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Court Claim Received - Found in favour of VCS :-(
danonj
Posts: 22 Forumite
The driver has read through the newbies guide and what appear to be similar cases.
Hopefully the drive has complied with the etiquette on creating a new thread.
Naively, the driver used the email address supplied on the PCN to appeal and in that email supplied their name and address along with statements that made it clear they were the driver.
The driver was unable to purchase a ticket as the machine was displaying "not in use" on the screen and wouldn't accept any coins.
Following the appeal email, the driver received nothing more than an auto acknowledgement email. Over 3 years went by, the driver moved house a couple of times (but was still in contact with the occupier of the address supplied in the appeal email, at which point an LBC was received.
A SAR was submitted.
A county court claim with an issue date of 24 June 19 has been received.
The AoS has been completed.
Here's the driver's draft defence, any advise would be much appreciated.
IN THE COUNTY COURT
CLAIM No: XXXXXXX
BETWEEN:
XXXXXXX (Claimant)
-and-
XXXXXXX (Defendant)
DEFENCE
1. The Defendant was the registered keeper of vehicle registration number XXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. 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. Furthermore, 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. Contrary to the Claimant’s claim, there are no terms and conditions displayed at the car park entrance.
4. The signage on and around the site in question was small, unclear and not prominent and did not meet the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore, no contract has been formed with the Defendant to pay £100.00, or any additional fee charged if unpaid in 28 days.
5. The signage terms fail the test of "large lettering" and prominence of the parking charge, as established in Parking Eye Ltd v Beavis (2015), which is fully distinguished. The unremarkable and obscure signs were not seen by the driver at the time the Parking Charge Notice was issued. The signs are in very small print, too high up to be read by occupants in a car before they park or leave the car. These signs should be visible and easy to read for users from the car before they leave the vehicle. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
6. No sum payable to this Claimant was accepted nor even known about by the Defendant as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.
7. At the time the Defendant attempted to make payment, the PDT machine was displaying a message on the screen stating “NOT IN USE” and any coins put into the machine were immediately ejected. This was understood to mean that the machine was operational, but payments were not being taken for parking at that time. This appeared to be confirmed by other vehicles also not displaying tickets at the time.
8. There was no alternative means to make payment provided. No other PDT machines could be found in the vicinity and there was no signage providing directions to the nearest alternative PDT machine.
9. The Defendant did not have a mobile telephone at the time with which to call the helpline. No alternative means were provided to contact the helpline.
10. The Defendant submitted a SAR to the Claimant via email on XXXX:
10.1. The Claimant did not respond to the SAR within the required 1 calendar month timeframe (response was received on XXX). In the Claimants initial response to the SAR, they claimed that the timeframe to respond wouldn’t start until the Defendant provided additional information. This is in contradiction to GDPR. The following is an extract from the ICO website:
“You must act on the subject access request without undue delay and at the latest within one month of receipt.
You should calculate the time limit from the day after you receive the request (whether the day after is a working day or not) until the corresponding calendar date in the next month.”
“It is the ICO's view that it is unlikely to be reasonable to extend the time limit if:
• it is manifestly unfounded or excessive;
• an exemption applies; or
• you are requesting proof of identity before considering the request.”
10.2. The SAR response did not appear to include all personal data held by the Claimant, e.g it did not include a copy of an email sent from the Defendant on XXX, which was acknowledged by the Claimant via an automated response.
10.3. The SAR response did contain a copy of a letter dated XXX addressed to the Defendant acknowledging the appeal received on XXXX (the email referred to in 10.2). This letter was not received by the Defendant.
10.4. The SAR does not include copies of any attempts by the Claimant to make contact with the Defendant, in contradiction to the LBC received which states, “Despite our best endeavours to recover payments it has proved unsuccessful”
11. The Claimant has yet to provide any evidence to prove that the PDT machine was operating correctly, despite records for the day being requested by the Defendant on XXXX.
12. The PCN states the vehicle “was seen in: XXXX”, the vehicle was in fact parked in “YYYY”. “YYYY” is displayed on the signage at the car park entrance.
13. The Claimant has yet to respond to the Defendant’s request for additional information lacking in the Letter Before Claim, which breached the requirements of the Pre-Action Protocol for Debt Claims, paragraphs 3.1 (a)-(d), 5.1 and 5.2 and the Practice Direction – Pre-Action Conduct, paragraphs 6 (a) and 6 (c). The following requests have been inadequately addressed:
13.1. Provide a copy of the contract with the landowner under which the Claimant asserts authority to bring the claim, as required by the IPC Code of Practice, Section B, clause 1.1 Establishing Yourself as the ‘Creditor’.
