Received a Letter Before Claim from Vehicle Control Services - help

Chucky1234

KeithP wrote: »

What is the Issue Date on your Claim Form?

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

The issue date is the 7th May. It came from County Court Business Centre in Northampton.

I have followed the instructions on the sticky and logged into MCOL and completed the AOS. I have noted that I have until 9th June to submit my defence (via the MCOL page, correct?)

At this stage, is it a case of me putting my defence together, and then posting it here for review?

KeithP

Almost right with the dates.
As 9th June is a Sunday, you have the next working day to file your Defence.

With a Claim Issue Date of 7th May, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 10th June 2019 to file your Defence.

That's over a month away. Loads of time to produce a perfect Defence, but don't leave it to the 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 "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep 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.

Yes, get cracking on your Defence - ideas in post #2 of the NEWBIES thread (link above) - and post your draft here for critique if you wish.

Chucky1234

Thank you for that breakdown, it is very helpful. One key point which I cannot figure out though, is how to find out whether byelaws apply on that land or not? This is the main part of my defence and I am not too sure whether they apply. Shall I just include it in my defence and put the claimant to prove otherwise?

Also, is it all done on-line now? I don't need to do anything further with this claim form? I note on the claim form there is a box for my defence.... I assume by acknowledging it online and emailing my defence as above, I can ignore the paper claim form, is this correct?

Thank you for your help.

KeithP

You do not need to do anything more with your Claim Form, but do keep it - it has information on it that you will need later.

Chucky1234

Apologies, I am having trouble drafting my defence as in my case the driver was parked on the end of a row, completely outside of a bay, thereby breaching their terms.

I cannot seem to find any defences similar to this? Could somebody point me in the right direction? I have had a look at the sticky and also searched google, but I'm not sure where to start without a similar case.

Chucky1234

https://www.whatdotheyknow.com/request/railway_byelaws_at_sandwell_and

I have now found this, confirming railway byelaws do apply and cover the whole car park. Should my defence now not focus on trying to defend the driver who clearly parked outside a marked bay, and instead purely focus on the fact that I am not liable on that site as registered keeper?

Coupon-mad

Chucky1234 wrote: »

Apologies, I am having trouble drafting my defence as in my case the driver was parked on the end of a row, completely outside of a bay, thereby breaching their terms.

I cannot seem to find any defences similar to this? Could somebody point me in the right direction? I have had a look at the sticky and also searched google, but I'm not sure where to start without a similar case.

Why not search this forum for defence railway VCS ?

All the cases I can recall were EXACTLY like yours in all respects. ALL 'out of bay'.

When I said this two weeks ago:

Read up on why most railway car parks are not 'relevant land' under the POFA due to railway byelaws applying (see the Centro threads on here and on pepipoo forum).

I meant for you to search for such keywords and prepare in advance...

It's sad to see you are unprepared and not even aware of how to file a defence and were wanting to fill the form in, which we never suggest. You do need to read a few VCS railway threads and the NEWBIES thread post #2, to get up to speed.

Chucky1234

Thank you Coupon-Mad for your help and for giving me a kick up the rear, it is much appreciated.

From your guidance, I have now found a couple of very similar cases which I have used to make my defence.

I will post my drafted defence in the next post, and I would be grateful if people wouldn't mind giving it a quick look when you have 5 minutes.

Extremely grateful for everyones help and although I'm nervous, I am confident I can beat it with all the amazing help received on here.

In the meantime... I will keep reading up on various threads.

Chucky1234

Defence

1. As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.

2. The Defendant denies any liability to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case:
(a)The carpark in which the Claimant alleges the breach of contract occurred is covered by the Railway
Byelaws 2005 (as amended)(RB2005). Parking enforcement is therefore a criminal matter not a civil
matter and as such, Keeper Liability does not apply
(b) Breaches of byelaws are prosecuted at Magistrates Court, not County Court
(c) The Claimant has not identified the driver
(d) The Claimant did not offer a genuine contract and the amount claimed was intended as an
unconscionable penalty.
(e) The Claimant has disclosed no cause of action

3. The Claimant has provided insufficient details in the Particulars to enable me to file a complete defence. In particular, full details of the alleged contract have been provided.

