Letter Before Claim Received Unsure If Should Defend

Chao123

Hi All,

I received a parking ticket while visiting a friend in March 2018. I had parked in a visitor spot and thought i'd displayed the visitor pass but it had fallen down next to the gear stick when i popped out to the shops during the day. I appealed to IAS as having not read these forums I thought the were a independent and fair ruling body and my case was a simple misunderstanding. I took lots of pictures of my car the visitor pass and the position to show this was the case. They rejected my claim on the grounds the signage says "must be displayed in the window". This annoyed me a lot as i thought it was highly unfair especially considering the signage on entry had been blown down, a point i made, and the PPC was only brought in fairly recently. So i read everything around the issue on the forums etc and decided to ignore further correspondence and thought it wouldn't go further as the company UK CPM have since been removed due to pressure from the residents.

I have now received a letter before claim and am not sure if i should try to fight it. My son was born a few days ago and I'm due to start a new job early next month so I don't feel i have the time which it seems these things take. Also am i not likely to lose considering the signage said "must be displayed in the window". I was furious at the time but is it not better to just pay the £160? How long do court proceedings usually take? Solicitor is Gladstones.

Thanks in advance for any assistance

Coupon-mad

Why not just search UKCPM Gladstones, or perhaps UKCPM LBC, and you will see so much more and learn quicker what to do, than on your own thread. Hopefully as you got no replies for 48 hours that's what you did.

And we hope you read the NEWBIES thread post #2 all about LBC stage.

My son was born a few days ago and I'm due to start a new job

Congrats!

Also am i not likely to lose considering the signage said "must be displayed in the window".

No, search the forum for fluttering ticket. A common defence that wins.

I was furious at the time but is it not better to just pay the £160?

No, because you will pay nothing if you are one of the 99% here who win in their local courts.

You have a case. You just had no chance at the kangaroo court of IAS.

How long do court proceedings usually take?

You can read any winning cases to see how long their threads span (several months).

Search the forum for ANOTHER ONE BITES THE DUST to read all the wins, hundreds and hundreds of results, which will give you an idea that your local hearing will be in the late Autumn/Winter and quite manageable if you set your mind to beat this scam.

No risk of high fees/costs (it's £100 not £160 so they already lied but you;d have to read threads to know how to counter the lie), no CCJ risk either as long as court papers and deadlines are not ignored. Even around a new baby, this can be done and you will see from your 'fluttering ticket' results of your search that you can pretty much copy a similar defence when the time comes.

Chao123

Hi Coupon, thank you for your advice especially pointing me in the direction of "fluttering tickets". I wrote a strongly worded letter to them responding to their Letter before Claim and got a fairly generic response. I then heard nothing for four months and thought it was over until i received a claim form from the county court earlier this month.

The issue date of the claim form was 7th October and I have completed the Acknowledgement of Service within the deadline of 25th. I did request an SAR back when I responded to their LBC but heard nothing back.

I understand you are all busy (consider me suitably chastised after my last post) so just wanted to drop an update. I will do extra research this week and post my draft defence on this thread.

The_Deep

[FONT=Times New Roman, serif]Nine times out of ten of these tickets are scams so consider complaining to your MP, it can cause the scammer extra work.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, 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.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT]

Le_Kirk

If you submitted a SAR and provided evidence it was you, the recipient of the PCN, by sending a copy of your V5C or the original PCN and they have failed to respond, you can report them (on-line) to the ICO. If you are feeling very benevolent you can try another e-mail to the DPO of UK CPM and warn them that they have failed in their duty to reply within 30 days, therefore they have a further (N*) days to supply all you requested or you will report them to the ICO.

*Insert number of days that equate to how sympathetic you feel.

KeithP

Chao123 wrote: »

The issue date of the claim form was 7th October and I have completed the Acknowledgement of Service within the deadline of 25th.

With a Claim Issue Date of 7th October, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 11th November 2019 to file your Defence.

That's nearly three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. 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.

Chao123

Hi guys,

So reading through previous cases and defences on here ive prepared the following defence.

Could you please read over and give feedback on anything irrelevant or i need to include which i havent?
I still have until 11th but wanted to get this sent off as soon as possible.

