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County Court, help needed with defence
Double_Dip
Posts: 8 Forumite
Hi, deliberately being vague and spelling mistakes to avoid searches!
My pal received a claim for a few (less than five) PCNs received, in 2017/18. . These were all given on a B_usiness P_ark (BP). The car was parked on the road at the entrance behind double yellow lines which were in place around a corner. Signs say park in bay only.
My friend appealed the first couple of PCNS and got a generic reply so ignored the remainder. Following all debt letters which were also ignored, she engaged with their solicitors (as per forum advice) seeking back up and evidence, SAR etc. This went on for a number of months, now have an impending court case which I need to defend. AOS on 1/4/19
Link to photos: update - not letting me post link in case I am a spammer
This is the proposed statement. As you can see from the pics (no links allowed) there are double yellow lines on the site. for clarity car is not parked on any yellow lines, but wanted to include reference to this as continuation of the highway code and by not having double yellow lines where the vehicle is parked is entrapment. Also is there an option for harassment and bullying by the Defendant?
Been reading the Forum for a while and would like to thank everyone on here, should my pal be successful there will be a donation to Crisis on your behalf - rather them than these vultures.
Thank you very much.
STATEMENT OF DEFENCE
1) The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2.a)
No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012.
2.b)
Where a Notice to Driver was given no evidence has been provided to show that a valid Notice to Keeper was served in accordance with Paragraph 8, Schedule 4 of the Protection of Freedoms Act 2012.
2.c)
Where no Notice to Driver was given no evidence has been provided to show that a valid Notice to Keeper was served in accordance with Paragraph 9, Schedule 4 of the Protection of Freedoms Act 2012.
2.d)
No evidence has been provided to show that the Creditor has made a valid application for keepers details in accordance with Paragraph 11, Schedule 4 of the Protection of Freedoms Act 2012.
3) The Defendant has the reasonable belief that the Claimant does not have the capacity to take legal action in this matter.
4). 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. The Defendant has requested this at least four time all of which were denied.
5) The Defendant has asked the Claimant's solicitor for the documentary evidence required by its client's Code of Practice Para B (1.1) that demonstrates sufficient right to occupy the land in question. The Defendant has requested this at least four time all of which were denied.
6) The Defendant has asked the Claimants solicitor for a full site map, dimensions of the signs and markings of all yellow lines. The Defendant has requested this at least four time all of which were denied.
7) The terms on the Claimant's signage do not offer any kind of parking service to anyone who isn't in a pre-authorised vehicle or holding a permit. If there is no offer of parking then the basic requirements for forming a contract with the driver are not present (in basic terms, 'offer', 'acceptance', and 'consideration'), and no contract can be formed. If there is no contract then there is no breach, and hence no charge for a breach. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
8) The Defendant denies that the signs at the location were in compliance with the Claimant's trade association Code of Practice. The Claimant did not display clear signs within the site that were capable of being read and/or form a contract. There is no prominent signage at the entrance of the parking area. Signage is hidden by foliage. Other signs are raised high/low with small text which is difficult to read. The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver and the notices do not provide the 'adequate notice' of the parking charge which is mandatory under Schedule 4 of the POFA.
9) The Defendant believes that the use of single and double yellow lines and hatching within the BP is the continuation of the Highway code and overrides any signs that are not recognised within the Highway Code.
10) The Defendant believes that the strategic use of single and double yellow lines and hatching within the BP is deliberate entrapment otherwise extend the yellow markings to all areas where parking is not permitted.
11) The Defendant believes, Parking in what is effectively a 'no parking' arrangement would be a Trespass issue, for which only the landholder can take action (not some parking company) and only for nominal or actual damages, not some made-up £100 charge.
12) The Defendant denies that driver or keeper of the vehicle agreed to pay the PCN within 28 days of issue as it states on the claim form.
13). 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 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.
14) The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s);. 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.
15) 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.
16) 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 £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.
17) The Defendant also disputes that the Claimant has incurred £70 solicitor cost. The Particulars of Claim are incompetent in disclosing no cause of action.
18) The Claimant might argue that the Supreme Court’s decision is Parking Eye v. Beavis is applicable. The Defendant will argue that the present case meets none of the conditions that the Supreme Court stated were required for a parking notice to be exempt from the well-established principle that penalty charges cannot be recovered. The main difference is that the Supreme Court determined that, in a retail park, there was a public interest in ensuring a turnover of visitors that justified a disincentive to overstay. There is clearly no such interest in a third party attempting to impose conditions in a BP where there is no turnover of visitors and the defendant’s vehicle was not in pay-and-display car parking.
13) 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
My pal received a claim for a few (less than five) PCNs received, in 2017/18. . These were all given on a B_usiness P_ark (BP). The car was parked on the road at the entrance behind double yellow lines which were in place around a corner. Signs say park in bay only.
My friend appealed the first couple of PCNS and got a generic reply so ignored the remainder. Following all debt letters which were also ignored, she engaged with their solicitors (as per forum advice) seeking back up and evidence, SAR etc. This went on for a number of months, now have an impending court case which I need to defend. AOS on 1/4/19
Link to photos: update - not letting me post link in case I am a spammer
This is the proposed statement. As you can see from the pics (no links allowed) there are double yellow lines on the site. for clarity car is not parked on any yellow lines, but wanted to include reference to this as continuation of the highway code and by not having double yellow lines where the vehicle is parked is entrapment. Also is there an option for harassment and bullying by the Defendant?