For example CPR 16.4 states:
(1) Particulars of claim must include –
(a) a concise statement of the facts on which the claimant relies;
(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph(2);
(c) if the claimant is seeking aggravated damages(GL) or exemplary damages(GL), a statement to that effect and his grounds for claiming them;
(d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and
(e) such other matters as may be set out in a practice direction.
(2) If the claimant is seeking interest he must –
(a) state whether he is doing so –
(i) under the terms of a contract;
(ii) under an enactment and if so which; or
(iii) on some other basis and if so what that basis is; and
(b) if the claim is for a specified amount of money, state –
(i) the percentage rate at which interest is claimed;
(ii) the date from which it is claimed;
(iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued;
(iv) the total amount of interest claimed to the date of calculation; and
(v) the daily rate at which interest accrues after that date.


In addition, PD 16 states the following:

7.3 Where a claim is based upon a written agreement:
(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and
(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).
7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.
7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.




4. It is the understanding of The Defendant that The Claimant has brought a claim that discloses no cause of action. The Defendant has the reasonable belief that the Claimant is abusing the court process by using the threat of action to alarm the Defendant into making a payment that is not owed. The Defendant is aware that the Claimant has a well-documented history of issuing large numbers of court claims that are discontinued at very short notice before a scheduled hearing.

Alternatively, the Defendant asks that the claimant is required to file particulars which comply with practice directions and include at least the following information:
(a) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
(b) A copy of any contract it is alleged was in place (eg copies of signage)
(c) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
(d) Whether keeper liability is being claimed, and if so copies of any notice to driver/notice to keeper
(e) Whether the Claimant is acting as agent or principal, together with a list of documents they will rely on in this matter
(f) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
(g) If interest charges are being claimed, the basis on which this is being claimed

5. Centro Sandwell and Dudley Station Park Main Park and Ride – the location of the Defendant’s alleged contravention – is covered by railway byelaws. This fact is confirmed in two reports Centro (now known as Network West Midlands) published, the first to the Integrated Transport Authority (ITA) in April 2014 and the second containing its implementation plan for parking enforcement in June 2014. Both documents are explicit in identifying that the Railway sites are covered by the RB2005 and Centro highlight legal advice that they received to that fact.

(a) For example, the June document item 10.3 states that 'With regard to Rail Car Parks, Centro would need to rely on a breach of Byelaw 14 in order to prosecute a person in contravention of those regulations. Centro’s (now known as Network West Midlands) 28 April 2014 report to the Integrated Transport Authority stated:

Centro’s legal team has undertaken a review of appropriate legislation to understand what enforcement action can be taken against customers who park inappropriately and/or cause obstructions to other car park users. Subject to Member approval Railway Byelaw 14 would effectively allow Centro to take appropriate action against cars parked outside of marked bays where the car park is appropriately signed. Centro’s use of Byelaw 14 is something fully supported by Network Rail and London Midland. In relation to non-railway Park and Ride sites, whilst Centro as a private landowner has no power to immobilise or remove vehicles, it does have the ability to enforce inappropriate parking by way of issuing parking notices subject to member approval.

(b) The June document also explicitly states that the Magistrates Court route is the correct route for enforcement. Clause 10.5 states 'penalty notices can therefore be issued and, if considered necessary, an action brought in the Magistrates Court in the event of non-payment of the penalty sum'.

6. Parking infringements at the site are subject to statutory controls and should result in the issuance of Penalty Notices under Byelaw 14, not Parking Charge Notices under civil law.

7. Under the Protection of Freedoms Act 2012 (the Act), Keeper Liability cannot be relied upon unless the land is “relevant land” and this legislation expressly removes public roads from the legislation. As a matter of law, therefore, it is not Relevant Land within the meaning of section 3(1)© of Schedule 4 of the Act, and thus only the driver can be pursued, if indeed Vehicle Control Services is entitled to pursue anyone. As such, this claim, which relies on Keeper Liability, has no prospect whatsoever of succeeding as it fails ab initio and should therefore be dismissed. Vehicle Control Services is fully aware and conversant with this element of the legislation.

