 2011: On appeal it  was held that easements enjoyed under the lease could not be restricted  retroactively.

            d. Pace Recovery and Storage v Mr N. (2016): it was found that the parking  company could not override the tenant’s right to park by requiring a permit to do so.

                         i. District Judge Coonan concluded that Mr N.’s tenancy agreement granted the right to park without the requirement to display a permit.

                         ii. Mr N. also won a previous case, wherein the Judge ruled that his tenancy agreement gave him an unfettered right to use parking space  and that the terms could not be varied by PPC signage.

            e. Link Parking v Ms P. (2016): it was found that the PPC could not override the tenant’s right to park by imposing the requirement to display a permit.
           

                        i. As land occupier, Ms P. was granted the power to manage the space, which does not include the need to display a permit.

            f. The claimant is not a party to the tenant’s lease and cannot arbitrarily vary it.

4. If primacy of contract is disputed, then the signage on site needs to be plentiful and easily visible, or no contract can be entered into knowingly by the driver. It clearly is not the case in this situation. There has only ever been one sign, difficult to notice during the day and impossible at night. There is no signage at the entrance to this day. 
           

            a. In Link Parking v MR L (2016) it was found that the lack of entrance  signage at a residential site and poor visibility of other signs was cause for  dismissal.
           

            b. The signage on the site in question was demonstrably unfit for purpose at  the time in question in the formation of a contract with a motorist.

            i. At the time of the alleged infraction signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation.

            ii. They do not comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme, an organisation to which the claimant’s client was a signatory at the time of the purported infraction.

            c. Such is the complexity and density of the text on the claimant’s signs that the most onerous term – the £100 parking charge notice – is buried amongst a mass of small print and does not even begin to comply with Denning MR’s “Red Hand Rule”.

Please comment, and in a meantime I will work on the bit about £60 

Jenni_D

Read the template defence ... you will note that everything is in the 3rd person. So the Defendant did this, the Claimant claims that, the Defendant avers .... etc.  

baart77

Ok, will change it all to 3rd person. Is the content sufficient?

Le_Kirk

Content could be improved by following the format of the template defence and keeping just short, punchy legal/technical arguments and leave the narrative and evidence for the witness statement later in the process.

Coupon-mad

You only need to add a paragraph or two to the template defence.  That's far, far too long for your facts and probably duplicates what's already in the template, that you must read first.

Also read maybe ten other Claim threads to see what people usually put.  That will help!

baart77

Hi, 

have gone through what others have prepared and it feels the defence presented in this thread - https://forums.moneysavingexpert.com/discussion/5559809/uk-cpm-pcn-received/p3 is strong, concise and applicable to my situation. I have added two paragraphs (in bold) regarding grace periods and lack of evidence that the photos were actually taken were they claim they were (not sure if necessary). Also don't know whether to admit the car was park there or not in the light of insufficient evidence? Please advise. 

The amount of legal terms in all the threads is quite overwhelming so please excuse if I missed something.

so 2nd attempt - 

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider].


5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms
8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

8.3 The Claimant has failed to prove that sufficient grace period was applied as required by the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme.
8.4 the Claimant has failed to prove beyond doubt that the Defendants car was photographed at the Defendand's address at the time of the alleged breach.

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

10. It is denied that the Claimant has any entitlement to the sums sought.

11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.