This is a tough one!

Blazkowicz

Hi Keith,
Thanks I'll try with another computer.
I've tried adapting a lot of those defences, but their main arguments normally pertain to being a tenant however tenancy involves a tenancy agreement that would refer to and expressly authorise use of the space. There was no such agreement with the freeholder - they never established terms with the Estate Agent further than the tacit agreement created by the invoices paid.
Also - the driver was not a 'tenant' but parking there as an employee of the Estate Agency who, having paid, were land-holders.

Coupon-mad

In 2015 I was employed by an Estate Agency.
This Estate Agency paid, in advance, for two numbered spaces in a flat block car park to be used by employees. The payments were made to the freeholder. There was no written contract – simply the invoices to pay for the space (I have the invoice for the time covering the PCN and email from freeholder confirming it was settled in full).

Great, so you were relying upon a pre-existing contract with the owner/landholder that pre-dated the infestation of PP, and which gave you the right as an employee to park there.

Renting a parking space is a 'distance' contract as defined here in EU law:

https://ec.europa.eu/info/sites/info/files/crd_guidance_en_0.pdf

Whereas the rental of accommodation for residential purposes is excluded from the scope of the Directive, the rental of accommodation for non-residential purposes is covered. This is also explained in Recital 26: '[…] Service contracts in particular those related to the construction of annexes to buildings (for example a garage or a veranda) and those related to repair and renovation of buildings other than substantial conversion, should be included in the scope of this Directive, as well as contracts related to the services of a real estate agent and those related to the rental of accommodation for non-residential purposes.'

- For example, renting a parking space or a party hall is subject to the Directive.

So, you can argue in an early defence section about 'the facts' that:

The Estate Agency paid, in advance, for two numbered spaces in a flat block car park to be used by employees. The payments were made to the freeholder. There was no written contract – simply the invoices to pay for the space and the Defendant will adduce in evidence the invoice for the time covering the PCN and email from freeholder confirming it was 'settled in full'.

This distance contract was agreed without any obligation to display a permit, nor risk of paying any penalty. Additional clauses (especially not onerous and punitive ones) cannot be added after the contract's effect and in any case this Claimant was not a party to the agreement, which gave Estate Agent employees a licence to park, and represented indisputable primacy of contract.

Whilst the Defendant displayed the permit as a courtesy when asked, there was no tacit or signed agreement to vary the terms of the parking space rental. Thus, there is no cause of action.

The Claimant's legal robo-claim firm have stated that ''By parking your vehicle in the car park you have entered into a unilateral contract with our Client''. The existence of any 'relevant contract' or 'relevant obligation' as defined in the Protection of Freedoms Act 2012, Schedule 4 is denied and in this case the ParkingEye Ltd v Beavis [2015] UKSC 67 case is fully distinguished.

The Defendant did not breach any term of the distance contract and any term not stated at the time the rental commenced, is unenforceable. Whilst this is trite law, the statutory authority for this is the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which were enacted to comply with Directive 2011/83/EU of the European Parliament, laws which apply to service contracts, including (as confirmed by the EU Guidance specifically) 'renting a parking space'. The Defendant is a consumer, not a company, so is entitled to rely upon enacted consumer law.

Further and in the alternative, the permit was in any case, displayed, and the Claimant's operative chose angles for photographs which negligently or deliberately caused sun glare to cover the place where the permit actually was on the dashboard. More than one PCN was issued in this disingenuous way, with duplicate facts, and the second one appears to have been dropped.

However, if the other PCN is later the subject of a second court claim then the Defendant will ask that the hearing be consolidated, and or if the Defendant has already prevailed in court once for the first PCN (the subject of this claim) the court will be asked to strike out any second claim or order that the decision covers both an that the second PCN cannot be pursued.

Plonk that into bargepole's concise defence example, then add as the ending, the paragraphs I wrote in post #14 of beamerguy's Abuse of process thread about fake added damages/costs.

Number them all then show us how it looks.

Blazkowicz

Thank you so much Coupon-mad. Honestly I don't know how you all do it - there have been 7 pages of posts/threads since I posted this and all of them are being given time and attention. Very much appreciated. I'll put the defence together and put it on here once it's done.

Blazkowicz

One thing to note:
In the costs paragraph from post #14, point 4 - it states:
"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."
If by "particulars" this means the Claim Form - this *is* signed by a person that I have identified as a Supervising Solicitor (by way of research on Linked In).
So should I leave this part out?

Quentin

Obviously when cribbing you leave out anything irrelevant to your case!

Coupon-mad

Yes, leave it out. BW Legal have recently started to add a name.

Blazkowicz

Thanks both, sorry if it was a silly question - I'm keenly aware that it's so easy to slip up in these situations!
I have also taken out the paragraph from bargepoles defence that states:
"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." etc...
This is a great point, however the particulars (if this refers to the section on the Claim Form) do not make such comments.

Coupon-mad

That's fine too.

Blazkowicz

IN THE COUNTY COURT

CLAIM No: *********

BETWEEN:

********************* (The Claimant)

-and-

********************* (The Defendant)

DEFENCE


Preliminary

1. The Particulars of Claim lack specificity. 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 unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract with the freeholder 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. The Defendant further notes the Claimant's failure to fully engage in the pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background

3. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark ************** which is the subject of these proceedings.

