Complicated defence - multiple companies

LaserBlue

KeithP wrote: »

Since you state that the signs say “No parking at anytime”, I would've expected to see mentioned that the signs are forbidding signs and are therefore incapable of being the basis of a contract.

A sign with those words on it clearly does not offer a contract to park.

There is some standard small print underneath that is on all signs by this PPC, saying something along the lines of "by parking on this private land you agree to the terms above and if you breach them then you agree to pay us etc". So I assume that not strictly forbidding.

MonkeyRum

LaserBlue wrote: »

There is some standard small print underneath that is on all signs by this PPC, saying something along the lines of "by parking on this private land you agree to the terms above and if you breach them then you agree to pay us etc". So I assume that not strictly forbidding.

One cannot explicitly forbid parking and then enter into a contract for parking. It's a legal nonsense. They are trying to, "have their cake and eat it too" as it were.

LaserBlue

Many thanks for your help. I've made some updates. Feedback would be much appreciated on this version. I will keep you all updated.

IN THE COUNTY COURT

CLAIM No: *******

BETWEEN:

Sharksters Parking Ltd (Claimant)

-and-

******** (Defendant)

________________________________________
DEFENCE
________________________________________

Preliminary

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. Each and every allegation in the Particulars of Claim is denied.

2. 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.

3. Background

3.1 It is admitted that at all material times the Defendant was the owner and registered keeper of the vehicle in question.

3.2 The vehicle was stopped for a few minutes on private land to undertake a delivery at XXXXX using the loading bay and was issued a PCN (“Parking Charge Notice”) by the Claimant for breach of contract.

3.3 The Claimant's terms and conditions advertised on the loading bay at the time stated: “No parking at anytime” (sic).

3.4 The Claimant received a request from the landowners’ agent to update the ambiguous signage and cancel the Defendant’s PCN.

3.5 The Claimant received an appeal from the Defendant in an attempt to highlight the ambiguous signage and futility of this claim.

3.6 The Claimant has ignored the appeal from the Defendant and continues to harass the Defendant for payment for over four years.

4. Authority to use the loading bay

4.1 At the time of the alleged breach, the reception staff verbally allowed the vehicle access to the loading bay to enable loading/unloading on more than one occasion to more than one vehicle. Landholders cannot allow or promise this, on the one hand, then on the other hand, take away this permission or promise in allowing a third party to disallow and/or seek to charge for the permitted action by a driver.

4.2. Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in case number B9GF0A9E:'JOPSON V HOME GUARD SERVICES’ which also adduced a business car park decision, analogous to this present case.

4.3 After the alleged breach, the landowner’s agent gave written confirmation to the Defendant that the PCN associated with the alleged breach has been cancelled by the Claimant (evidence available to be provided upon request).

4.4 It is the Defendant's view that the Claimant has wilfully ignored instructions from the landowner’s agent to allow a 20 minute grace period for loading/unloading.

4.5 It is the Defendant's view that the Claimant has wilfully ignored instructions from the landowner’s agent to cancel the Defendant’s PCN.

4.6 If it can be proven that "parking" has occurred The Claimant did not comply with the IPC code of practice (Part B 15.1), regarding grace periods: “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.” 10 mins is generally accepted to be the minimum amount of time to read and understand a contract and make a decision to park or not to park.

5. Insufficient signage

5.1 The Claimant's signs did not mention anything regarding "loading" or "unloading" so it is impossible for any contract to be established with the Defendant. The Claimant's sign only mentions "parking" and at no time was the vehicle "parked". (Photograph evidence of signboards are available to be provided upon request.)

5.2 The wording of the sign is contradictory in that it implies that a contract is entered into “by parking” but the activity of parking is forbidden. One cannot explicitly forbid parking and then enter into a contract for parking.

5.3 At the time of the alleged breach, the Claimant's sign was in small print, the terms were illegible and a delivery driver would only be bound by the large writing (“LOADING ONLY”) on the road, which authorises unloading/deliveries in this area and mentions no stated charges. (Photograph evidence of loading bay markings are available to be provided upon request.)

6. Harassment

6.1 Despite instruction from the landowner’s agent to cancel the PCN, the Claimant continues to store the Defendant’s personal details to pursue the claim and threatens to share the Defendant's details with third party debt collectors. This has caused considerable stress to the Defendant.

6.2 The Claimant persists in pursuing the Defendant for breach of contract despite acknowledging the that the signage was insufficuent to enforce a contract at the time of the aledged breach.

6.2 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.

7. PoFA 2012

7.1 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.

7.2 The driver has not been evidenced on any occasion.

7.3 There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This 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.

8. 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 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 confirm that the contents of this statement are true to the best of my knowledge and belief.
Date and signature

LaserBlue

I'd like to get this defence submitted in the next few days, so feedback would be much-appreciated thanks.

I also have a few more questions:

1. Once our defence is submitted, could the parking company use it to locate this thread and use the information here against us?

2. Is it still okay to have "PoFA 2012" in my defence as I am unsure if this applies?

Redx

1) of course they could, no question about it and yes they do and have done so

2) put it in anyway and let a judge decide,assume that pofa is protecting you unless proven otherwise

LaserBlue

Thanks! Any feedback on the defence? Or good to go?

Redx

LaserBlue wrote: »

Thanks! Any feedback on the defence? Or good to go?

You have 10 more days to get it right, stop rushing, it isn't a race

Egbert_Nobacon

I would be inclined to remove the second 6.2 and replace 8 with Coupon-mad’s excellent ABUSE OF PROCESS text:-

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.

- 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 serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing:
The DJ quoted -
''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...''

- 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.

- 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.

- 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.

Redx

the bit before IT IS ORDERED needs embellishing to say that the quote by the judge was "IT IS ORDERED blah blah" , or something similar , so that it means the strike out wording is being quoted, not an order to a new judge

Egbert_Nobacon

Altered thanks Redx.