Court defence - Parking on vacant property with insufficient signage

MrsPickle

I am about to post my defence in the next message. I would really appreciate any commentary about what should be removed/altered, and if I'm missing an important point please share.
My deadline is 14th July, which is Sunday.
The car park in question was for an unoccupied business unit. There were no signs on entrance to the car park I used, or within the car park I used. The sign itself allows authorised vehicles only, they are displayed in other areas of (what turns out to be) the same property. It is not near any retail points of interest, it's an industrial area. The car park I used usually has around a quarter of the spaces occupied.
I also have a thread going on pepipoo that has been going since I received a response to my first and only letter to UKCPM. I can't post the link here as I am a new user, but it is under show topic 119123 .
Having read a number of defences on here, I thought it would be good to add mine for comment.

MrsPickle

Claim No. xxx
Claimant xxx
Defendant xxx

Continuation of Defence and Counterclaim Form
3. Defence
1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a £100 'parking charge notice' (PCN).

2. It is admitted that on xxx, the date of the alleged infringement, the Defendant was the registered keeper of vehicle registration mark xxx which is the subject of these proceedings.
3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. 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. Furthermore 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.

4. 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 £76.88, for 'contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest' which appears to be an attempt at 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:
''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.

5. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

a. The Defendant denies that the driver would have agreed to pay the parking charge of £100 to agree to the alleged contract had the terms and conditions of the contract been legally binding and properly displayed and accessible to a driver.

b. The alleged contract does not permit parking to unauthorised vehicles, there is no consideration on the part of both parties.
c. The alleged contract does not permit parking, but states a parking charge of £100, which is contradictory and confusing.
d. The alleged contract does not give any information on how to obtain a permit.

e. The Defendant denies that the signs at this location meet the mandatory test of transparency of terms that are 'bound to be seen', as set out within the Consumer Rights Act 2015. For a driver any terms relating to a parking contract would have had to have been extremely clear in all places within the site, in very large letters to ensure all drivers were 'bound to see' the terms.
f. There was no sign upon entry to carpark, contravening requirement 18.2 of the BPA code of practice.
g. The two signs that the claimant alleges were in the car park were not there.
h. The Claimant has provided no evidence, photographic or otherwise, of where the vehicle parked within the site, and/or whether the car stopped adjacent to, or in close proximity to which signage terms.

6. Failure to set out clear parking terms - ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished.

a. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be un-enforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

b. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout. This case is distinguished from the Beavis case in that there are inadequate signs which are incapable of binding the driver who did not enter into any contract, and nor was the site of commercial value.

c. This land is not comparable with the retail park in Beavis, and nor are the facts of the case.

7. 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. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says:
1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.

8. Legal Representatives Costs are disputed. The Defendant also disputes that the Claimant has incurred £50 solicitor costs. 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 'legal 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. 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, as demonstrated by a notification of “systems error” letter received dated 14th June 2019.

9. 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.

10. 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.
11. The defendant denies the claim in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14
12. Data Protection Act breach. For the reasons set out above, the parking charge which is the subject of these proceedings is invalid. The Claimant therefore had no right to request the keeper’s details from the DVLA and to use them, and has breached the Defendant’s rights under the Data Protection Act by doing both. Vidal-Hall v Google Inc [2014] EWHC 13 (QB) is authority that misuse of personal data is a tort. Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 is authority that a reasonable sum of compensation would be £750. The Defendant reserves his rights in respect of these matters.
13. 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.

I confirm that the above facts and statements are true to the best of my knowledge.

Name

Signed

Date

KeithP

What is the Issue Date on your Claim Form?

Did it come from the County Court Business Centre in Northampton, or from somewhere else?

The_Deep

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.

MrsPickle

Issue date on my claim form is 11th June 2019
yes, from county court business center in Northampton.
Good idea regarding the MP.
Really appreciate all help.
Do you think defence is okay/makes sense? I don't want to annoy the judge with irrelevant points or misinformation.

KeithP

MrsPickle wrote: »

Issue date on my claim form is 11th June 2019
yes, from county court business center in Northampton.

I am going to assume you completed the Acknowledgment of Service before 1st July.

With a Claim Issue Date of 11th June, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 15th July 2019 to file your Defence.

As you know, that's just a few days away.


When you are happy with the content, your Defence should 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.

MrsPickle

thank you for the email address and advice re checking MCOL

I haven't seen anything as to whether i should include the defence pages of the response pack (the bit of paper with the tick boxes) as the first two pages of the pdf. do i need to complete that and include it or just send the defence written above as a pdf?

MrsPickle

AOS was submitted 17th June

The_Deep

that sign seems quite high, also the £100 charge is in the smaller print.

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.

KeithP

MrsPickle wrote: »

thank you for the email address and advice re checking MCOL

I haven't seen anything as to whether i should include the defence pages of the response pack (the bit of paper with the tick boxes) as the first two pages of the pdf. do i need to complete that and include it or just send the defence written above as a pdf?

Just follow the guidance I offered earlier.

It would be a very long list if I wrote all the things you don't need to do.

MrsPickle

thank you Keith. I'll just print my defence and send that. i've not had any "no no no's!" to the points in my defence, so i'm going to assume it's kind of okay. i'll wait until tomorrow to print and email in case anyone has any corrections for me overnight.
thank you so much for your help guys. without folk like you i wouldn't know where to start!