court claim - residents permit (i have read other threads and would like advice please)

Coupon-mad

Or, clearly up to you, say that the driver was an authorised visitor, relying upon the rights & easements enjoyed by residents and visitors to xxxxx (location) and will adduce the resident's tenancy agreement in evidence.

roary

ok, i've amended defence based on comments
additions in red

“
Current draft Defence:



IN THE COUNTY COURT



CLAIM No: xxxxxxxxxx



BETWEEN:



xxxxxxxxxxxxx (Claimant)



-and-



xxxxxxxxxxxx (Defendant)



________________________________________
DEFENCE
________________________________________



Preliminary



1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. Save where otherwise admitted, each and every allegation in the Particulars of Claim is denied.
2. The Particulars of Claim lack specificity and The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the un-evidenced allegations in the Particulars.
3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.
4. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). 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. Further, 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.



Costs on the claim - disproportionate and disingenuous

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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...''

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.

13. 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.

14. 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.



Background



15. It is admitted that at all material times the Defendant was the owner and registered keeper of the vehicle in question. The Defendant is unable to admit or deny whether they were the driver who parked the vehicle on this occasion, given the lack of evidence from the Claimant and the fact that multiple people are insured to drive the vehicle.



16. The Defendant is colleagues with a resident at the location where the Parking Charge Notice in question was issued. The residents landlord is the owner of the flat but its unclear how long the landlord has owned the property for and whether the landlord still owns the property. The landlord has granted his tenants rights to park based upon the demise, grant and/or easements within his own lease for many years before this PCN was issued.



17. It is averred that the resident is entitled to rely upon the parking rights granted from the landlord, and further up that chain of authority, the landlord is entitled to rely upon his primacy of contract within his lease, in order to grant his tenants an unfettered right to park.



18. The Claimant is put to strict proof of their due diligence by inspecting the Head Lease and considering the rights of the residents, prior to commencing enforcement. This is a location where residents already enjoyed rights that cannot be varied, restricted or charged for, outwith a lease variation (Landlord & Tenant Act 1987 applies). Where a majority of the leaseholders agree to any proposed variation, if there are less than 9 leases all or all but one of the parties must consent and if there are more than 8 leases, 75% of the parties must consent, and not more than 10% must not object to the proposed variation. This degree of consensus is notoriously hard to achieve and it is averred the Claimant has simply not bothered, and merely set up some signs and imposed permits upon people out of the blue, causing an ongoing private nuisance to those affected.



19. 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.



20. It is denied that any parking charges “loss and/or damage" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.



21. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.



Authority to Park and Primacy of Contract



22.There are no terms within the Residents Tenancy Agreement requiring residents or their guests to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Primacy of contract cannot be amended by Private Parking Company signs unless the resident has agreed to a variation of the tenancy, which the resident has not.



22.1. There is a large body of case law, which establishes this. In Link Parking Ltd vs J. Parkinson [2016] C7GF50J7, the Judge, referring to a similar case in In Pace Recovery v Mr N [2016] C6GF14F0 [2016] ruled that:
“…the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract.



23. In correspondence received by the Defendant, the Claimant relies on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.



24. Prior to the incident no parking permits were issued to the resident, nor was the resident notified of the permit system. A permit was provided, along with notification of the system, 1 month after this PCN was issued.



25. The Particulars of Claim state that the Defendants vehicle was parked “without clearly displaying a valid permit.” The Defendants colleague did not possess a permit at the time of the incident.



26. It is stated within the Tenancy agreement that The Landlord will not ”interrupt or interfere with the tenants lawful occupation enjoyment or use of the premises”. The only restrictions upon parking disallow use of repairs or storage of boats, caravans, or commercial vehicles.



27. The Claimant’s notices attempt to make a forbidding offer, which isn’t an offer at all therefore no contract exists.



28. 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.



29. The principle of primacy of contract of the terms of a Lease, overriding any purported terms conveyed by a parking operator's signage, is well rehearsed in numerous persuasive Judgments given at various County Court hearing centres. The Defendant will provide transcripts of a selection of Approved Judgments supporting this principle at the appropriate time, should this matter proceed to trial.



30. The Defendant avers that the operator’s signs cannot override the existing rights enjoyed by residents. Accordingly, using the statutory wording from the Protection of Freedoms Act 2012, Schedule 4 (the POFA) relating to parking charges on private land, it is denied that:
30.1. there was any 'relevant contract' between the Defendant or driver of the vehicle and the Claimant.
30.2. there was any 'relevant obligation' (at all) to display a permit.