8. The Claimant is put to strict proof that a “relevant obligation” existed and that the Claimant has followed the correct procedure to transfer liability to the Registered Keeper.

9. The Defendant neither admits nor denies that he was the driver, and can prove to the Court that more than one person had access to and was insured to drive the vehicle XXXXXXX at the time of the alleged breach of contract. The Claimant is put to strict proof that the Defendant was the driver on the day.

10. It is clear from the claim as submitted that Vehicle Control Services is accusing the Defendant of having parked the vehicle for this period. However, the Defendant is merely the registered keeper of the vehicle, and no evidence has been adduced by Vehicle Control Services as to the driver’s identity. Under section 54 and schedules 8 and 9 of the Protection of Freedoms Act 2012 (the Act), the keeper can only be held liable if Vehicle Control Services can demonstrate that it has given the keeper every lawful opportunity to name the driver, and certain other conditions must be complied with. It is not admitted that Vehicle Control Services has complied with the Act; indeed it is impossible for them to do so and I put Vehicle Control Services to strict proof of its compliance.

11. It is denied that the Claimant is the lawful occupier of the land. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim. The Claimant is therefore put to strict proof that at the time of the alleged event they were in possession of sufficient authority to issue parking charges and institute proceedings in their own name and can demonstrate a clear chain of authority from the landowner.

12. The Claimant has stated in the Particulars of Claim that “the driver is liable for a Parking Charge in accordance with the Terms and Conditions as prominently displayed on this site”.

(a) The Defendant is in no position to confirm what signs were in place more than two years ago. The Defendant was unaware of any signs until alerted to them by the Claimant’s Parking Charge Notice.

(b) The Defendant denies that the current signs outlining the terms and conditions are clear and visible. A clear and visible sign stating the terms and conditions at the entrance to the car park is a specific requirement of the Independent Parking Committee Code of Practice that the Claimant is required to follow. This is absent. The Defendant refers the court to Excel Parking Services Ltd v Cutts that the content relied on by the Claimant could not be read by a driver entering the car park. The Defendant has video evidence that any signs outlining terms and conditions are not visible or readable in a vehicle which can be supplied if required.

(c)The (current) sign at the entrance to the car park carries the name "Network West Midlands" relatively prominently, and offers free parking. This would reasonably be taken by a motorist entering the car park as meaning that one or both of those entities is a legal person granting a licence to use the car park.

(d) The supposed contractual terms offered by VCS are considerably less prominent, and indeed entirely unreadable by the driver of a moving vehicle.

(e) Accordingly the driver of my vehicle was using the car park under the terms of a licence granted by "Network West Midlands". As a result no offer of parking as contractual consideration could be made by VCS, therefore no contract exists with VCS (even if the signage elsewhere in the car park were prominent enough to convey the terms of such a contract, which is denied).

(f) If the court is minded to accept that the Claimant has standing then I submit that the signs on site at the time of the alleged event were insufficient in terms of their numbers, distribution, wording and lighting to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the Independent Parking Committee’s Accredited Operators Scheme a signatory to which the Claimant was at the relevant time.

(g) The Claimant is therefore put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant. The Claimant is put to strict proof of all his assertions.

13. The Particulars of Claim do not give any reason why the Claimant requires a payment other than that it results from the vehicle being “parked beyond the bay markings” (#86). This vague accusation does not reveal a cause of action and is akin to a template claim issued for no other purpose that to use the threat of court to force payment of a sum that is not owed.

14. The Defendant denies that he would have agreed to pay the original demand of £100 to perform the alleged but undisclosed conduct. The Defendant has no idea what terms and conditions were stated on the signs but disputes the Claimant’s statement that such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable belief that the Claimant’s intention was not to offer a genuine contract to park at that price - since it is a free car park - and the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188: Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in almost identical words (21 February 2014).

15. The Traffic Management Act 2004 (TMA2004) gives guidance to the level of penalty charges reflecting the severity of the contravention. The equivalent guidance for this case (parked beyond the bay markings) are £25 rising to £50 after 14 days. In comparison to this the sum demanded is clearly far more than that needed to deter and is therefore disproportionate.

