Court Action for UK CPM Parking Ticket

Coupon-mad

Good point, specifically referring to the court's order.

Penguin_123

Coupon-mad wrote: »

No consideration = no contract (nothing of value) offered, does that make sense?

Yes makes sense, just takes a while to register. I have made amendments per your comments, thanks

Penguin_123

KeithP wrote: »

But the point that nosferatu1001 was making about 'consideration' is that the Claimant has failed to comply with para 2(c) of the Court Order: "If a contract is alleged, what was the consideration provided by the claimant and what was the breach of contract".

Perhaps that failing should be mentioned somewhere in your Defence - maybe after para 5.

Maybe something along the lines of:

It should be noted that the Claimant's Particulars of Claim has failed to identify the consideration offered, as required by para 2(c) of the Court Order dated dd/mm/2019.

Ahh okay got you, added this too. Thanks

Penguin_123

Any guidance on how to tailor these two points please, as I have now received signed particulars of claim from a solicitor?

14. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

15. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

I will hopefully have my final defence once I have amended this. Thats if I have done it right this time

Thanks for your help.

Penguin_123

This is my amended defence before I amend the two points in my message above, now points 16&17, which I need a bit of guidance on. If you could give me any final pointers before I send this tomorrow that would be much appreciated. Thanks.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

UK CAR PARK MANAGEMENT LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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 XXXX, of which the Defendant is the registered keeper, was parked on the material date on the pavement at XXXX Business Park. The vehicle was insured for 2 drivers and the Defendant was not the driver on the material date.

3. 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 that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.
4. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, 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.
5.. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is my position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

6. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive, it states 'no parking outside a marked bay', therefore there was no offer allowing parking, only banning parking where the car was parked. Unlike in the Parking Eye vs Beavis case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.


7. This is clear from several cases. One example, PCM-UK v Bull (2016) B4GF26K6, where residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company. Another example, from the Central London County Court, Pace Recovery & Storage Limited v Mr F (15/08/2019) F6G5322Z, where the Defendant prevailed and the Judge's reasoning was twofold: ''firstly, lack of signage and secondly the wording of the sign was such that it does not lead one to conclude that this is a contract [...]...the wording was: “This is a no parking area. Warning, private land, 24 hour enforcement zone”. The inference to be drawn by the reasonable motorist looking at that would not be that a contract may be formed if you pay £100...''
8. It should be noted that the Claimant's Particulars of Claim has failed to identify the consideration offered, as required by para 2(c) of the Court Order dated dd/mm/2019.
9. 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.
10. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

11. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny.

12. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

13. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

14. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.

15. Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:

http://www.bailii.org/uk/cases/UKSC/2015/67.html


at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

at para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.''

at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''


16. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

17. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

18. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

19. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

20. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

21. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

22. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

23. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.

Statement of Truth:

I believe the facts contained in this Defence are true.

Name
Signature
Date

KeithP

Instead of just lifting my suggested wording, you have to read it first!!

Why have you left dd/mm/2019 in there?

Only you know the date of that Order.

You are the one who si supposed to be writing this.

Surely you can adjust the wording of those two problem paragraphs of yours yourself?

Penguin_123

Haha. I have read your addition and I do understand it, thank you. I have added the dates in my actual version, just didn't see the point in putting it in the draft on here.

With the two paragraphs, I was just seeking clarification of the relevance of those points when I take out the solicitor involvement. Maybe this would be suitable:

16. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims mostly handled by an admin team or paralegals. The Defendant avers that it is likely that little time and expense has been incurred handling this case due to being part of a batch of cut & paste claims.

i think I will leave the other (17) as it is.

Thanks

Le_Kirk

You would be advised to take out the hyperlink just after paragraph 15 and just put the heading to which the hyperlink takes you. Are you expecting the judge/admin team to follow a link. Also, EVERY paragraph requires a number so that you can refer to it in court for example "I refer to paragraph 16 of my defence" rather than "I refer to the bit in between paragraph 15 & 16 starting ...."

Penguin_123

Hi All

Wondered if anybody was around for some last minute advice as my witness is to be in today at 4pm and I haven't finished it and was wondering whether I will be okay if I submit it late and at least get some feedback on it and get some things I am unsure of clarified.

I have pulled together my witness statement, however I have some questions I was hoping somebody would assist with. I have done my best to look over the forum for hours and hours trying to work out everything myself but I have been unable to do this is the time frame and I am now in panic mode to get this done.

1. Am I able to submit this via email to the court, or does this need to be printed and delivered to them? Maybe I could send a draft by email today if I really have to then post all the documents out.
2. What happens if I submit the WS late to the claimant and the court?
3. Why does the WS have to be in so early for a court date of May? I read it was around 14 days before. The Notice of allocation states that each party must deliver to the other party and the court office copies of all documents on which that party intends to rely on by 4pm 18/12/19.

I will post the queries on my WS now too so based on any feedback if I am okay submitting late I can get some feedback.

Thanks in advance for any help provided.

nosferatu1001

Youve had 2 months or so to get this done, and you only come back on the final day?

I woudl suggest you get it written and submitted today. Being late doesnt often endear you to the claimant

1) You have to print and hand to the court, as thenewbies thread told you months ago
2) The claimant coudl ask for you to be sanctioned, which can involve ythe WS being struck out. With no WS you have no evidence yand your defence can easily fail.
3) Because the court decided so. Not your chouice. COMMONLY it is 14 days before.