IN THE COUNTY COURT
CLAIM No: XXXXXXX
BETWEEN:
UK Car Park Management Ltd (Claimant)
-and-
XXXX (Defendant)

1.
I am the defendant xxx formerly XXX DOB xxx residing at XXX
2.
The Defendant denies the occurrence of a contravention on the material date and furthermore disputes the fact an outstanding liability is owed to the Claimant.
3.
The facts are the Defendant was the driver (not registered keeper) of vehicle registration number XXXX on the material date and was parked in a marked bay for which he had a valid permit during the time of the alleged contravention.
3.1.
Photographic evidence of the valid permit was provided to the Claimant however the claimant judged the positioning of the permit to be insufficient to warrant the withdrawal of the parking charge.
4.
The claimant indicates in the Particulars of Claim the basis of the claim is being “parked in a breach of the terms of parking stipulated on the signage (the ‘Contract’)” therefore the signage is a key point for the claim.
4.1
The Defendant has photographic proof the signage was damaged and not positioned in accordance with the Claimant’s site map provided to the defendant. This calls into question the sincerity of the correspondence from the Claimant to the Defendant.
4.2
The positioning of the signage at the time of the contravention means it is not reasonable for drivers to be expected to see the signs and hence agree to the contract following the terms set out therein.

Primary defence – Defendant had parking permission indicated by valid permit and did not breach contract.

5.
Having said this the Defendant admits that a contract was entered into but denies that the contract was breached or that the Claimant has suffered any loss; alternatively, if the Defendant did breach its terms, such breach was de minimis and caused the Claimant no loss.
6.
The contract was frustrated by the unfit for purpose windscreen permit provided by the Claimant, with no sticky back to allow the means to affix to the windscreen. The car park in question has no signs or terms requiring the use of adhesives to affix the permit to the window, the term to display a ticket ‘in the front windscreen’ does not require the use of adhesive to affix the ticket.
7.
The term, “A valid UK CPM permit must be clearly displayed in the front windscreen at all times” in particular the meaning of “in the front windscreen” is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt. A valid permit was displayed in front of the vehicle’s gearstick which is in front of the windscreen and clearly visible from outside the car as shown in the Defendant’s photographic evidence. If the Claimant wanted to impose a specific position in front of the windscreen then they should have drafted clear terms to that effect. Fluttering ticket cases have been ruled by PATAS adjudicators in Council PCN adjudications as requiring specific terms or there is no contravention. A term stating where in the front windscreen such as “on the dashboard” should have been included. The Defendant invites the Court to find that it is not transparent as to exact positioning in front of the windscreen required and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.
8.
Notwithstanding the above, The Defendant displayed a valid permit on the dashboard so all details could be clearly seen. The permit was, to the full knowledge of the Defendant at the time, placed in a clear position when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket moved to the gearstick or why, but made all reasonable endeavours, and complied by conduct.
8.1
The Defendant cannot be responsible for the possibility that:
a) A gust of wind may have later moved the permit from sight, despite the windows & doors being locked.
b) The employee of the Claimant may have caused the ticket to move from sight, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended.
c) A passer-by may have leaned on the car, when squeezing between the small bays to get to their own vehicle.

8.2
None of the above scenarios are within a driver's control (the Defendant was by that time, absent from the location) and it is evident that someone else – or a factor outside anyone's control – was to blame. This appears to have been a case of casus fortuitus "chance occurrence, unavoidable accident", which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract frustrated.
8.3
Even in the case that the Defendant’s own actions unknowingly caused the permit to move for example upon closing the car door the positioning of the permit shown in the photographs and the ambiguity of the “contract” indicate it is unreasonable to impose a £100 charge.
8.4
The Defendant would also like to call attention to the time of the alleged contravention of 23:17 on a public holiday. The timing means it would be harder to see the Defendants permit on a photograph even if it is clearly visible by the naked eye.
Claimant is seeking a penalty and inflated costs
9.
The Claimant seeks £160 which is an extravagant and unconscionable penalty and therefore unenforceable particularly because the Defendant has shown a valid permit (which the Claimant does not dispute as per their own correspondence) and the Claimant has suffered no loss and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.
9.1
£60 of the £160 “parking charge” (for which liability is denied) the Claimant has untruthfully presented as “contractual costs pursuant to the Contract” which makes no sense as the contract has earlier been stipulated as the parking terms and there is no mention of an additional £60. This amounts to double charging, which the PoFA 2012 Schedule 4 specifically disallows. Any term allowing for the Claimant to pursue such additional charges must be void for uncertainty. In any event, such charges must be covered by the addition of the discounted element of the charge after a driver has failed to pay within 14 days (£40).