Wholly unreasonable and vexatious claim - no legitimate interest



31. The Defendant avers that there can be no "legitimate interest" in penalising residents for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is contrary to the requirement of good faith and "out of all proportion to any legitimate interest" to fine residents or their visitors for using the parking spaces provided.



32. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.









33. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial, the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).



34. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.



I believe the facts contained in this Defence are true.






Name






Signature






Date




the plan is to submit on tuesday. if you can please comment

Coupon-mad

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.

Is that in bold because it's not true? Obviously remove or change anything that makes no sense for your case.

And you clearly can't have ''in summary'' at #12 if your defence goes to #34!

The costs section should be the end bit and the background & facts, higher. Your #33 and #34 will then not be needed, you will see, because it's already said in the red parts about costs that will be moved to the end.

roary

updated as advised.......
“
Current draft Defence:

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

xxxxxxxxxxxxx (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

Preliminary

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. Save where otherwise admitted, each and every allegation in the Particulars of Claim is denied.
2. The Particulars of Claim lack specificity and The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the un-evidenced allegations in the Particulars.
3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.
4. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). 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. Further, 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.
Background
5. It is admitted that at all material times the Defendant was the owner and registered keeper of the vehicle in question. The Defendant is unable to admit or deny whether they were the driver who parked the vehicle on this occasion, given the lack of evidence from the Claimant and the fact that multiple people are insured to drive the vehicle.
6. The Defendant is colleagues with a resident at the location where the Parking Charge Notice in question was issued. The residents landlord is the owner of the flat but its unclear how long the landlord has owned the property for and whether the landlord still owns the property. The landlord has granted his tenants rights to park based upon the demise, grant and/or easements within his own lease for many years before this PCN was issued.
7. It is averred that the resident is entitled to rely upon the parking rights granted from the landlord, and further up that chain of authority, the landlord is entitled to rely upon his primacy of contract within his lease, in order to grant his tenants an unfettered right to park.
8. The Claimant is put to strict proof of their due diligence by inspecting the Head Lease and considering the rights of the residents, prior to commencing enforcement. This is a location where residents already enjoyed rights that cannot be varied, restricted or charged for, outwith a lease variation (Landlord & Tenant Act 1987 applies). Where a majority of the leaseholders agree to any proposed variation, if there are less than 9 leases all or all but one of the parties must consent and if there are more than 8 leases, 75% of the parties must consent, and not more than 10% must not object to the proposed variation. This degree of consensus is notoriously hard to achieve and it is averred the Claimant has simply not bothered, and merely set up some signs and imposed permits upon people out of the blue, causing an ongoing private nuisance to those affected.
9. 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.
10. It is denied that any parking charges “loss and/or damage" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.
11. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.
Authority to Park and Primacy of Contract
12.There are no terms within the Residents Tenancy Agreement requiring residents or their guests to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same. Primacy of contract cannot be amended by Private Parking Company signs unless the resident has agreed to a variation of the tenancy, which the resident has not.
12.1. There is a large body of case law, which establishes this. In Link Parking Ltd vs J. Parkinson [2016] C7GF50J7, the Judge, referring to a similar case in In Pace Recovery v Mr N [2016] C6GF14F0 [2016] ruled that:
“…the Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract.
13. In correspondence received by the Defendant, the Claimant relies on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.
14. Prior to the incident no parking permits were issued to the resident, nor was the resident notified of the permit system. A permit was provided, along with notification of the system, 1 month after this PCN was issued.
15. The Particulars of Claim state that the Defendants vehicle was parked “without clearly displaying a valid permit.” The Defendants colleague did not possess a permit at the time of the incident.
16. It is stated within the Tenancy agreement that The Landlord will not ”interrupt or interfere with the tenants lawful occupation enjoyment or use of the premises”. The only restrictions upon parking disallow use of repairs or storage of boats, caravans, or commercial vehicles.
17. The Claimant’s notices attempt to make a forbidding offer, which isn’t an offer at all therefore no contract exists.
18. 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.
19. The principle of primacy of contract of the terms of a Lease, overriding any purported terms conveyed by a parking operator's signage, is well rehearsed in numerous persuasive Judgments given at various County Court hearing centres. The Defendant will provide transcripts of a selection of Approved Judgments supporting this principle at the appropriate time, should this matter proceed to trial.
20. The Defendant avers that the operator’s signs cannot override the existing rights enjoyed by residents. Accordingly, using the statutory wording from the Protection of Freedoms Act 2012, Schedule 4 (the POFA) relating to parking charges on private land, it is denied that:
20.1. there was any 'relevant contract' between the Defendant or driver of the vehicle and the Claimant.
20.2. there was any 'relevant obligation' (at all) to display a permit.
Wholly unreasonable and vexatious claim - no legitimate interest
21. The Defendant avers that there can be no "legitimate interest" in penalising residents for using parking spaces, under the excuse of a scheme where ostensibly and as far as the landowner is concerned, the parking firm is contracted for the benefit of the residents. It is contrary to the requirement of good faith and "out of all proportion to any legitimate interest" to fine residents or their visitors for using the parking spaces provided.
22. The presence of the Claimant on the land will have supposedly been to prevent parking by uninvited persons, for the benefit of the actual leaseholders. Instead, a predatory operation has been carried out on those very people whose interests the Claimant was purportedly there to uphold.

