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County Court Defence - Overstay
wizzybee
Posts: 71 Forumite
Hello everyone.
I would be really grateful if someone could have a look through the defence for a CC claim against my son.
A bit of background:
He is the registered keeper of a car that was parked at the Berkeley Precinct car park in Sheffield which is a Pay and Display managed by VCS. It has ANPR and you are supposed to get a ticket from machines where you have to enter your car registration. It is 1 hour free then £1 for up to 2 hours.
The driver was intending to stay for less than an hour but didn't realise you were still supposed to get a ticket but ended up staying for 86 minutes.
My son got a number of letters in the post asking for £100 fine. I told him to ignore them as I had been through a similar scenario at the same car park a couple of years ago before they had the registration ticket machines and nothing came of it. However, it seems that the advice has changed since then and you should respond to the letters, so now I feel guilty for letting it get this far!
We have responded to the MCOL and submitted an AOS on the 3rd of June so we have until the 17th to submit the defence (?)
I have read through the NEWBIE thread and everything else I can find and put together the following. I would be really grateful if anyone could let me have any comments.
IN THE COUNTY COURT
CLAIM No: xxxxx
BETWEEN:
VEHICLE CONTROL SERVICES (Claimant)
-and-
xxxxxx (Defendant)
________________________________________
DEFENCE STATEMENT
The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
1) 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.
1) The driver has not been evidenced on any occasion and there is no presumption in law that the keeper was the driver. The keeper is not obliged to name the driver to a private parking firm which was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
2) It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.
3) 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) It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties’ bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.
5) Further and in the alternative it is denied that the Claimant’s signage is capable of creating a legally binding contract.
6) Signange is present on the left hand side of the entrance, away from the driver, and therefore cannot be easily read by the driver of a passing vehicle. On closer inspection this sign states ’Refer to the Terms & Conditions signs located at the Parking Meter(s)’. At the parking meters signs are located so that information is often obscured by other parked cars and is difficult to read. These signs state ‘By entering this private land you agree to pay a Parking Charge if you fail to comply with the terms and conditions….’ Therefore, the driver is deemed to have agreed to the terms and conditions by having entered the car park before knowing what those terms and conditions are. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.
8) It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of staying over free time, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.
9) All Pay and Display parking facilities owned by Sheffield City Council the charges for overstay are initially £25 compared to the Claimaint’s £100. As the charge is 400% greater than that which a motorist could expect to pay for overstaying in a municipal car park there is a clear imbalance.
10) 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.
11) 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.
12) 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
I would be really grateful if someone could have a look through the defence for a CC claim against my son.
A bit of background:
He is the registered keeper of a car that was parked at the Berkeley Precinct car park in Sheffield which is a Pay and Display managed by VCS. It has ANPR and you are supposed to get a ticket from machines where you have to enter your car registration. It is 1 hour free then £1 for up to 2 hours.
The driver was intending to stay for less than an hour but didn't realise you were still supposed to get a ticket but ended up staying for 86 minutes.
My son got a number of letters in the post asking for £100 fine. I told him to ignore them as I had been through a similar scenario at the same car park a couple of years ago before they had the registration ticket machines and nothing came of it. However, it seems that the advice has changed since then and you should respond to the letters, so now I feel guilty for letting it get this far!
We have responded to the MCOL and submitted an AOS on the 3rd of June so we have until the 17th to submit the defence (?)
I have read through the NEWBIE thread and everything else I can find and put together the following. I would be really grateful if anyone could let me have any comments.
IN THE COUNTY COURT
CLAIM No: xxxxx
BETWEEN:
VEHICLE CONTROL SERVICES (Claimant)
-and-
xxxxxx (Defendant)
________________________________________
DEFENCE STATEMENT
The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
1) 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.
1) The driver has not been evidenced on any occasion and there is no presumption in law that the keeper was the driver. The keeper is not obliged to name the driver to a private parking firm which was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
2) It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.
3) 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) It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties’ bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.
5) Further and in the alternative it is denied that the Claimant’s signage is capable of creating a legally binding contract.
6) Signange is present on the left hand side of the entrance, away from the driver, and therefore cannot be easily read by the driver of a passing vehicle. On closer inspection this sign states ’Refer to the Terms & Conditions signs located at the Parking Meter(s)’. At the parking meters signs are located so that information is often obscured by other parked cars and is difficult to read. These signs state ‘By entering this private land you agree to pay a Parking Charge if you fail to comply with the terms and conditions….’ Therefore, the driver is deemed to have agreed to the terms and conditions by having entered the car park before knowing what those terms and conditions are. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.
8) It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of staying over free time, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.
9) All Pay and Display parking facilities owned by Sheffield City Council the charges for overstay are initially £25 compared to the Claimaint’s £100. As the charge is 400% greater than that which a motorist could expect to pay for overstaying in a municipal car park there is a clear imbalance.
10) 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.
11) 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.
12) 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 your Claim Form?0
-
Throughout here you are advised never to reveal who was driving
You need to edit your post to remove details of who was driving (you are wanting to use s non pofa compliance defence)
The ppcs monitor this forum and can use posts in your thread against you0 -
Oh! Thanks for that...
Will edit now0 -
Sorry, was at work and didn't have the information to hand.
The issue date is 28th May 20190 -
With a Claim Issue Date of 28th May, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 1st July 2019 to file your Defence.The issue date is 28th May 2019.
Much more time than you thought. The filing date is based on the Issue Date, not the date of doing the AoS.
That's three weeks away. Loads of time to produce a perfect Defence and it is good to see that you are not leaving it to the last minute.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
- Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
0 - Sign it and date it.
-
You seem to be using an old Defence. The Unfair Terms in Consumer Contract Regulations 1999 was replaced by the Consumer Rights Act 2015, and that argument about the £100 is no longer valid since ParkingEye v Beavis.
The NEWBIES page at POst #2 has a concise defence about unclear signs written by Bargepole (legally qualified).0 -
Thanks Jomot.
Reading through all the various threads it is a bit confusing about what is the latest bit of relevant legislation.0 -
Nine times out of ten these tickets are scams so complain to your MP.
Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. 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, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but 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.You never know how far you can go until you go too far.0 -
Jomot pointed you to the most recent defences written by Bargepole here: -A defence by bargepole, showing that a defence about unclear signs should be written concisely:
https://forums.moneysavingexpert.com/showpost.php?p=74674865&postcount=24
and even more concisely here, about poorly marked lines and unclear signs about where to park:
https://forums.moneysavingexpert.com/discussion/comment/74833078#Comment_748330780
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