Court defence - Parking on vacant property with insufficient signage

Le_Kirk

Your point 4 in the defence is good and is hopefully copied from the post by beamerguy added to by Coupon-mad but I think you should make it clear that where it says "IT IS ORDERED THAT......." it is a quote from DJ Grand and echoed by DJ Taylor and not an order/instruction to the judge in your case.

KeithP

I think you are expecting a little too much from this forum.

You posted your Defence here earlier this afternoon.

I would suggest that you leave it a least a couple of days for comment before filing it.

MrsPickle

so i am re-reading and i appear to have 2 almost identical points, points 10 & 11. should i get rid of one of these or consolidate? which one is better?
i am going to alter point 4 to make it obvious that the quote is from a judge.

nosferatu1001

Keep 10 remove 11

Coupon-mad

I think I would add another line or two here, to explain nice and early to the Judge, what sort of car park it is and why the car was de facto authorised to be there:

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.

I think this should be lower down, just before #8 which is also about fake costs:

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.''

As shown, it needs closed speech marks at the end of the quote.

And you are not filling in any form, neither online nor by paper, so I was confused about this heading:

Continuation of Defence and Counterclaim Form

Do not even have that MCOL page open, AT ALL. It's dangerous as people have been known to type 'TBA' or 'see email' in the defence box...and then guess what their defence is legally taken to be?

MrsPickle

Thanks LeKirk, I have tweaked point 4 (which has now been moved to point 7) to make it clearer that "IT IS ORDERED THAT... forms part of a quote.
Thanks Nosferatu, original point 11 now removed.
Thank you Couponmad, I have now beefed up point 2, i'm not sure if the comments i've made about the signs are what would de facto authorise the car to be there? Have also shifted original point 4 to become point 7, and removed the headings.
On the pepipoo forum (showtopic=119123) Lynnzer had suggested "Add a counterclaim for £750 for their unreasonable behaviour for laying a claim when no evidence exists that the car park was under any parking control at all." I have already put in a counterclaim within point 11 for that same amount, but in relation to misuse of personal data. Is Lynnzer's suggestion for the £750 likely to be based on the same reasoning?
Next post is my current version of the defence, as tweaked by you guys.

MrsPickle

Claim No. xxx
Claimant xxx
Defendant xxx

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. The vehicle was parked in a car park at the front of an unoccupied business unit located in an industrial area, the car park was around one quarter full. There were no signs in relation to parking upon entrance to or within the car park.
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 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.

5. 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.

6. 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.

7. 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. DJ Grand stated: ''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.”, and this was echoed by DJ Taylor.
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. 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 their rights in respect of these matters.
12. 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

MrsPickle

I have now printed, signed, and scanned the above version so it's ready to email off if all good. I'm away from my office until Monday so I wont have easy access to printers and scanners until Monday, and thought I'd better get it done now in case the above does result in being the final version. If tweaks still needed I'm sure i can find a friend who has the equipment. I'm still checking back for your comments guys, thanks for all your help so far.

MrsPickle

Have just emailed my defence in per Keith P advice.
I'll check MCOL tomorrow and Monday, but can't imagine that anything will be done on a sat or sun. I had thought my deadline tomorrow, but would appear to be Monday, so I guess Monday I should probably send a follow up email with urgent status to if the MCOL claim status isn't updated to show defence received.
Have had an acknowledgement email back at 3:51pm saying "The County Court Business Centre is a separate entity to Northampton Combined Court and therefore only deal with CCBC and Traffic Enforcement queries. We do not deal with Family, Probate or Bankruptcy matters.", presume all normal and this counts as a traffic enforcement enquiry.

KeithP

MrsPickle wrote: »

Have had an acknowledgement email back at 3:51pm saying "The County Court Business Centre is a separate entity to Northampton Combined Court and therefore only deal with CCBC and Traffic Enforcement queries. We do not deal with Family, Probate or Bankruptcy matters.", presume all normal and this counts as a traffic enforcement enquiry.

Yes it is "all normal" but it is not a "traffic enforcement enquiry".
It is CCBC business.