16. The Consumer Rights Act 2015 Schedule 2, Part 1 states that the following may be unfair: (6) A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation. The Defendant alleges that the requested parking charge is disproportionate compared to the guidance given in the TMA2004.


17. The Defendant notes that the Claimant intends to rely on ParkingEye v Beavis. The Defendant is aware that the facts in the present case including the Claimant’s interest in the land differ significantly from Beavis in a number of important details.
(a) The land, as mentioned previously, is covered by byelaws
(b) The driver has not been identified
(c) There was no contractual offer made giving a licence to park nor any promise made or contract agreed based on any prominent signs or properly marked lines
(d) There is no comparable legitimate commercial justification for charging more than the landowner could claim by way of restitutionary damages and/or under the byelaws.

18. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, then absent any legitimate interest, it is a penalty and unenforceable. It is argued that there is no legitimate interest in this case.

With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.

19. The Claimant must demonstrate that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the Registered Keeper.

20. The Defendant invites the court to strike out the claim as having no prospect of success. Alternatively, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim. In the event of the Claimant amending their Particulars of Claim and/or adding significant details not yet disclosed, the Defendant reserves the right to add a fair response to new points made by this Claimant, to prevent a significant imbalance in the Defendant's rights as an unrepresented consumer.

The defendant believes the facts stated in this defence are true.

Coupon-mad

That is a good start to work with but it has too much old stuff IMHO.

Try this:

In The County Court

Claim No: XXXXXXX

Between

Vehicle Control Services Ltd (Claimant)

-and-

XXXXXXX (Defendant)

____________

DEFENCE
____________

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date, which the Claimant has stated was 18 months ago, November 2017. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

The location is subject to statutory control and the parking charge is statute barred
2. The facts regarding this location - Sandwell and Dudley Park and Ride car park - is land that is 'under statutory control' and as such, it does not meet the definition of 'relevant land' within the meaning set out in Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA').

3. The current national Railway Byelaws ('RB2005') apply to this land::
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/4202/railway-byelaws.pdf
The Railway Byelaws are made under section 219 of the Transport Act 2000 by the Strategic Rail Authority and were confirmed under Schedule 20 of the Transport Act 2000 by the Secretary of State for Transport on 22 June 2005.

4. Byelaw 14 provides for and covers traffic signs, causing obstructions and parking on railway land, including public car parks.

5. Therefore the Claimant is in difficulty regarding their claim, due to these facts:

(i) Any parking enforcement remains in the gift of the relevant authority, by laying a case before magistrates under the applicable byelaw 'RB2005' within six months of a parking event. That period has long since expired and is statute barred.

(ii) Notwithstanding the above, parking enforcement at this location falls outside of the jurisdiction of any private parking company using the small claims track. Enacted and current Byelaws cannot be switched 'on or off' at the whim of the authorities, not least because it leaves a consumer confused and with no certainty of terms, even if the Claimant argues that the unsupported and unknown 'option' of being sued by them for up to six years is preferable to prosecution within six months. Moreover, it is clear that the driver was given no options in this regard and the fact remains that VCS are a private company operating a 'contractual breach' regime which attempts to subvert the RB2005.

(iii) The location of the Defendant's alleged contravention is covered by the RB2005, and the authorities are already aware from legal advice that parking enforcement must be laid before magistrates. This is confirmed in two reports that the West Midlands Passenger Transport Executive - branded as 'Centro' - published, the first report to the Integrated Transport Authority (ITA) in April 2014 and the second containing its implementation plan for parking enforcement.

(iv) Both documents are explicit in identifying that such car parks are covered by the RB2005 and Centro highlight their legal advice received, that: ''With regard to Rail Car Parks, Centro would need to rely on a breach of Byelaw 14 in order to prosecute a person in contravention of those regulations. [...] Centro's legal team has undertaken a review of appropriate legislation to understand what enforcement action can be taken against customers who park inappropriately and/or cause obstructions to other car park users. Subject to Member approval Railway Byelaw 14 would effectively allow Centro to take appropriate action against cars parked outside of marked bays where the car park is appropriately signed.'' Clause 10.5 states ''penalty notices can therefore be issued and, if considered necessary, an action brought in the Magistrates Court in the event of non-payment of the penalty sum''.