Been reading the Forum for a while and would like to thank everyone on here, should my pal be successful there will be a donation to Crisis on your behalf - rather them than these vultures.
Thank you very much.
STATEMENT OF DEFENCE
1) The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2.a)
No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012.
2.b)
Where a Notice to Driver was given no evidence has been provided to show that a valid Notice to Keeper was served in accordance with Paragraph 8, Schedule 4 of the Protection of Freedoms Act 2012.
2.c)
Where no Notice to Driver was given no evidence has been provided to show that a valid Notice to Keeper was served in accordance with Paragraph 9, Schedule 4 of the Protection of Freedoms Act 2012.
2.d)
No evidence has been provided to show that the Creditor has made a valid application for keepers details in accordance with Paragraph 11, Schedule 4 of the Protection of Freedoms Act 2012.
3) The Defendant has the reasonable belief that the Claimant does not have the capacity to take legal action in this matter.
4). 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. The Defendant has requested this at least four time all of which were denied.
5) The Defendant has asked the Claimant's solicitor for the documentary evidence required by its client's Code of Practice Para B (1.1) that demonstrates sufficient right to occupy the land in question. The Defendant has requested this at least four time all of which were denied.
6) The Defendant has asked the Claimants solicitor for a full site map, dimensions of the signs and markings of all yellow lines. The Defendant has requested this at least four time all of which were denied.
7) The terms on the Claimant's signage do not offer any kind of parking service to anyone who isn't in a pre-authorised vehicle or holding a permit. If there is no offer of parking then the basic requirements for forming a contract with the driver are not present (in basic terms, 'offer', 'acceptance', and 'consideration'), and no contract can be formed. If there is no contract then there is no breach, and hence no charge for a breach. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
8) The Defendant denies that the signs at the location were in compliance with the Claimant's trade association Code of Practice. The Claimant did not display clear signs within the site that were capable of being read and/or form a contract. There is no prominent signage at the entrance of the parking area. Signage is hidden by foliage. Other signs are raised high/low with small text which is difficult to read. The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver and the notices do not provide the 'adequate notice' of the parking charge which is mandatory under Schedule 4 of the POFA.
9) The Defendant believes that the use of single and double yellow lines and hatching within the BP is the continuation of the Highway code and overrides any signs that are not recognised within the Highway Code.
10) The Defendant believes that the strategic use of single and double yellow lines and hatching within the BP is deliberate entrapment otherwise extend the yellow markings to all areas where parking is not permitted.
11) The Defendant believes, Parking in what is effectively a 'no parking' arrangement would be a Trespass issue, for which only the landholder can take action (not some parking company) and only for nominal or actual damages, not some made-up £100 charge.
12) The Defendant denies that driver or keeper of the vehicle agreed to pay the PCN within 28 days of issue as it states on the claim form.
13). 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 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.
14) The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s);. 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.
15) 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.
16) 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 £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.
17) The Defendant also disputes that the Claimant has incurred £70 solicitor cost. The Particulars of Claim are incompetent in disclosing no cause of action.
18) The Claimant might argue that the Supreme Court’s decision is Parking Eye v. Beavis is applicable. The Defendant will argue that the present case meets none of the conditions that the Supreme Court stated were required for a parking notice to be exempt from the well-established principle that penalty charges cannot be recovered. The main difference is that the Supreme Court determined that, in a retail park, there was a public interest in ensuring a turnover of visitors that justified a disincentive to overstay. There is clearly no such interest in a third party attempting to impose conditions in a BP where there is no turnover of visitors and the defendant’s vehicle was not in pay-and-display car parking.
13) 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
0
Comments
-
What is the Issue Date on the Claim Form?
Did it come from the County Court Business Centre in Northampton, or from somewhere else?0 -
You can if you break the URL link - change http to hxxp, and/or put gaps in.Link to photos: update - not letting me post link in case I am a spammer
Defence looks good based on the sparse info we have!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 THREAD0 -
Hi, I've added link with xx inserted. Was looking for guidance around the double yellow lines which are used in the BP which can be seen in the pics provided by the Claimant. The vehicle is not parked on the yellow lines. thanks0
-
Your friend should enlist the help of his MP. They are very well aware of these scams an on 15th 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. tYou never know how far you can go until you go too far.0 -
Hi, Claim Form says 29th March (+/- a day) and came from County Court Business Centre.0
-
You say you have been deliberately vague about posts here!
You need to remove those links to one drive from your posts, and delete the photos from that hosting site
If you want to put images online for others to see then redact everything that identifies your friend
The ppcs monitor this forum and can use posts in your thread against your friend0 -
OK, I'll try again...Double_Dip wrote: »Hi, Claim Form says 29th March (+/- a day) and came from County Court Business Centre.What is the Issue Date on the Claim Form?0 -
Thanks for advice, links removed. I thought that pics needed to be shared so you give advice.0
-
Hi, may I ask why exact date is required as I didn't want PCC's searching for it.
Thanks0 -
Double_Dip wrote: »Hi, may I ask why exact date is required as I didn't want PCC's searching for it.
Thanks
It’s not that important to us as long as you know precisely the date by which the defence has to be submitted. KeithP will give you that precise date provided he has the exact date the claim was issued.
If you make an inadvertent error by submitting the defence late, you’re potentially lined up for a judgment in default against you and a possible credit-wrecking CCJ.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.#Private Parking Firms - Killing the High Street0
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