13.2. Photographs of the signs displayed (size of sign, size of font, height at which displayed) at the time of the alleged contravention.
13.3. A copy of the Notice to Keeper
13.4. A copy of the PDT machine record for the day of payments made (with VRNs redacted if required)
14. As the Claimant has not provided the information in paragraphs 13.1 to 13.4 above, the Defendant refers the Court to the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 and asks the Court to impose sanctions on the Claimant and to order a stay of the proceedings, pursuant to paragraphs 13,15 (b) and (c) and 16 of the Practice Direction – Pre-Action Conduct, as referred to in paragraph 7.2 of the Pre-Action Protocol for Debt Claims.
15. 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.
16. The Protection of Freedoms Act 2012, Schedule 4, 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 £100.00. The claim includes an additional £60.00, described as a debt collection charge, which appears to be an attempt at double recovery. The Claimant is also claiming £XX.XX of (estimated) interest, which would not have reached such an amount had the Claimant truly made ‘best endeavours’ to contact the Defendant in the X years and X months since the alleged breach of contract.
17. 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 Civil Procedure Rules 3.4 (Power to Strike Out a Statement of Case).
Statement of Truth:
I believe the facts contained in this Defence are true.
XXXX XXXXXXXXXXXX
XX XXXX 2019
Hopefully the drive has complied with the etiquette on creating a new thread.
Naively, the driver used the email address supplied on the PCN to appeal and in that email supplied their name and address along with statements that made it clear they were the driver.
The driver was unable to purchase a ticket as the machine was displaying "not in use" on the screen and wouldn't accept any coins.
Following the appeal email, the driver received nothing more than an auto acknowledgement email. Over 3 years went by, the driver moved house a couple of times (but was still in contact with the occupier of the address supplied in the appeal email, at which point an LBC was received.
A SAR was submitted.
A county court claim with an issue date of 24 June 19 has been received.
The AoS has been completed.
Here's the driver's draft defence, any advise would be much appreciated.
IN THE COUNTY COURT
CLAIM No: XXXXXXX
BETWEEN:
XXXXXXX (Claimant)
-and-
XXXXXXX (Defendant)
DEFENCE
1. The Defendant was the registered keeper of vehicle registration number XXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. 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. Furthermore, 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. Contrary to the Claimant’s claim, there are no terms and conditions displayed at the car park entrance.
4. The signage on and around the site in question was small, unclear and not prominent and did not meet the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore, no contract has been formed with the Defendant to pay £100.00, or any additional fee charged if unpaid in 28 days.
5. The signage terms fail the test of "large lettering" and prominence of the parking charge, as established in Parking Eye Ltd v Beavis (2015), which is fully distinguished. The unremarkable and obscure signs were not seen by the driver at the time the Parking Charge Notice was issued. The signs are in very small print, too high up to be read by occupants in a car before they park or leave the car. These signs should be visible and easy to read for users from the car before they leave the vehicle. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
6. No sum payable to this Claimant was accepted nor even known about by the Defendant as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.
7. At the time the Defendant attempted to make payment, the PDT machine was displaying a message on the screen stating “NOT IN USE” and any coins put into the machine were immediately ejected. This was understood to mean that the machine was operational, but payments were not being taken for parking at that time. This appeared to be confirmed by other vehicles also not displaying tickets at the time.
8. There was no alternative means to make payment provided. No other PDT machines could be found in the vicinity and there was no signage providing directions to the nearest alternative PDT machine.
9. The Defendant did not have a mobile telephone at the time with which to call the helpline. No alternative means were provided to contact the helpline.
10. The Defendant submitted a SAR to the Claimant via email on XXXX:
10.1. The Claimant did not respond to the SAR within the required 1 calendar month timeframe (response was received on XXX). In the Claimants initial response to the SAR, they claimed that the timeframe to respond wouldn’t start until the Defendant provided additional information. This is in contradiction to GDPR. The following is an extract from the ICO website:
“You must act on the subject access request without undue delay and at the latest within one month of receipt.
You should calculate the time limit from the day after you receive the request (whether the day after is a working day or not) until the corresponding calendar date in the next month.”
“It is the ICO's view that it is unlikely to be reasonable to extend the time limit if:
• it is manifestly unfounded or excessive;
• an exemption applies; or
• you are requesting proof of identity before considering the request.”
10.2. The SAR response did not appear to include all personal data held by the Claimant, e.g it did not include a copy of an email sent from the Defendant on XXX, which was acknowledged by the Claimant via an automated response.
