Preparation of Defence.

mukach72

draft #6

In The County Court
Case number: XXXXXXXX
Claimant: Britannia Parking Group Limited
T/A Britannia Parking

Defendant: XXXXXXX
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 alleged parking contraventions occurred between August 2018 and December 2018 respectively but the Defendant receive no notification until early March 2019. This is contrary to Schedule 4 paragraphs 8(5) or 9(5) of PoFA 2012 which state specific time limits for serving a Notice to Keeper. Non-compliance means the Defendant cannot be held to account for the alleged debt of the driver.

3. The Defendant did not receive any notice from Britannia Parking relating to these PCN’s whatsoever. The Defendant would suggest there should be solid evidence of this notices were sent i.e (recorded delivery, tracking details, proof of postage) to show they had been delivered to the Defendant’s current address which is xxxxxxxxxxxxxxxxxxxx.

4. The Defendant received no paperwork until early March, no proof was shown in the pre-trial Letter Before Claim stage and they failed to follow the oct 2017 pre-action protocols 2.1
(a) encourage early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute;
(b) enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure;
(c) encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue)

5. During the period of the alleged parking contraventions, two other persons had access to the vehicle in question but neither admitting to be driver. The Defendant has complied with his obligation under Paragraph 9(2)(b) of Schedule 4 of the Protection of Freedoms Act 2012 by telling the driver(s) that they are required to pay the parking charge which discharges the Defendant's liability for this claim.

6. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.


7. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and the driver of the vehicle. This indicates that the Claimant has failed to identify the driver and thus 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.

8. 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. 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.


10. 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.




11. The Defendant believes the costs on the claim are disproportionate and disingenuous.

11.1 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.

11.2 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.

11.3 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.

11.4 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.



11.5 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.

12. 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.

13. 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 Judgment 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 Claimant and one an IPC member, yet the Order was identical in striking out both claims without a hearing:
13.1 ’'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...''

14. 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.


15. 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.

16. 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.



I believe the facts stated in the defence are true,

Name: xxxxxxxxxxxxx


Signature:

Date:

Coupon-mad

I would just add:

One was a BPA member (this same serial Claimant: Britannia Parking) and one an IPC member, yet the Order was identical

mukach72

Is that not already included in paragraph 13. ?

KeithP

The suggestion is that you add the red words to para 13.

but not added in red of course.

mukach72

Have added the red words, now in black of course. Is the defence finally ready to submit?
Thanks for all the help thus far! ...M72

Coupon-mad

Yes it's good to go.

Don't disappear.

Winning defendants read other court threads here regularly during the process and prepare for the next paperwork & know what to do with it, from bargepole's COURT PROCEDURES thread, linked in the NEWBIES thread, so make sure you are well informed and know that defence is just the first bit!

mukach72

Great stuff, thank you!

mukach72

Hi forum,

I submitted my defence in time on 17/06/2019 and have heard absolutely nothing since! Have been checking MCOL daily but nothings changed! Is there anything else I should do or just wait it out?
Thanks in advance...M72

KeithP

The phone number of the CCBC is on your Claim Form, but I expect you'll be told that they are a few weeks behind.

Ring them and find out.

Also of course make sure the email in your 'sent' folder is safe.

mukach72

Hi forum,

Received a letter today from BW Legal stating that they intend to continue with the claim and have 'notified the Court of the same'!!! I kind of anticipated this anyway and have been waiting for some sort of reaction from Court but received nothing! What happens now?Do I just wait for a Directions Questionnaire (form N180) and take it from there?