Costs on the claim - disproportionate and disingenuous

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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...''

30. 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.

31. 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.

32. 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.

I believe the facts contained in this Defence are true.


Name


Signature


Date

Le_Kirk

In your para 2 of point 29, you need to make it clear that you are QUOTING the previous District Judges, rather than giving the court an order or instruction.

roary

Status update

Defence submitted and now DQ submitted to courts. What is the time limit on submitting DQ to claimant?

I received the SAR for the claimant today via email and within the ‘Letter before claim’ it states the reason for the £160 charge.

“The sum is inclusive of a debt collection charge of £60.00 in accordance with the Terms and Conditions of parking.”

The case was sent to ‘Debt Recovery Plus’ 2 months after the incident. It was then sent to ‘BW Legal’ 1 year after the incident. The signage does state “any additional costs on an indemnity basis”.

I think this is covered in the defence as ‘wholly disproportionate’

Umkomaas

What is the time limit on submitting DQ to claimant?

You should send it simultaneously with sending to the court.

The sum is inclusive of a debt collection charge of £60.00

DRP don't charge any fee unless they are successful in recovering money for their client. Read their T&Cs on their website - no win, no fee.

This is an attempt at double recovery and is an 'Abuse of Process'. Read beamerguy's thread here:

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

You will need to include this somewhere in your Witness Statement.

Fruitcake

In the Beavis case, the judges stated that the £85 charge was high as it included all recovery and legal fees. I suggest you look it up and quote the words of the Supreme Court judges.
I believe the PoFA also says the charge cannot exceed the original amount of the PCN originally charged.

roary

i'm now in a position where i need to submit my witness statements. to recap my defence is based on 2 points - 1st is that residents parking mentions no requirement for parking permits or contract with parking company. in addition no permits were sent to the resident until after the incident.
2nd is that the additional £60 added on from debt recovery is an abuse of process


i have a WS from the tenant who details his relationship to me and explains the parking situation


see below for detail


The following witness statement is prepared at the request of the defendant.
1. I have known the defendant for over ten years now, having been colleagues for three of
these years
2. I was the resident of xxxxx and this property is linked to the parking location of the parking incident in May 2015 that the claimant is referencing
3. I had been in the property from 12th May 2012, being managed by on behalf of the landlord
by xxxxxx until vacating the property in 4th March 2018
4. Within my assured shorthold tenancey agreement [1], clause 2.54 and clause 2.55 outlined
what I was not permitted to do without prior consent of my landlord in relation to use of the
communal car park (i.e. store large vehicles and/or commercial maintenance), there was no
mention of additional tenancy company (Who sent to parking permits) or parking company or that I would need to apply for a 3rd party parking agreement as the parking was specifically designated for use by a resident of the property of xxxxxxxxxx
5. I had never been instructed in any way (formally or informally) by my letting agency or my
landlord that I would need to contact any third party to park in an area designated for
tenant use only (or their guests)
6. As such, it was my understanding that I – as a tenant – could use the parking area and that I
could also permit my guests to use it for a short ;me as I had been provided permission to
park by my landlord who in turn is enitled to rely upon his primacy of contract within his
lease in order to grant his tenants an unfettered right to park. My contract was with my
landlord only and I have or had no contract with the claimant prior to the incident in May
2015 and as such they have no standing of claim against this vehicle
7. The vehicle was parked as per my shorthold tenancy agreement (referenced in paragraph 4)
8. The 1st contact with the claimant was in July of 2015 when I received an un-solicited letter
from the claimant, post the incident of May 2015, when I received the official parking
permits [2]
9. I believe that the facts stated in this witness statements are true
References
[1] – Assured Shorthold Tenancy Agreement
[2] – Letter from VCS with parking permits


i am the defendant as the owner of the vehcile so have prepared the following WS


I, NAME, Defendant in this case, deny liability for the entirety of the claim.

