Assistance in filing defence at court given PoC

Coupon-mad

anonymous.matey14 wrote: »

Unfortunately the incident took place 2 and half years ago and I didnt take photos on the day.

Another issue is that the restaurant no longer has rights to use that space as parking, but I do have a correspondence from an employee stating it was available to customers at time of offence.

I will pay a visit sometime this week and take some snaps, but Im pretty certain the only signage i'll find is the one provided in the PoC (link provided).

Ah OK, but bear in mind:

- that image is not proof of any signs in situ on the material date

- they will have to do better than that in evidence for the hearing

- the wording shown is forbidding, trying to create a 'restricted zone' to ban parking on double yellows and restrict layby parking as a licence offered to permit-displaying drivers only.

So a non permit displaying car driver can only be a trespasser, and this can't be dressed up as if you consented to pay £100 to park, under a clearly worded agreed contract. There is nothing about that sign that tells you (even if you'd seen it) that you were entering into a contract and you were not offered anything of value that you didn't already have a right to - the parking space was offered by the restaurant to you as a patron, and they only supplied the permit late; didn't offer it the minute you walked in.

You have to distinguish your case from the ParkingEye Ltd v Beavis case, where in Para 199 the Supreme Court Judges said:

''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

So you would be arguing this case is completely different, there are no 'legitimate interests' in penalising patrons of the restaurant who only handed over a permit when asked about it (too late) and the signs make no offer to all-comers. Just a threat of a penalty to punish non-compliance, effectively trying to dress up unknowing 'trespass' as if it was a matter of contract.

Unlike the sign in Beavis, which was a licence offered to all and they had the valuable consideration to offer, of 2 hours free, as the quid pro quo for the risk of a charge for overstayers. Also in Beavis he was held to have seen & understood the signs which were said to be brief & prominent, and plentiful - a clear & obvious contract, it was held.

Nothing like the signs and facts of this case, you need to be able to show!

And you need to understand what we mean by forbidding signs which prohibit parking to non permit holders. Read these cases from the Parking Prankster's case law pages:

PCM v Bull

Pace v Lengyel

...and use those court transcripts in your own evidence along with your correspondence with the restaurant and any damning photos you can now get, if the signs haven't changed.

Get pics of them obscured by bushes, that would be perfect!

anonymous.matey14

Ok so just over a week away from DEFENSE deadline. This is my initial draft, would appreciate comments. I did also pay a visit to the site and took some photographs which can be found below...

dropbox.com/s/e6bd07s6ev6ekrj/IMG_2336.jpg?dl=0
dropbox.com/s/w7clrzw1cmuptq6/IMG_2335.jpg?dl=0
dropbox.com/s/mb0wa9g7uoor40w/IMG_2334.jpg?dl=0

There is no signage along any of the lay-by or along that side of the road at all in fact.

DEFENSE

I am [NAME] of [ADDRESS], [POSTCODE], defendant in this matter.

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 never been provided. The claimant has provided only stock photographs of signage and therefore not proof of any signs in situ on the material date.

1. The facts are that the vehicle, registration XXXXX, of which the Defendant was the registered keeper, was parked on the material date in a marked bay allocated to Company XXXX at XXXX Business Park, and had a valid permit to be parked in that bay.

2. The defendant claims there was no breach as the driver only had access to a temporary permit, requiring collection from inside the restaurant. The claimant should be aware of this and should allow a period of grace to cover the necessity and expectation that visiting drivers will have to enter the premises to fetch a permit. Such drivers do not arrive with a permit in their hands, and this activity can take several minutes after arrival given the busy nature of the premises.

(i) There was no breach of the terms of parking as the permit was collected and displayed as soon as it was provided by the restaurant.

3. The signage displayed only makes an 'offer of parking' to permit holders, and therefore only permit holders can be potentially bound by the contractual terms conveyed (and only if the terms were clear and prominent as adequate notice of the charge, which is denied).

(i) The signage on this site is inadequate to form a contract. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a vehicle parking in the area covered by the signage, 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.

4. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state parking on the lat-bys is restricted to vehicles displaying a valid permit giving no indication of whom the spaces are allocated to.

5. Notwithstanding the provisions of the POFA and/or the existing easements, rights of way and the permit agreement already concluded, it is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event.
(i) The claimant’s sign makes an offer of parking to permit holders only and not to the general public and is therefore a forbidding sign.

6. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free.

7. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) where the ‘charge of the order of £85’ was an understandable ingredient of a scheme serving legitimate interests. However, there is no ‘legitimate interest’ in penalising patrons to the restaurant who were only handed over a permit when asked about it (too late) and the signs make no offer to all-comers.

8. 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.

(i) 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.

9. It is denied that any "parking charges / damages and indemnity costs" (whatever they might be) as stated on the Particulars of Claim are owed and any debt is denied in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

10. It is denied that any 'parking charges or indemnity costs' (whatever they might be) are owed and any debt is denied in its entirety.

(i) This is a completely unsubstantiated and inflated three-figure sum, vaguely and incoherently adduced by the claimant's solicitors. Nor are any clear times/dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description 'parking charges' and 'indemnity costs'. 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 are not clear and concise, so I have had to cover all eventualities in defending a 'cut & paste' claim. This has caused significant distress and has denied me a fair chance to defend this claim in an informed way.

11. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs and they are put to strict proof that they have actually incurred and can lawfully add any extra sums and that those sums formed part of the permit/parking contract formed with the permit holder in the first instance.

12. 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.

13. It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.

14. 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.

15. 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 Statement are true.

Coupon-mad

Ok so just over a week away from DEFENSE deadline.

Defence has no letter 'S' in it in this country!

You have a typo in there, I saw ''lat-bys''.

#9 and #10 repeat the same words so remove one and amend the numbering below it.

Maybe add here:

3. The signage displayed only makes an 'offer of parking' to permit holders, and therefore only permit holders can be potentially bound by the contractual terms conveyed (and only if the terms were clear and prominent as adequate notice of the charge, which is denied). The nearest sign is not anywhere near the lay-by but makes no mention of having to display a permit within a certain period of time and it is argued that a permitted patron of the restaurant is an authorised visitor from the outset and cannot be fairly subjected to an unknown 'immediate ticketing' unfair term in the minutes before the permit has been handed over.

DEFINITELY to be argued that these signs prohibit parking, rather than allowing it under contractual agreement with any consideration on offer:

https://www.dropbox.com/s/e6bd07s6ev6ekrj/IMG_2336.jpg?dl=0

https://www.dropbox.com/s/mb0wa9g7uoor40w/IMG_2334.jpg?dl=0

https://www.dropbox.com/s/w7clrzw1cmuptq6/IMG_2335.jpg?dl=0

anonymous.matey14

Ok thank you so much for your assistance.

One last thing I want to clarify and I've not been able to get clarity from other threads.

1) I know I can claim costs for certain expenses. (time, travel, parking) - This is done using a schedule of costs submitted before hearing.

2) I also know I can be reimbursed for 'set aside' hearing dependant on my success in defence.
The Judge did advise me of this however does this need to be explicitly stated in my defence?

3) I have also seen individuals be compensated when successful as PPC had no right to request data from DVLA.
As I understand this needs to be stated as a counter claim in my defence?

I would be grateful if someone could advise regarding 2 & 3 as I don't want to miss the chance to reclaim some of these costs.

Coupon-mad

You can't now put in a counter claim, so forget that.

The Judge did advise me of this however does this need to be explicitly stated in my defence?

Just add the £255 in on your costs schedule.

anonymous.matey14

Ok I am now ready to file my defence at court, given work restrictions I would prefer to do this by post.

HOWEVER, I understand that in the usual process the Defence would be sent to Northampton (County Court Business Centre).

However as my case is following on from a set aside judgement I just wanted to clarify. Following the set aside Judgment a general form of Judgment/Order was sent to me from the County Court at Reading. The PoC were also 'In the County Court at Reading' hence I am assuming my defence should be sent to The County Court at Reading? Or should I send to Northampton Or should I do both just to be safe?

Thanks

Coupon-mad

Only to Reading.

anonymous.matey14

Dear all, court hearing will be held this coming Friday (11/10/2019). I did submit my witness statement and evidence to court prior to the 14 day deadline. Gladstones on the other hand emailed me their witness statement (with no evidence attached) last Friday (7 days prior to the hearing). I have not yet responded to them however this is against court instructions which clearly stated the witness statement and evidence were to be filed 'no later than 14 days prior to the hearing'. Any comments regarding this?

Thanks once again.

KeithP

Mention it right at the beginning of the hearing.
Mentioning such things as 'you haven't been able to spend as much time analysing it as you would've liked.

But not too heavy - you don't want the Judge to adjourn the hearing to a later date.


Have a look at this short video:

www.youtube.com/watch?v=n93eoaxhzpU

anonymous.matey14

Dear ALL,

Great News and great result.

The claim was dismissed and I was able to reclaim my £255 court fee for the set aside hearing plus unpaid leave.

However some feedback which may be beneficial in the future.

I was not able to reclaim other costs as the judge ruled the claim was valid and the PPC were in their rights to pursue it. The signage WAS NOT forbidding as there was an offer of parking to those displaying valid parking permits and hence THERE WAS AN OFFER TO PARK.

The signage was clear and adequate and any visitor should have been able to establish a permit would be necessary. HOWEVER more specifically to my case, there seemed to be an unclear arrangement between the landowners and restaurant with regards to the process for obtaining a valid parking permit.

Custom could only be established once an order was placed and hence there was an unavoidable delay in retrieving a parking permit in the given arrangement. The Defendant demonstrated due diligence in querying regarding a permit once the order was placed and displayed a permit shortly after being given one, albeit too late. The judge believed the Defendant's statement to be true and honest and hence ruled the defendant was compliant in so far as they could be given the awkward arrangement.

THANK YOU ALL SO MUCH FOR YOUR HELP! Unfortunately, although I was successful, my experience has led me to feel in the future if the PPC does not accept your initial appeal it is far less stress and effort to just pay the penalty within the 14 day period. This is unfortunate as it does mean these companies can just bully individuals into paying penalties but it is a lot of effort and stress at times dealing with court proceedings.