Stuck with my defence

MaxSamuel

Hi guys,

Before I get into it I'd just like to say what an amazing community this is and I've often found comfort and reassurance amongst the threads for a number of PCN's in years gone - you guys rock! I've been a long time lurker and successfully dodged any kind of court action on a dozen occasions but now find myself helping my S/O with her recent County Court Claim Form from Gladstones on behalf of PCM (UK) Ltd - doh!

As per the newbie thread I've done the AOS and posted a written SAR directly to PCM albeit I now find myself stuck when writing any kind of defence. I have no legal experience and despite trawling through pages and pages of defences in previous cases I cannot decide what the best angle will be in this case.

For context, my S/O parked in a Visitor Parking bay on a housing estate whilst visiting friends (for roughly 2 hours) only to find a PCN on the window screen upon her return. Unbeknown at the time you need to have a visitor scratch card to use these bays which is very unclear until you read the PCM signage found 7ft up a lamppost facing the opposite direction to the VP bays. To add to this there was a normal parking sign right next to where she parked which is more prominent but doesn't mention anything about the visitor scratch card, see below link for image:

imgur.com/a/9PTvoSL

It's funny as the photo is taken from the angle you would drive into the VP bays - in this case the bay was to the right off screen in the image, see below different angle (the car was parked where Mr Royal Mail is in the image).

imgur.com/a/EJQcFta

Without wanting to waffle any longer, based on the mentioned unclear signage would this be adequate grounds for defence. It's worth noting there was no prior appeal so the driver has not been named etc etc.

Any help will be greatly appreciated!

Best,
Max

Le_Kirk

If you have been reading and using the site for a while you will know to go to the NEWBIE section post # 2 and search for one of Bargepole's concise defences and adapt it to suit the particular circumstances. Post on here for critique.

KeithP

What is the Issue Date on the Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

MaxSamuel

The issue date was 20th Feb and yes it was headed from Northampton

KeithP

MaxSamuel wrote: »

The issue date was 20th Feb and yes it was headed from Northampton

With a Claim Issue Date of 20th February, you have until Monday 11th March 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. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 25th March 2019 to file your Defence.

That's nearly three 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.

ShakeItOff

In addition to checking out the template defences in post #2 of the NEWBIES thread, it would also be a good idea for your S/O to send a subject access request to UK PCM and the DVLA. There is a link in the NEWBIES thread to the Legal Beagles SAR template. Their data protection officer's email address will be on their privacy page.

MaxSamuel

Thanks guys, as mentioned before I've already done the AOS and sent a written SAR to the data protection officer - my sticking point is the defence itself. Like what grounds would I have to defend against unclear signage or the fact that the prominent P Parking sign (imgur.com/a/9PTvoSL) doesn't indicate that a visitor scratch card is required. If anything it's simply telling visitors to use the allocated VP bays!

I've got a couple of examples that I'll use to begin drafing the defence but if anyone has a specific sentence that I could use towards unclear signage that would be great.

MaxSamuel

For ref, the particulars of claim are:

The driver of the vehicle with registration XXXXXXX (the 'Vehicle') parked in breach of the terms of parking stipulated on the signage (the 'Contract') at XXXXX on 27/08/2018 thus incurring the parking charge (the 'PCN'). The driver of the Vehicle agreed to pay the PCN within 28 days of issue yet failed to do so. The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. THE CLAIMANT CLAIMS £100 for the PCN, £60.00 contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest of £5.16 pursuant of s69 of the County Courts Act 1984 at 8.00% per annum, continuing at £0.04 per day.

MaxSamuel

Hi guys,

So this is where I'm currently at with the defence. I've got until 4pm on Monday to submit but was hoping for some critique from those more experienced with this kind of thing. The main basis for argument is the signage and that it contradicts the very prominent public P sign which doesn't indicate there are any restrictions. I've taken examples from a number of previous defences on here and come up with this:

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (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 a marked VP (Visitor Parking) bay allocated to guests visiting the XXXX housing estate.

3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver 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. Further and in the alternative, the terms on the Claimant's signage are 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.

6. The public parking sign directly next to the Visitor Parking bay indicated no restrictions to visitors and is located in a prominent position when entering the space, as can be seen in evidence photos. It is the ONLY sign visible entering the Parking Space and clearly indicates parking was unrestricted in the space in question.
7. The public parking sign is the only signage facing the road and at a suitable height to be adequately read. On the contrary the Claimant’s signage is facing away from the direction of travel and at a height of (will measure when I go back to gather further evidence), with details and terms in small print, as can be seen in evidence photos. The positioning, font size, height and lack of illumination mean that the sign is hard to read even if a visitor knows where to find it. It is invisible whilst sitting in the Parking Space.

8. The sign does not conform to the IPC's Code of Practice (Schedule 1 - Signage), which states: "Signs must, where practicable, be placed at the entrance to a site. Otherwise the signage within the site must be such that it is obvious to the motorist." The sign is not located nor mentioned near the site entrance, nor is it obviously located, as required ("Entrance signs").
9. The Claimant's PCN was accompanied with a photo of a small sign stating Visitor Parking scratch cards were required. In preparing this Defence, the Defendant searched the parking site for this sign, and found it some distance from the parking space in question, secured to a wall completely out of sight from the entrance and Parking Space.
10. In order to obtain a Visitors Scratch Card there is a telephone number at the very bottom of the Claimant’s signage which references a ‘Scratch Card Team’ to call. Whilst this wasn’t acknowledged by the Defendant on the day of the PCN, it has since been confirmed that the ‘Scratch Card Team’ do not work on Bank Holiday’s thus there would have been no way to obtain the necessary Scratch Card even if the signage has been acknowledged.

11. It should be obvious from the above that signage at this location is entirely inadequate, misleading and incapable of creating a contract with the Defendant. The only clearly visible signage stated parking was unrestricted at the time; the Claimant cannot place a contradictory sign out of sight and expect it to override the unrestricted sign in front of the Parking Space.

12. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

13. The Protection of Freedoms Act 2012, Schedule 4, 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, in this case £240.16.

14. 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.

Name
Signature
Date

Any feedback will be greatly appreciated

Le_Kirk

Looks like a good concise defence based on one of the Bargepole defences in NEWBIE section post # 2.

MaxSamuel

Thanks! One thing I picked up on is the particulars of the claim state "...parked in breach of the terms of parking stipulated on the signage (the 'Contract')" which would suggest that the signage is the contract although on the physical site signage it only says 'Private Land Terms and Conditions' - does this not contradict itself?