1. This matter relates to a parking charge issued to my vehicle (registration: XXXX) on DATE. It is admitted that at all material times the Defendant is the registered keeper of this vehicle.

2. I confirm that my vehicle was parked in a bay belonging to ADDRESS. The vehicle was parked there by invitation from the tenant residing at this address at the material time. See Witness statement from xxxxxxxx.

3. It is denied that the Defendant was the driver of the vehicle. The vehicle is insured for several people to drive it at any time (see ITEM X). The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the Defendant as driver rather than keeper, then they must produce strict proof.
a. In light of this, the claimant may only pursue the defendant as keeper of the vehicle in strict adherence to the stipulations outlined by Schedule 4 of the Protection of Freedoms Act 2012 (POFA 2012).
4. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

5. The arbitrary addition of a fixed sum purporting to cover 'recovery costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

6. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process. A copy of the brochure of the debt recovery shows they operate a’no recovery no fee’ policy (SEE ITEM X)

7. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

7.1. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim
8. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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 an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

8.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

8.2. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

8.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

8.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

The POFA 2012 and the ATA Code of Practice are against this Claim
9. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) 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' (further, 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.

The Consumer Rights Act 2015 ('the CRA') is against this claim
10. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

10.1. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

10.2. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

10.3. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

10.3.1. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''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 the Beavis case. 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...''

10.3.2. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

10.3.3. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

10.3.4. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply this this claim.

10.3.5. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

10.4. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

10.5. The definition of a consumer notice is given at 1.19 and the test of fairness is expended at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. 1.20 Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

11. 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, harassing and indeed untrue in terms of the added costs alleged and the statements made.

12. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

13. If this claim is not struck out for the same reasons as the Judges cited in the multiple Caernarfon and Southampton cases, then full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

14. Therefore, liability for the alleged debt is disputed in its entirety based on the well-established legal principle of primacy of contract: the agreement (ITEM X) that exists between the tenant and their landlord extends to the use of the specified parking space and overrides any purported contract conveyed by the claimant’s insufficient, demonstrably illegible signage (Items X). The tenant’s contract makes no assertion that a permit must be displayed to use the bay, nor that a penalty of £100 must be paid in the event of a failure to do so (Item X, pages xyz). The tenancy agreement’s lack of specificity on any conditions related to parking in the relevant bay can only be construed that none of the restrictions asserted by the claimant apply.

15. I contend, therefore, that the tenant’s agreement provides an unfettered right to park in their assigned bay for themselves and their invited guests. This cannot be superseded, altered, or ignored by a parking management company post hoc.

16. In relation to the lease, which underpins the conduct of tenancy I will refer to the following judgments which refer to the fact that the terms of a lease cannot be altered without formal consultation, and taking the appropriate steps.

17. I cite as Authority, the Judgment in the Appeal case of Jopson v Homeguard Services [2016] B9GF0A9E, Oxford County Court, 29 June 2016 (Appended as Exhibit J). In his Judgment, HHJ Harris QC states, at [18]: ‘It therefore seems clear to me that the respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease …’ and this Senior Circuit Judge commented that life in a block of flats would be unworkable if authorised access to properties by parties entitled to that grant, were to be subject to a penalty.

18. A similar case was recently heard at Croydon County Court, in PACE Recovery & Storage v Mr N (C7GF51J1) (Appended as Exhibit K), where District Judge Coonan stated in her Judgment at [18] ‘I have to be satisfied that the contract has been varied to include such a provision and I am not satisfied because I am not satisfied that clause 6(3) was complied with at any relevant stage. Therefore, the tenancy agreement takes precedence over the arrangement between Sutton and yourself, the claimant, Pace Recovery. As I have said, it is a pure matter of contract that I have to decide. Therefore, the claim is dismissed’.


Statement of Truth:

I believe that the facts stated in this Defence are true.


Name




i would appreciate some opinions on this case and appreciate any feedback, particularly trying to knit all the points together

The_Deep

Have you considered a counter claim, imo they will struggle if they persist.