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Civil enforcement County Court Letter

Hello, I was wondering if anyone can help me as im lost with the next part of the process.

So In July 2018 I parked in StarPark Sunderland for the day whilst at work, I used this car park for quite a few months and always paid the £3 a day on the app.

On the 6th July I parked there as normal and went to pay on the app and the app was down. I tried this quite a few times at work although it wouldn't connect.

On the 13th September I received a letter from Civil Enforcement stating "Final Reminder before legal action" . Although I had not received any letter previously about any parking ticket? Since then I have received a letter every month, one from ZZPS, one from QDR Solicitors and yesterday the latest letter is from County Court Claims Business Centre .

I have never had a parking ticket before, or been in any debt issues so need some help with what to do next? I obviously do not want to pay the £267.25 they are now asking for.

I have done some research and noticed that the car parks need to have clear ground markings and this car park is just a gravel car park with no bays. Could that help me with this?

I have since acknowledged the letter and defended the claim.

I am wondering what to do next?

I have searched on here for the newbies thread and cannot seem to locate the info I need to send.

Thank you in advance
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Comments

  • KeithP
    KeithP Posts: 41,296 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    Hi and welcome.

    What is the Issue Date on your Claim Form?

    You now need to be reading post #2 of the NEWBIES FAQ sticky thread to discover how to compile a winning Defence.
  • ASHLEYB66
    ASHLEYB66 Posts: 12 Forumite
    Hello and thank you for replying

    Issue date is 21st March 2019

    Thanks
  • KeithP
    KeithP Posts: 41,296 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    ASHLEYB66 wrote: »
    Issue date is 21st March 2019.
    With a Claim Issue Date of 21st March, you have until Tuesday 9th April 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 Tuesday 23rd April 2019 to file your Defence.

    That's nearly four weeks away. Loads of time to produce a perfect Defence but best not 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 "defence received". 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.
  • ASHLEYB66
    ASHLEYB66 Posts: 12 Forumite
    Thank You very much for this help!!!

    How is this as a defence??


    I XXXX Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:

    1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

    2 It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXXX when it was parked at Cowan Terrace, Sunderland

    3. The PCN stated the contravention as “Payment not made in accordance with terms displayed on signage”, although this was tried many times via the Payviaphone app and by calling the telephone number.

    4. It is denied that
    a. A contract was formed, and it is further denied that any contravention of Payment not made in accordance with terms displayed on signage”, occurred or can have occurred when using the Pay by Phone option, the failure of which was not communicated to me nor was it within my control. Even if a contract was potentially formed it was frustrated by the unexpected and uncommunicated failure of the Claimant's app, and it is trite law that no party can be held liable for breach to another under such circumstances of frustration of contract.

    b. There was any agreement to pay a parking charge.

    c. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.

    d. That in addition to the parking charge there was any agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

    e. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

    f. The Pay by Phone app, being indisputably an offer of a 'distance contract', complied with the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which says:

    ''Confirmation of distance contracts: 16.—(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
    (2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
    (3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.''

    5. It is further denied that the Defendant is liable for the purported debt.

    Rebuttal of Claim
    6a. The Defendant made all reasonable efforts to make payment for parking by using an approved payment channel.
    a. Payment for parking was tried using a cashless system provided by PayByPhone, although the phone app was unsuccessful due to an app error aswell as calls to StarPark .
    b. This is a distance contract which requires certain information to be supplied in advance. .
    c. The Defendant followed the PayByPhone instructions exactly as shown on the signage at the payment machine.
    d.In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.

    7. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

    8. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
    a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

    9. The signage on this site was inadequate to form a contract with the motorist.
    a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
    b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.
    c. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.
    e. The PayByPhone signage specifically states that there is “No need to display a ticket in your car” therefore there was no breach of any ‘relevant obligation’ or ‘relevant contract’ as required under Schedule 4 of POFA.
    f. If the Claimant wanted to impose a condition to continuously display permits, then they should have drafted clear instruction to that effect, requiring specific terms of how to 'continuously display' when a paper ticket has not been issued or there is no contravention.
    g. Where contract terms have different meanings, as in this instance when a paper ticket was not issued due to the chosen method of payment, then Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.
    The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

