Claim Form (County Court Business Centre) - Excel Parking

Carthesis

The issue date on the form is also the 25th March.

KeithP

Carthesis wrote: »

The issue date on the form is also the 25th March.

With a Claim Issue Date of 25th March, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 29th April 2019 to file your Defence.

That's three 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.

Carthesis

OK.

Final draft.

I have merged 3 and 4, which now reads (with the same sub-list a-e as previously:

The Particulars of Claim do not make clear if the Defendant is being pursued as the Registered Keeper or the Driver of the vehicle(s), and does not include a statement of the facts on which the Claimant relies, only referring to “a Charge Notice (CN) for a contravention”, with no further description, thus failing to establish whether the claim is brought in trespass, or as contractual breach. Based upon the deficient details contained in the Particulars of Claim and other correspondence, it is presumed to be the Claimant's case that:

Amended 6.c to read:

The failure of the payment service to process payment and/or notify the Claimant of such payment in a timely manner is not responsibility of the Defendant.

Added another point under 10 regarding the signage:

The signage around the site is overall small, unlit and unobtrusive, being no larger than an A3 sheet of paper. These are placed in areas where it would be unsafe for customers to stand and read in detail as it would put them at risk of being struck by other users of the site, especially at the time of the alleged incident when there is little light in the mornings and evening.

Took out the "other cases", because although in my head they demonstrate that Excel just take the proverbial with chucking cases out and using the Courts as a scare tactic, i belatedly realised that a Judge probably won't see it that way, and that unless there is a case which is much more similar to my own which I can easily find (and I have been unable to do so via Google) then it probably doesn't help to have it in.

So I'm now down to 13 points, of which some are the necessary pre- and post-ambles, and overall about 3 sides of A4 once the headers / signature boxes etc. are removed.

Coupon-mad

I have literally no idea why anyone likes the old defence versions that re-state the claimant's case! Why would anyone do this:

Based upon the deficient details contained in the Particulars of Claim and other correspondence, it is presumed to be the Claimant's case that:

The defence is still so wordy compared with the 8 point example.

Carthesis

Point taken. I think it's because (certainly for me) if you are alleging that the Particulars aren't provided, then it feels like the right thing to effectively say "I'm guessing here but I presume this?"

Anyway. I have attempted to cut down some of the wordiness, and I have removed the bit about Gladstones / IPC / IAS because on a re-read, it seemed like it wasn't going to score any points and was a bit irrelevant.

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 XXXXXX, of which the Defendant is the Registered Keeper, was parked on the material date in the location alleged (an unmarked car park on land which is scheduled for future development), and had a valid ticket covering the period of parking required.

3) The Particulars of Claim do not make clear if the Defendant is being pursued as the Registered Keeper or the Driver of the vehicle(s), and does not include a statement of the facts on which the Claimant relies, only referring to “a Charge Notice (CN) for a contravention”, with no further description, thus failing to establish whether the claim is brought in trespass, or as contractual breach.

4) Based on the above, it is contended 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. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

5) It is denied that:

a) A contract was formed, and it is further denied that any contravention of ''no ticket displayed'' occurred or can have occurred when using the “pay by phone” option via the RingGo app.

b) There were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering.

c) The Claimant fully complied with their obligations within the BPA or IPC Code(s) of Practice.

d) The RingGo app, being indisputably an offer of a 'distance contract', complied with the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, Section 16.

6) It is asserted that the Defendant made all reasonable efforts to make payment for parking:

a) Payment for parking was made via telephone using a cashless system provided by the RingGo app, which makes no provision for the printing of a ticket to display;

b) The payment service did not indicate any failure to make payment and responded as if payment had been made. As such the Defendant believed the necessary payment had been made;

c) The failure of the payment service to process payment and/or notify the Claimant of such payment in a timely manner is not responsibility of the Defendant.

d) Accordingly, it is denied that any contravention occurred. Further, the Defendant submits that no losses have been incurred by the Claimant, as payment for the parking period has been made and can be evidenced.