(v) Consequently, and even if the Claimants produce a landowner contract, any breach of the terms and conditions (which is denied) could only have been the subject of a remedy by prosecution sought on or before April 2018, and not by this Claimant, but instead by West Midlands Combined Authority ('WMCA') who operate rail and Metro locations co-ordinated by Centro. At Sandwell and Dudley Park and Ride car park, the parking is provided under terms agreed with WMCA, a 'strategic authority' with powers over transport, economic development and regeneration, established by statutory instrument under the Local Democracy, Economic Development and Construction Act 2009.

Liability cannot be transferred to the registered keeper
6. Even if the Claimant is able to show that this is 'relevant land', or that they are able to operate a contractual model here, their 2017 Notices to Keeper failed to comply with the POFA. Therefore this Claimant has no cause of action against a registered keeper Defendant. This claim, which relies on Keeper Liability, has no prospect of success as it fails ab initio and should therefore be dismissed.

7. Even if the Court is minded to hear the case, the fact that this is not 'relevant land' means that a registered keeper cannot be held liable under the POFA and there is no alternative rule of law by which a registered keeper can be pursued, in the absence of evidence regarding the identity of the driver in 2017.

8. There can be no adverse inference in the Defendant's choice not to respond to the Claimant's letters and neither can the Defendant be pursued under the law of agency. The owner of VCS and its sister parking company, Excel, is already well aware from a June 2017 Appeal case at Manchester (Excel v Smith, Claim No. C0DP9C4E/M17X062 heard on appeal after the county court Judge fell into error regarding liability) that the Senior Circuit Judge held when upholding the appeal, that Excel's incorrect citation of CPS Ltd v AJH Films Ltd to try to argue that a keeper/driver agency relationship can exist against individuals, is 'improper'.

9. The Defendant was under no legal obligation to disclose the name of the driver and can prove to the Court that more than one person had access to and was insured to drive the vehicle at the time of the alleged breach of contract, so the balance of probabilities is not tipped in the Claimant's favour.

10. This contention is supported by the authority of a January 2019 decision by the Local Government Ombudsman ('LGO') in which, based upon his careful and considered interpretation of the explanatory notes for Schedule 4 of the POFA, the LGO held that it is irrelevant whether or not the landowner is exercising its statutory control powers. Kent County Council were forced to pay a motorist £100 in compensation for issuing a private parking ticket illegally, and allowing their contractor to wrongly tell the registered keeper that they were liable as if POFA could apply on non-relevant land, when it cannot.

11. The Defendant's contentions are further supported by the Department for Transport's 2012 Guidance and explanatory notes about the POFA, at
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9155/guidance-unpaid-parking-charges.pdf

12. There, the DFT clarify the question at 4: ''On what type of land does Schedule 4 apply? 4.1 The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded.''

Alternative defence - unclear signs & contractual terms
13. The Defendant is aware from visiting the site as a result of this claim, that the current sign at the entrance to the car park carries the name "Network West Midlands" relatively prominently, and offers free parking. This would reasonably be taken by a motorist entering the car park as meaning that this entity is a legal person granting a licence to use the car park. The supposed contractual terms offered by VCS are considerably less prominent, and indeed entirely unreadable by the driver of a moving vehicle.

14. There appears to be a small, non-prominent VCS sign advising of the rules of the car park, with a lack of white space/large lettering. Regarding the £100 (described not as a contractual charge but as a 'penalty' by the WMCA on their website) there is a minuscule small print paragraph at the foot of the sign, in the smallest of the fonts used. It cannot be said that a clear and obvious contract has been prominently brought to the attention of drivers, contrary to (a) the findings of the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') and (b) the mandatory signage rules set out in the Claimant's Trade Body Code of Practice, and (c) the POFA requirement for 'adequate notice' and (d) Lord Denning's 'Red Hand Rule'.