    10. The Claimant’s representatives, Gladstones, have artificially inflated the value of the Claim from £60 to £267.25. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
    a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
    b. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £60 to £267.25. This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
    b. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

    Non-disclosure of reasonable grounds or particulars for bringing a claim:
    11. Star Park Ltd are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in
    their own name and that they have no rights to bring action regarding this claim.
    a. The Claimant is not the landowner and is merely an agent acting on behalf of the
    landowner and has failed to demonstrate their legal standing to form a contract.
    b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
    vehicle parking at the location in question
    c. The Claimant is put to 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. As a third party
    agent, the Claimant may not pursue any charge
    d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

    12. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
    ‘The driver of the vehicle registration XXXXX incurred the parking charge(s) on 06/07/2018 for breaching the terms of parking on the land at Star Park Cowan Terrace. .
    The Defendant was driving the Vehicle and/or is the Keeper of the Vehicle AND THE CLAIMANT CLAIMS £267.25 for Parking Charges / Damages and indemnity costs if applicable, together with interest of £6.81 pursuantto s69 of the County Courts Act 1984 at 8% pa, continuing to Judgement at £0.04 per day’

    13. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
    a) The Claimant has disclosed no cause of action to give rise to any debt.
    b) The Claimant has stated that a parking charge was incurred.
    c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
    d) The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.
    It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.

    14. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’

    15. The Defendant researched the matter online, and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation operated by Gladstones Solicitors. They also operate the Independent Appeals Service (IAS), the allegedly independent body appointed by the Claimant’s trade body, the IPC. This research revealed that the IAS, far from being independent, is a subsidiary of the IPC, which in turn is owned and run by the same two Directors who also run Gladstones Solicitors. The individuals in question are John Davies, and William Hurley. These findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.

    16. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

    17. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

    18. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

    19. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

    20. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

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

    Name
    Signature
    Date
  • D_P_Dance
    D_P_Dance Posts: 11,591 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    Now get your MP on side, it is obviously a scam and, imo shouldnever have got to court.

    On 18th March 2019 a Bill was enacted to curb the excesses of these private parking companies. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, and persistent offenders denied access. Hopefully life will become impossible for the worst of these scammers.

    Until this is done you should still complain to your MP, citing the new legislation.

    http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

    Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.
    You never know how far you can go until you go too far.
  • Le_Kirk
    Le_Kirk Posts: 24,695 Forumite
    Part of the Furniture 10,000 Posts Photogenic Name Dropper
    I have since acknowledged the letter and defended the claim.
    How is this as a defence??
    Bit late if you have defended the claim. Did you mean that on MCOL you said defend in full OR did you put your defence in the box on MCOL?
    If you have not yet submitted your defence, the one you posted is very long and quite old. Recommended now are the concisely written defences by Bargepole to be found in the NEWBIE thread post # 2.
  • Coupon-mad
    Coupon-mad Posts: 152,805 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    I hope you didn't 'start defence' on MCOL yet?
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • ASHLEYB66
    ASHLEYB66 Posts: 12 Forumite
    edited 28 March 2019 at 2:56PM
    I am very confused at the full situation to be entirely honest with you. Its the first time ive ever head to deal with anything like this. I don't know the jargon so I am appreciating everyone's help.

    I have had a "response pack" - Acknowledgment of Service and a tick at the bottom of the page states " i intend to defend all of this claim"

    I am now re - reading NEWBIE thread post # 2.
  • Coupon-mad
    Coupon-mad Posts: 152,805 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    We know about the response pack but you don't use that paperwork. You do it online, so have you done this?

    https://www.dropbox.com/s/ni1h8g3u5skvynt/MCOL%20AOS%20help%20file.pdf?dl=0&m=

    You confused us as you said:
    I have since acknowledged the letter and defended the claim.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • MothballsWallet
    MothballsWallet Posts: 15,877 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    ASHLEYB66 wrote: »
    <snipped>
    I have since acknowledged the letter and defended the claim.
    Ashley, I'm interpreting this sentence to mean that you've lodged the Acknowledgement of Service and stated that you intend to defend the claim: can you please let us know if my interpretation is correct as it appears to be causing some confusion as worded?
This discussion has been closed.
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