4. It is admitted that on the ********* 2015 the Defendant's vehicle was parked at *************; with a visible and valid permit. The vehicle was parked within the allocated space – numbered ‘**’ – which was leased to the company whom the defendant was employed by. This company being *************************

5. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

5.2.1. There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

5.2.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

5.2.3. It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract

6. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

6.1. It is denied that the Defendant was in breach of any parking conditions or were not permitted to park. An express permission to park had been granted to the Defendant permitting the above-mentioned vehicle to be parked by the freeholder, whose company had paid – in advance – for the rental of the above-mentioned space numbered ‘***’. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the direct agreement with the freeholder, which cannot be fettered by any alleged parking terms which would form an unenforceable secondary contract. The paid lease of the space numbered ‘***’ provided the right to park in the relevant allocated bay by any employee of the above-mentioned Estate Agency, without limitation as to type of vehicle, ownership of vehicle, or the user of the vehicle. A copy of the advanced payment invoice has been provided to The Claimant and ignored, and will be provided to the Court, together with direct confirmation in writing from the freeholder that this invoice was fully settled and thus full and unfettered use of the parking space numbered ‘**’ was granted and authorised at the time of parking.

6.2. The agreement between the Estate Agency and the freeholder constituted a distance contract subject to Directive 2011/83/EU, which agreed without any obligation to display a permit, nor risk of paying any penalty. Additional clauses – especially onerous, punitive and/or contradictory ones – cannot be added after the contract's effect and in any case this Claimant was not a party to the direct agreement which gave the Estate Agent’s employees full authority to park and thus represented indisputable primacy of contract.

7. Whilst the Defendant displayed the permit as a courtesy when asked, there was no tacit or signed agreement to vary the terms of the parking space lease agreement. Thus, there is no cause of action.

8. The Claimant's legal ‘robo-claim’ firm have stated that ''By parking your vehicle in the car park you have entered into a unilateral contract with our Client''. The existence of any 'relevant contract' or 'relevant obligation' as defined in the Protection of Freedoms Act 2012, Schedule 4 is denied and in this case the ParkingEye Ltd v Beavis [2015] UKSC 67 case is fully distinguished.

9. The Defendant did not breach any term of the distance contract with the freeholder and any term not stated at the time the rental commenced, is unenforceable. Whilst this is trite law, the statutory authority for this is the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which were enacted to comply with Directive 2011/83/EU of the European Parliament, laws which apply to service contracts, including (as confirmed by the EU Guidance specifically) 'renting a parking space'. The Defendant is a consumer, not a company, so is entitled to rely upon enacted consumer law.

10. Further and in the alternative, the permit was in any case, displayed in full view within the vehicle. It being hot weather, the permit was placed at the front of the central console to avoid it being blown off the windscreen area by wind or air conditioning. The Claimant's operative evidently chose angles for photographs which negligently or deliberately caused sun glare and obstruction to cover the place where the permit actually was in the vehicle. Another PCN was issued in this disingenuous way, with duplicated allegations, and this PCN appears to have been dropped and pursual discontinued. The Defendant will provide a photograph taken by an operative of The Claimant and recorded as their evidence in this other PCN. This photograph clearly shows that the permit was fully visible through the window of the vehicle. The Defendant invites the court to note that the very fact The Claimant would not only issue a PCN but proceed in pursuing it legally when they themselves hold photographic evidence that the permit was visible within the vehicle, is unequivocal example of their unreasonable and vexatious business practice. It also corroborates The Defendants assurance that the permit was visible within the vehicle at the time of the erroneously issued PCN.

10.1, If this other PCN is later the subject of a second court claim then the Defendant will ask that the hearing be consolidated, and or if the Defendant has already prevailed in court once for the first PCN (the subject of this claim) the court will be asked to strike out any second claim or order that the decision covers both an that the second PCN cannot be pursued.

11. The reason for this parking company's presence on this site can only be for the sole purpose of deterring parking by uninvited individuals, for the benefit of drivers authorised by the freeholder. However, in this case – contrary to consumer laws – this Claimant has carried out a predatory operation on those very individuals whose interests they are purportedly there to protect and uphold.

12. 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 freeholder to issue parking charge notices to the land-holders who have settled payment in full to park, and to pursue said payment by means of litigation even when provided with proof that said landholders are authorised to park on the freeholders land.

13. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by land-holders and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for by way of the lease of the parking space.

Alternative Defence - ParkingEye Ltd v Barry Beavis

14. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of 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.
14.1. The case of ParkingEye Ltd v Barry Beavis (2015) UKSC 67 differs from this case insofar as it pertained to a publicly accessible carpark that set a timeframe against levels of payment; thus incurring a charge should this timeframe be exceeded without further payment for parking being made. The only timeframe in this case is that which was determined by the advance payment to the freeholder for the quarter-year ahead. The Defendant has provided proof to The Claimant on more than one occasion that this payment for the lease of the parking space had been made in full and confirmation in writing from the freehold that the vehicle was parked well within the paid quarter-year.
14.2. The Defendant avers that the private site that is the subject of these proceedings is not a site where there is a commercial value to be protected. Neither the freeholder or the The Claimant has suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context.

Costs
15. It is denied that the Claimant has any entitlement to the sums sought.

15.1 It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

15.2 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.

15.3 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 are a standard feature of a low-cost business model and are already counted within the parking charge itself.

15.4 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 the case of 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.

15.5 Any purported 'legal costs' are fabricated 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 a qualified solicitor is likely to have supervised a significantly minimal duration of this current batch of ‘cut & paste’ claims.

15.6 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.

15.7 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.

15.8 Judges have disallowed all added parking firm 'costs' in County courts across 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...''

15.9 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.

15.10 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.

15.11 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.

16. 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 CPR 3.4.


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


Name


Signature


Date

Blazkowicz

I have also used some of the defence from the Jonersh post in the Residents Parking section of the NEWBIES thread.