7) It is denied that a Charge Notice (CN) was affixed to the car on the material date given in the Particulars. The approach used here is to issue a ‘hybrid’ notice in a yellow/black envelope impersonating authority, bearing the legend “this is NOT a Parking Charge Notice”. The Claimant suggests this ‘hybrid’ notice was a CN, which is disputed, hence the Driver was not served with a document that created any liability. It is further put to the Court that this approach does not meet the provisions of The Protection of Freedoms Act 2012 (POFA2012) Schedule 4 Paragraph 8, hence there is no liability to the Registered Keeper.

8) At best, parking without authorisation via payment could be pursued by the Landowner in the event that damages were caused by a trespass. However, a parking charge cannot be dressed up as a fee, or a sum in damages owed to a non-landowner parking firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass. Such a matter would be limited to the landowner themselves claiming for a nominal sum.

9) The Claimant has inflated the value of the Claim from £100 to £160. The Defendant submits the added costs have not actually been incurred by the Claimant as at no time has any explanation been provided as to how the sum has been calculated. This appears to be an attempt at double recovery, which POFA2012 Schedule 4 Section 4(5) specifically disallows.

10) The signage on and around the site in question was unclear and not prominent and did not meet the BPA or IPC Code(s) of Practice:

a) The signage around the site is overall small, unlit and unobtrusive, being no larger than an A3 sheet of paper, and located in areas where it would be unsafe for customers to stand and read.

b) The size of font advertising parking is much larger than the font of the Terms and Conditions, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy either Lord Denning’s "Red Hand Rule” or the test set out in ParkingEye Ltd v Beavis [2015] UKSC 67.

c) Where contract terms have different meanings, as here 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.

11) The Defendant has reasonable belief that the Claimant does 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. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisations from the landowner. The landowner contract, if in existence, is likely to define that the Claimant can manage the site following the procedure(s) set out in POFA2012. It is suggested that the approach adopted is unlikely to have been in the contemplation of the Claimant's principal.

12) 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. The Defendant denies the claim in its entirety voiding any liability to the Claimant for all amounts due to the aforementioned reasons. 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.

Coupon-mad

6 It is asserted that the Defendant made all reasonable efforts to make payment for parking:

Nope - should read ''the driver'' surely, as you are partly relying on the POFA and 'no keeper liability'.

Much better to read, that defence. Looks good to me. i would add this back in though as you have nothing disputing the fact they are unlikely to be the landowner:

The Claimant is 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. 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.
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. [STRIKE]Further, no loss is suffered in this instance where payment for the period of parking has been made;[/STRIKE]
It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can manage the site following the procedure set out in POFA2012, Schedule 4, Paragraph 8;
It is suggested that placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then providing the Registered Keeper with a postal NtK outside the timeline set out in POFA2012, is unlikely to have been in the contemplation of the Claimant's principal.

Without the line about 'no loss' which I have struck through. Has no legs.

Le_Kirk

If that is your VRM in your point 2., you might want to replace it with ABnnCDE or similar.

Carthesis

Le_Kirk wrote: »

If that is your VRM in your point 2., you might want to replace it with ABnnCDE or similar.

Good spot. Thanks.

C-M - Sorted the driver issue. That was a fair point. Changed 11. to read:

The Defendant has reasonable belief that the Claimant is not the landowner and is merely an agent acting on behalf of the landowner and, as such, does not have the authority to issue charges on this land in their own name and further that they have no rights to bring action regarding this claim. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisations from the landowner. The landowner contract, if in existence, is likely to define that the Claimant can manage the site following the procedure(s) set out in POFA2012. It is suggested that the approach adopted is unlikely to have been in the contemplation of the Claimant's principal.

Coupon-mad

Much better now.

Carthesis

I have also followed the recommended approach of emailing a SAR to Excel asking for basically everything I can think of, using the list given in the NEWBIES thread.