VCS Defence Advice

Coupon-mad

The POFA uses the word 'period' which I take to mean a from/to time whereas the NTK just specifies a single time which presumably is the time of issue.

We agree, that is worth arguing, but that hasn't told me that you searched the forum and sussed the other flaw:

the well-known error in the 28 day period we keep having to point out to newbies who miss it.

There's then the issue the photo of the sign on entry to the car park is from a completely different month and time of day. Should I mention this also or just use it in my evidence?

Mention it at WS & evidence stage.

Brooklyn_Bridge

Thanks again for the reply. Draft defence version 2 below with changes in red.

Further thoughts about section 4.1. The vehicle is claimed to fail to display a permit but this section of POFA talks about failure to pay parking charges. Should it stay?

IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

xxxxxxxxxxxxxxxxxxxxxxxxxx (Claimant)

-and-

xxxxxxxxxxxxxxxxxxxxxxxxxxxx (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 in a marked bay allocated to Company XXXX at XXXX but was unable to display a valid permit due to none being available at the business.

2.1 The driver was entitled to a permit and tried to obtain one but due to circumstances out of their control was unable to do so. The business have publicly admitted they had no permits available around that time and given the time of day no members of staff were present to issue one or report the problem to. As such the driver attempted to comply with the terms and conditions but was unable to do so due to circumstances out of their control and can be considered frustration of contract.

2.2. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a plastic bag impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

2.3. Accordingly, it is denied that any contravention or breach of clearly signed terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

2.4. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £60 'Parking Charge Notice ('PCN')' or £100 if not paid within 28 days from the PCN notice.

3. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. 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.

4. 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.

4.1 The POFA, at section POFA 8.2b states that the Notice To Keeper must inform the driver is required to pay charges for the specified period but it fails to identify both the driver or the period which the charge covers and only states a single date and time.

5. 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. The signage at the entrance to the car park is unlit and given the time of day impossible to read.

5.1 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.

5.2. Even if the Court is minded to consider that the car did pass that sign, the terms of the sparse signage make no offer available; there is no licence to park.

5.3. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that 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.

5.4. County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.

6. 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 pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

6.1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

6.2. 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 issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

7. The POFA, 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.

8. 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.

Name
Date
Signature

Coupon-mad

Why did you change your correct heading to the wrong 'DEFENCE STATEMENT'?

Brooklyn_Bridge

Copied a header from another defence which everyone said was ok.

Coupon-mad

We tightened up a couple of years back. The correct heading is just DEFENCE.

Brooklyn_Bridge

Thanks. I've edited it to the correct heading.

Any further feedback before I follow KeithP's guidance for submission on Monday?

Coupon-mad

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to Company XXXX at XXXX but the driver was unable to display a valid permit due to none being available at the business.

I'd say you need to add 'the driver' above, to avoid the implication that the D was the driver.

Now read this, which you may have already seen (his Court report):

https://forums.moneysavingexpert.com/discussion/comment/75879770#Comment_75879770

...as you had a red card 'not a CN' then an early NTK.

You want to add this instead of #7 and #8:

7. At Derby Combined Court on 31.5.19, in claim number E1QZ7X7C, District Judge Griffiths held that the Defendant's point about the POFA was valid, and that ''the NTK coming 8 days after the window sticker was premature'' and having heard from the Defendant, he was persuaded that ''the window sticker clearly was a Notice to Driver''. The DJ stated that even if you write ''this is not a PCN'' on a window sticker or its envelope, no amount of words can legally stop it from still being a Notice to Driver (windscreen PCN) and that the resulting premature Notice to Keeper was null and void because 28 days had not been given, and so the registered keeper could not be held liable.

Then this ending instead of #8 and the end (your numbers will be higher than 8):

https://forums.moneysavingexpert.com/discussion/comment/75922229#Comment_75922229

We need to start routinely attacking the added costs, so that even the odd person who loses, understands how to argue about the unlawful added fake costs and doesn't get clobbered with them.

Brooklyn_Bridge

Thanks again and the suggested changes included again coloured red.

Any further feedback?

---

IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

xxxxxxxxxxxxxxxxxxxxxxxxxx (Claimant)

-and-

xxxxxxxxxxxxxxxxxxxxxxxxxxxx (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 in a marked bay allocated to Company XXXX at XXXX but the driver was unable to display a valid permit due to none being available at the business.

2.1 The driver was entitled to a permit and tried to obtain one but due to circumstances out of their control was unable to do so. The business have publicly admitted they had no permits available around that time and given the time of day no members of staff were present to issue one or report the problem to. As such the driver attempted to comply with the terms and conditions but was unable to do so due to circumstances out of their control and can be considered frustration of contract.

2.2. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a plastic bag impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

2.3. Accordingly, it is denied that any contravention or breach of clearly signed terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

2.4. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £60 'Parking Charge Notice ('PCN')' or £100 if not paid within 28 days from the PCN notice.

3. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. 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.

4. 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.

4.1 The POFA, at section POFA 8.2b states that the Notice To Keeper must inform the driver is required to pay charges for the specified period but it fails to identify both the driver or the period which the charge covers and only states a single date and time.

5. 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. The signage at the entrance to the car park is unlit and given the time of day impossible to read.

5.1 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.

5.2. Even if the Court is minded to consider that the car did pass that sign, the terms of the sparse signage make no offer available; there is no licence to park.

5.3. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that 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.

5.4. County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.

6. 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 pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

6.1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

6.2. 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 issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

7. At Derby Combined Court on 31.5.19, in claim number E1QZ7X7C, a District Judge held that the Defendant's point about the POFA was valid, and that ''the NTK coming 8 days after the window sticker was premature'' and having heard from the Defendant, he was persuaded that ''the window sticker clearly was a Notice to Driver''. The DJ stated that even if you write ''this is not a PCN'' on a window sticker or its envelope, no amount of words can legally stop it from still being a Notice to Driver (windscreen PCN) and that the resulting premature Notice to Keeper was null and void because 28 days had not been given, and so the registered keeper could not be held liable.

8. Costs on the claim - disproportionate and disingenuous
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.

8.1 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. 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.

8.2 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. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

8.3 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.

8.4 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.

8.5 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.

8.6 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 an earlier General Judgement or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia) and one an IPC member serial Claimant (UKCPM) yet the Order was identical in striking out both claims without a hearing:
''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...''

8.6 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 mendacious in terms of the added costs alleged.

9.0 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.

10.0 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, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.

Statement of Truth:

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


Name

Signature


Date

Coupon-mad

Looks good to me.

Brooklyn_Bridge

Thanks for everyone's help, support and patience. Defence submitted and DQ request received today from the CCBC.