10.3. The SAR response did contain a copy of a letter dated XXX addressed to the Defendant acknowledging the appeal received on XXXX (the email referred to in 10.2). This letter was not received by the Defendant.
10.4. The SAR does not include copies of any attempts by the Claimant to make contact with the Defendant, in contradiction to the LBC received which states, “Despite our best endeavours to recover payments it has proved unsuccessful”
11. The Claimant has yet to provide any evidence to prove that the PDT machine was operating correctly, despite records for the day being requested by the Defendant on XXXX.
12. The PCN states the vehicle “was seen in: XXXX”, the vehicle was in fact parked in “YYYY”. “YYYY” is displayed on the signage at the car park entrance.
13. The Claimant has yet to respond to the Defendant’s request for additional information lacking in the Letter Before Claim, which breached the requirements of the Pre-Action Protocol for Debt Claims, paragraphs 3.1 (a)-(d), 5.1 and 5.2 and the Practice Direction – Pre-Action Conduct, paragraphs 6 (a) and 6 (c). The following requests have been inadequately addressed:
13.1. Provide a copy of the contract with the landowner under which the Claimant asserts authority to bring the claim, as required by the IPC Code of Practice, Section B, clause 1.1 Establishing Yourself as the ‘Creditor’.
13.2. Photographs of the signs displayed (size of sign, size of font, height at which displayed) at the time of the alleged contravention.
13.3. A copy of the Notice to Keeper
13.4. A copy of the PDT machine record for the day of payments made (with VRNs redacted if required)
14. As the Claimant has not provided the information in paragraphs 13.1 to 13.4 above, the Defendant refers the Court to the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 and asks the Court to impose sanctions on the Claimant and to order a stay of the proceedings, pursuant to paragraphs 13,15 (b) and (c) and 16 of the Practice Direction – Pre-Action Conduct, as referred to in paragraph 7.2 of the Pre-Action Protocol for Debt Claims.
15. 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.
16. The Protection of Freedoms Act 2012, Schedule 4, 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 £100.00. The claim includes an additional £60.00, described as a debt collection charge, which appears to be an attempt at double recovery. The Claimant is also claiming £XX.XX of (estimated) interest, which would not have reached such an amount had the Claimant truly made ‘best endeavours’ to contact the Defendant in the X years and X months since the alleged breach of contract.
17. 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 Civil Procedure Rules 3.4 (Power to Strike Out a Statement of Case).
Statement of Truth:
I believe the facts contained in this Defence are true.
XXXX XXXXXXXXXXXX
XX XXXX 2019
0
Comments
-
You say you appealed as the driver yet are using pofa in your defence??0
-
With a Claim Issue Date of 24th June, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 29th July 2019 to file your Defence.A county court claim with an issue date of 24 June 19 has been received.
The AoS has been completed.
That's nearly three weeks away. Loads of time to produce a perfect Defence, but please don't leave 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.
-
The Independent Parking Committee (IPC) became known as the International Parking Community about four years ago.
This leads me to believe that perhaps it might be a good idea to look for a newer sample Defence to crib from.0 -
You say you appealed as the driver yet are using pofa in your defence??
Ah I see, so someone could only rely on PoFA as a defence as the keeper. I'll remove this point.0 -
The Independent Parking Committee (IPC) became known as the International Parking Community about four years ago.
This leads me to believe that perhaps it might be a good idea to look for a newer sample Defence to crib from.
Thanks for pointing this out, in my searching of previous posts I must have gone a bit too far back. I'll take your suggestion and find a more recent one to refer to.0 -
Yes they can but not in reference to pofa, so edit it accordingly
It's still an abuse of process even if the claim was about an unpaid bill for decorating
Pofa can help to protect a keeper, it has no bearing on drivers0 -
Yes they can but not in reference to pofa, so edit it accordingly
It's still an abuse of process even if the claim was about an unpaid bill for decorating
Pofa can help to protect a keeper, it has no bearing on drivers
How about the following:
The claim includes an additional £60.00, described as a debt collection charge. The Defendant believes this to be an abuse of process as per Claim number: F0DP201T District Judge Taylor, Southampton Court, 10th June 20190 -
Needs the d j grand reference etc as well, longer, not short
You need to adapt the paragraphs , not cut them to pieces, and add as many as possible
The signs gave the default charge, they won't state the extra charges
Read what Johnnersh said about it0 -
Thanks for the pointers Redx, I've hopefully understood you correctly and have adapted the paragraph like so:
16. The claim includes an additional £60.00, described as a debt collection charge. The Defendant believes this to be an abuse of process as these charges were not stated as part of the supposed contract. 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.0
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