Didn't receive initial fine until court papers arrived

Le_Kirk

I have personally not complied with the terms and conditions of the Claimant and show that I am personally liable for their parking charge.

Would be better as: -

[STRIKE]I have personally[/STRIKE] the defendant has not complied with the terms and conditions of the Claimant and show that [STRIKE]I am personally [/STRIKE]the defendant is liable for [STRIKE]their[/STRIKE] the parking charge.

Check for any other instances where you have slipped into using First Person

[Deleted User]

the Claimant has no cause of action and has filed this claim without providing any information to the Defendant whatsoever.

NONSENSE. He still has a claim, but his conduct may be questioned and the court may impose sanctions.

The POC Fails to state if the Claimant is claiming against the Driver or Registered Keeper

REALLY? Usually the PoCs plead in the alternative - that the defendant was driver and/or keeper - which means you need to address both.

I'm not sure you can distinguish cases, submit a case as to whether signs were or were not seen or address whether there was a contract with the driver when you've never seen the terms and the only other drivers don't remember events at all.

You need a few more "it is neither admitted nor denied" to make sure they have to prove it, but not to commit to points that you can't prove either.

It may be better to seek further and better particulars of claim or a stay pending disclosure of information sought pre issue.

KeithP

SharonA, disappointing to see your full name in your most recent post.


Now that we have seen your full name, you might want to get your forum username changed to something very much more anonymous.

To help with that, you might like to read this short extract from The MSE Forum Guide - Frequently Asked Questions & Rules:

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FuzzyDuck1

DEFENCE AMENDED

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

2. The Defendant admits she is the registered keeper of the vehicle in question. The particulars of the claim, state the legal basis is brought against the Defendant in respect of “a Parking Charge notice in relation to a parking contravention which occurred on 11/07/2018’. It is denied that the Defendant was the driver of the vehicle, or any driver of the vehicle, entered into any contractual agreement with the Claimant. The burden of proof rests with the Claimant to show that (as an individual) the defendant has personally not complied with the terms and conditions of the Claimant and show that the defendant is personally liable for their parking charge.
The vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability:
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time.



2. The Particulars of Claim does not state that the Claimant is issuing the claim against the Defendant as the registered keeper of the vehicle; Ford Ka under registration XXXXX. These assertions indicate that the Claimant has failed to identify a Cause of Action. 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. consisting of a completely unsubstantiated and inflated three-figure sum. The claim form itself is vague and lacks pertinent information as to the grounds for the claimant’s case

2.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £60 'Parking Charge Notice ('PCN')' or £100 if not paid within 28 days from the PCN notice. These Parking charge notices were never received by the defendant prior to the court paper issue date .

.

3.The Claimant has failed to provide any details of the claim prior to issuing a claim at court. As such, the Claimant has failed to comply with the Practice Direction – Pre-Action Conduct and Protocols, para 6 (a) & (c).
The Claimant failed to send a “Letter before Action” and therefore fails to provide the following information:
i A clear summary of facts on which the claim is based.
ii A list of the relevant documents on which the claimant intends to rely

3.1. The defendant has not received any notice from National Car Parks Limited relating to this (PCN) whatsoever. I would suggest there should be solid evidence of this notice been sent i.e (recorded delivery, tracking details, proof of postage) to show this has been delivered to the defendant’s address which is xxxxxxxxx




4. This case can be distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding the park for free time. None of these facts are relevant in this case.

4.1. The Claimant was a member of the BPA at the time (and as of today’s date still is a member) and committed to follow its requirements and the Defendant puts the Claimant to strict proof of compliance with the applicable Code of Practice.




5. Had any contravention taken place (and this is denied), it can only have been that signage on and around the site in question was small, unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice (CoP). The Claimant would need to be put to strict proof that these Signs were Clear, visable and unambiguous at the Time and Date of the alleged Contravention.

6. It is denied that the Claimant has any legal authority to bring this claim. The legal Claimant is the Landowner (which is Tamworth Borough Council). Strict proof is required that there is a chain of contracts leading from the Landowner to National Car Parks Limited and that this chain of contracts was valid in its entirety on the date of the alleged offence, being 11th July 2018 giving the Claimant rights to bring any claim in its own name.


7. No sum payable to this Claimant was accepted or even known about by the defendant, the Registered Keeper, as the defendant was not driving and therefore was 3rd Party in this case. As per the “Doctrine of Privity” to contract, a contract cannot confer rights or impose obligations upon any person who is not a party to the contract.


8. Prior to any court hearing the Defendant has requested a Subject Access Request (SAR) to National Car Parks Limited and BW Legal to include:

8.1.(i) copies of the signs on which the Claimant relies and confirm with photographic evidence, that the signs were in situ on the date of the event. The Defendant insists that the claimant is put to proof that all of these signs were on display on the contravention date and at the time the alleged contravention took place.

(ii) Images of the signs that were at the entrance to the site on the date in question and confirmation that the signs met the BPA CoP that applied at the time of the alleged parking event.

(iii) copies of any letters sent, including the original PCN and/or Notice to Keeper.
(iv) Ticket Machine Data on the alleged Contravention date.
(v) All VRPN data from the alleged contravention date to establish if the car had entered and exited more than once in case of Drop off / Collection to which the driver would be within reasonable timescales for “Grace Periods” for a minimum of 10 minutes.




9. The 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. That sum cannot have exceeded the BPA Code of Practice maximum of £100 and the Claimant cannot recover additional charges.

9.1. The Claimant has added “costs” onto the alleged PCN £100 now claiming “Amount Claimed £167.08”, despite using a solicitor to file the claim, who must be well aware that the CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The claimants Legal Recovery (BW LEGAL) have made reference to the letter dated 31.01.2019 setting out their “Clients Position” to the Core Terms and Conditions as Follows “The Signage erected at the Car Park contained, Inter Alia, The following terms and Conditions: A Penalty charge notice will be issued for failure to pay for parking”. Penalties are not allowed.

9.2 The Parking Eye v Beavis case confirmed that a parking firm not in possession cannot plead their case in damages and could only collect the already inflated parking charge (in that case, £85) which more than covered the very minimal costs of running an automated/template letter parking regime.


9.3. The Claimant is put to strict proof to show how any alleged costs/damages have been incurred and that it formed a prominent, legible part of any terms on signage, and that it was, in fact, expended. To add vague damages plus alleged 'costs' on top is a wholly disingenuous attempt at double recovery, and is not compliant with either PoFA 2012 or The British Parking Associations (to which the claimant is a member) Code of Conduct.


9.4 According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.



10. 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.





I believe the facts contained in this Defence are true to the best of my belief.


Name: xxxxx

Signature







Date 25th February 2019

KeithP

You seem determined to identify yourself. :eek:

You would be wise to obliterate the claim number from your most recent post.


The parking companies trawl this forum and are just waiting for people to trip themselves up.

FuzzyDuck1

I can't edit my post

beamerguy

SharonA wrote: »

I can't edit my post

Why not .... under your post there is a big button that says EDIT

Coupon-mad

Come off your phone...this forum is not for phone users.

KeithP

SharonA wrote: »

I can't edit my post

Everybody else can, why can't you?

Then probably best that you stop posting.

Your full name is still fully visible in post #41.

Did you read post #44?

FuzzyDuck1

Thank you so much for bringing this to my attention! I have now edited my posts and contacted support.

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