9.3
There is no possible commercial justification for the Claimant to found an action based on such a trivial error. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated that in that case there was a commercial justification as it was free car park and the Claimant needed to prevent overstays of the free 2 hour stay. In this case the car park is a private residential car park where revenue is earned from the contract with the landowner not the issuing of tickets.

9.4
The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid and that due to the sparse particulars the £25 claimed for filing the claim has not been incurred either. This appears to be an attempt at double recovery as a way to inflate the value of the claim. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.
9.5
The Defendant denies that the Claimant is entitled to any interest whatsoever.
Locus standi
10.
The Claimant has failed to establish its legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.
10.1
The Defendant has been informed the Claimant’s contract to enforce parking has been cancelled due to abuses of the residents and their guests. The Defendant would like to call on the court to instruct the Claimant to provide evidence it has the legal right to pursue this case after their contract with the landholder was revoked.
11.
The Defendant would also like to call into question the sincerity of the Claimant as their correspondence clearly says “Your details were provided as the registered keeper of XXXXXX when a request was made to the DVLA”. However as stated above the Defendant is not the registered keeper of the vehicle he is simply a named driver.
12.
The Defendant invites the court to strike out the claim for the above grounds.

I believe the facts stated in this defence are true.

Name - date
Signature

Coupon-mad

Needs a heading 'DEFENCE'.

Remove this as you don't put an address in a defence (it's already stated in the claim form, after all):

residing at XXX

Add a denial to this:

4.
The Claimant indicates in the Particulars of Claim that the basis of the claim is being ''parked in a breach of the terms of parking stipulated on the signage (the 'Contract')''. This is denied, therefore the signage is a key point for the claim.

You can't say they haven't incurred a court fee, as clearly they HAVE!

9.4
The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid. [STRIKE]and that due to the sparse particulars the £25 claimed for filing the claim has not been incurred either. [/STRIKE]This appears to be an attempt at double recovery as a way to inflate the value of the claim. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.

And you can't say they can't claim any interest either, as the system allows it:

[STRIKE]9.5
The Defendant denies that the Claimant is entitled to any interest whatsoever.[/STRIKE]

And I suggest an addition here:

10.1
The Defendant has been informed the Claimant's landowner/managing agent contract to enforce parking has been cancelled due to abuses of the legitimate rights and interests of the residents and their guests. The Defendant requires [STRIKE]would like to call on the court to instruct[/STRIKE] the Claimant to provide evidence it has the legal right to pursue this case after their contract with the landholder was revoked.

10.2. Even if a cancelled landowner contract can potentially still allow a later claim, it is averred that this is one of several 'revenge claims' now targeting residents in order to claw back the last monies that can be squeezed from this location. This is unconscionable, lacks any deterrent value and fails to meet the high bar set in the Beavis case for an overriding 'legitimate interest' which overcame the penalty rule in that case only. The Supreme Court held that the penalty rule remains 'engaged' in other parking charge cases which will always turn on their own facts, signs and the construction of - and any commercial justification (or lack of same) for - the charge in each case.

The_Deep

Have you complained to your MP yet?

Chao123

Hi,

Quick update, I submit my defence with a few changes and have been allocated a court and hearing date of 16th March. The court papers mention they must pay an additional £25 by 17th Feb for the hearing otherwise the case is struck off and i can claim my costs.

I was wondering, as they have previously sent me an offer to negotiate and the court recommends this if i might use the court fee and threat of my costs as a compromise point. I would give them a confirmation i wont claim costs if they back out now otherwise when i win I will claim full costs. Essentially going forward with what I'm sure they realise isn't an easy claim could cost them an additional £25 + costs.

So my questions are is this a worthwhile strategy to have the claim ended now? What are the maximum costs I can claim?

Thanks for the help so far I will submit my witness statement on this thread upon completion.

Coupon-mad

So my questions are is this a worthwhile strategy to have the claim ended now?

Not really, it won't work. Try if you like but it's been done.

What are the maximum costs I can claim?

As per the example witness statement and costs schedules on any other threads. That's the easiest way to see what you can ask for and how to structure it.

Almost no-one gets their full costs for the time taken, and that's why you need to read other costs schedules to see why this has to be evidenced separately and what the high bar is that you must reach, to get those costs, and what you must convince the Judge about, to get the (your extra costs above the standard (£95 PLUS TRAVEL) even considered.