Court Claim Received - Found in favour of VCS :-(

nosferatu1001

You dont simply REMOVE the POFA cap on charges, presuming you are defenidng as Keeper. This is an *absolute* cap on how much they can claim, they know it, so it is ALSO an abuse of process. Two different reasons for abuse, two different para.

danonj

Thanks nosferatu. I removed the mention of POFA as the claim will be defended as the driver.

danonj

I've re-written my defence based on some more recent examples.
I've also removed a number of paragraphs that I thought actually might be better in the WS, when/if it comes to that.
Appreciate any and all opinions, thanks.

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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 claim, there are no terms and conditions displayed at the car park entrance in a position that is visible without entering the property.

4. The signage on and around the site in question was small, unclear and not prominent and did not meet the International Parking Community (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 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 available to make payment. 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 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.

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. The costs on the claim are disproportionate and disingenuous:

12.1. 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 specified as part of the supposed contract.

12.2. 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.

12.3. 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.”

12.4. 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 'debt collection’ 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.

12.5. 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.

12.6. 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.

12.7. 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.

13. The Claimant has inadequately responded 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. Photos have been provided, but the size of the sign, font and the height at which they are displayed was not included.

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. 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

Le_Kirk

You've left off your point 16!

danonj

I moved the previous point 16 to be earlier in the defence. It's now point 12 and sub points, based on the abuse of process defence points drafted by coupon-mad.

danonj

Any further feedback guys?
Or is this good to go?

Thanks

danonj

I have now received the Notice of Allocation for a hearing at my local court.
Better polish up my witness statement and ensure I've got all the supporting evidence gathered.

Any advice gladly welcomed.

Le_Kirk

Read some witness statements (WS) in the NEWBIE sticky post # 2, plus search for witness statements in the forum. Your WS should be a narrative of what happened on the day (and subsequently) and should be "in support of your defence already filed." It should not be a reworking of your defence, nor should it try to add new defence points. It should have evidence properly referenced.

danonj

I'm still drafting my WS, but it's almost done.
Interestingly I received a letter from V C S offering a reduced settlement charge (still an outrageous amount of money). Their letter states "We are confident that we have a strong case against you...". Seems odd then that they're willing to settle if that were true?
I'm tempted to make an offer in return, for the amount the P&D machine would have charged me had it been working and remind them that when they lose I will be asking for my costs to be covered, which given the court date is on a day that I would usually be working, would be at my day rate (i'm an independent contractor).
Would making such an offer be recommended by the wise folks on here?

Coupon-mad

Yes, nothing to lose. Head it WITHOUT PREJUDICE, SAVE AS TO COSTS.

You cannot refer to this WP communication in your WS.