15. The signage fails to communicate that a contract or licence to park is on offer in areas of faded/no markings, and this Claimant offers nothing of value by way of consideration to drivers parking there.

16. Given this lack of clarity regarding how or where a driver is, or is not, allowed to park in this car park and who offers the licence and whether the displayed railway byelaws are on any particular day 'on' or 'off', no contract can be construed from the Claimant's signage, under the contra proferentem principle. Thus, it is denied that the driver breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

17. The Defendant is aware from local knowledge and newspaper articles, that Centro were continuing to re-paint faded lines and demarcate spaces at its rail car parks in that period and it is believed there may have been work in progress which obscured any older faded lines on the tarmac and that parking bays were likely to have been out of action on or around the material date. The Defendant avers that a driver of this vehicle arriving for the park & ride, with a train to catch, would only park in non-designated spaces if there was no alternative, or indeed if the parking areas were poorly marked, or not marked at all.

18. There would not have been an informed decision to risk or agree to paying £100 to use the local 'park and ride' when parking on street and/or getting a taxi instead would have cost ten times less. Thus the Defendant avers that there was a lack of transparent consumer contract terms and information capable of binding a driver, and the elements of a contract did not exist.

19. Deterrence, in these circumstances, is inappropriate. By failing to provide enough spaces - even temporarily due to re-painting faded lines - it is unconscionable that a park & ride service (either by themselves or through their agents) should penalise drivers for their own failure to fulfil the 'park' element of the advertised 'free' service. This Claimant is put to strict proof regarding the signs and markings not just around the car, but in the surrounding car park to show the conditions and spaces on offer or not, on the material date.

No standing
20. The Claimant has no standing to litigate in this matter and cannot mislead the court and the Defendant regarding this and Keeper Liability. Even if the Claimant's alternative parking regime operates with WMCA or Centro's agreement, somehow believing that private contractual penalties can be offered in lieu of prosecution, there was no privity of contract between the Claimant and the driver due to the RB2005 taking precedence and the entrance signs offering free parking granted by "Network West Midlands" (Centro).

21. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf at RB2005 locations. The Defendant has the reasonable belief that the Claimant has a bare licence to run an ill-founded regime operating contrary to the legal advice sought and published by Centro, and does not have the standing to issue charges on this land in their own name, let alone pursue a parking charge long after the relevant combined authority could have done under RB2005.

ParkingEye Ltd v Beavis [/I][2015] UKSC 67 is fully distinguished
22. The Defendant notes that the Claimant intends to rely on the Beavis case, however the facts in the present case differ significantly in a number of important details:
(i) The land, as mentioned previously, is covered by byelaws
(ii) The driver has not been identified
(iii) There was no contractual offer made giving a licence to park nor any promise made or contract agreed based on any prominent signs or properly marked lines
(iv) There is no comparable legitimate interest or commercial justification for charging more than the landowner could claim by way of restitutionary damages and/or under the byelaws.
(v) The charge exists purely to subvert the RB2005 and to penalise park and ride drivers denied a space to park. The penalty rule remains engaged in these cases, the Supreme Court Judges held, and they dismissed any possibility that a charge that exists purely to punish could be recoverable.

Added costs - disproportionate and unrecoverable
23. The Defendant has the reasonable belief that the Claimant has not incurred additional damages or debt collection costs to pursue an inflated 'parking charge' that the Supreme Court in Beavis held already covers these letters. The POFA, at para 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 £100, and only subject to 'adequate notice' on signs and the existence of a 'relevant contract' or 'relevant obligation' all of which are denied.

Summary - the claim discloses no legal basis or cause of action.
24. The Defendant invites the court to dismiss the claim as having no prospect of success.

25. In the alternative, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim and/or to attend a preliminary hearing regarding the fundamental matter of keeper liability. In the event of the Claimant amending their Particulars of Claim and/or adding significant details not yet disclosed, the Defendant reserves the right to add a fair response to new points made by this Claimant, to prevent a significant imbalance in the Defendant's rights as an unrepresented consumer.


Statement of Truth:

I believe that the facts stated in this Defence are true.


Name

Signature

Date