Advice needed please -

Le_Kirk

The parking company will see your defence eventually. There is no such thing as a registered driver but if the judge asks were you driving you cannot lie.

Wanderingbamp

Hello,I have received one of these claim forms and it’s dated 2015,but as I haven’t visited berry head since I struggled with the hill the last time back in 2012 it must have been driven by friends or family,it’s used a lot for fishing trips and all users will have paid for parking and any damage to the vehicle as I cannot afford to cover these.
I have done the acknowledgement and have now finally done the defence,I am shocked to see how predatory this Premier Parking is and would it be beneficial to add the various bits of info to my defence before I send it off
Such as the recinding of the council in April 2016
No permission for erecting the camera etc

Umkomaas

Wanderingbamp wrote: »

Hello,I have received one of these claim forms and it’s dated 2015,but as I haven’t visited berry head since I struggled with the hill the last time back in 2012 it must have been driven by friends or family,it’s used a lot for fishing trips and all users will have paid for parking and any damage to the vehicle as I cannot afford to cover these.
I have done the acknowledgement and have now finally done the defence,I am shocked to see how predatory this Premier Parking is and would it be beneficial to add the various bits of info to my defence before I send it off
Such as the recinding of the council in April 2016
No permission for erecting the camera etc

Please open a new thread of your own as mixing advice to two posters will confuse matters. Forum requires one case, one thread to avoid advice going astray.

The NEWBIES FAQ sticky, post #2 is your Bible for dealing with everything from here forward.

[Deleted User]

IN THE COUNTY COURT
Claim No.: XXXXXXXX
Between

PREMIER PARK LIMITED
(Claimant)

-and-


[NAME OF DEFENDANT]
(Defendant)

.
DEFENCE
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. Due to the sparseness of the Particulars of Claim it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, 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 when parking at Berry Head on 19/07/15. The Particulars of Claim do not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle, neither has a period of parking been identified. 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
3. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £85 'Parking Charge Notice ('PCN')'.
4. The Defendant is the registered keeper of the vehicle in question but reserves the right not to name the driver, yet still not be held liable if the Claimant is not using or complying with Schedule 4 of the Protection of Freedoms Act 2012 (‘the POFA').
5. Berry Head car park was subject to a local Traffic Regulation Order from the period 11th March 2013 until revocation of the Order on 24th August 2016. On the material date Torbay Council was responsible for enforcement and not the Claimant. There can be no ‘keeper liability’ in this matter as the land was ‘not relevant land’ and subject to statutory control.
6. Further and in the alternative ‘keeper liability’ under Schedule 4 of the POFA is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice and/or Notice to Keeper failed to comply with the statutory wording and/or deadlines set by the POFA. Any non-compliance voids any right to ‘keeper liability.
7. The Claimant is put to strict proof of full compliance with the British Parking Association (‘BPA’) Code of Practice - Written Authorisation of the landowner. As the Claimant does not have proprietary interest in the land then the Defendant requires that they produce an unredacted copy of the contract with the landowner. If an operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken. The written authorisation must also set out:

a the definition of the land on, so that the boundaries of the land can be clearly defined
b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d who has the responsibility for putting up and maintaining signs
e the definition of the services provided by each party to the agreement
8. The car park in question has no clear signage to explain what the relevant parking restrictions are. The Claimant is put to strict proof of compliance with BPA Code of Practice. The Defendant submits the Claimant has not met full compliance which means no contract can be formed with the driver and all tickets have been issued unlawfully.
9. BPA Code of Practice states it should be made absolutely clear to the driver that ANPR technology is in place, and the purposes of its use. The Claimants use of ANPR is inadequately signposted, signage is not transparent, nor does it communicate what data captured will be used for. ANPR cameras also capture vehicles on a public highway. The Defendant cannot ascertain the driver entered Berry Head car park as images show the vehicle on the public highway. Further and in the alternative, the images do not demonstrate that the vehicle was parked in an unauthorised way.
10. The Particulars of Claim state that the Claimant is also claiming £60 contractual costs, pursuant to PCN Terms and conditions, the Defendant puts the Claimant to strict proof that contractual costs were specified on the PCN. Further and in the alternative the Defendant submits that these costs have not actually been incurred by the Claimant and appear to be an attempt at double recovery.
11. Costs on the claim - disproportionate and disingenuous:
- 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.
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.
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. 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.
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.
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' £85.00 in this case (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.
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:
The Judge 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 Parking Eye 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. 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. The Claimant would have been fully aware that up until the revocation of the Order Premier Park Limited, should not have been issuing PCN’s and did not have standing or authority to pursue charges or to form contracts with drivers using Berry Head car park, but has continued to pursue the Defendant.
13. 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.


Statement of Truth:

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


Name

Signature


Date

[Deleted User]

Please could someone read through my draft defence.

Many thanks

Le_Kirk

a the definition of the land on, so that the boundaries of the land can be clearly defined

This does not make sense, is there something missing such as: -

the definition of the land on which the car park is situated

or similar.

Otherwise, it seems to cover all the usual points including the correctly quoted Abuse of Process.

RobinofLoxley

9. BPA Code of Practice states it should be made absolutely clear to the driver that ANPR technology is in place, and the purposes of its use. The Claimants use of ANPR is inadequately signposted, signage is not transparent, nor does it communicate what data captured will be used for. ANPR cameras also capture vehicles on a public highway. The Defendant cannot ascertain the driver entered Berry Head car park as images show the vehicle on the public highway.[B] Further and in the alternative, the images do not demonstrate that the vehicle was parked in an unauthorised way.[/B]

I think this needs tidying up. The point that the ANPR photos actually show the vehicle on the public highway and do not provide proof that the vehicle was in the car park should maybe be emphasised and be more prominent in your defence. You can also include photos that show the place the vehicle was captured by PP's ANPR is not in the car park.

You also say, "The Defendant cannot ascertain the driver entered Berry Head car park" but in your point 2. you contradict this by saying "However, 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 when parking at Berry Head on 19/07/15". Which admits the driver was parked there.

6. Further and in the alternative ‘keeper liability’ under Schedule 4 of the POFA is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice and/or Notice to Keeper failed to comply with the statutory wording and/or deadlines set by the POFA. Any non-compliance voids any right to ‘keeper liability.

You need to show why the NTK does not comply with POFA i.e. how the wording differs to how it should be as prescribed by paragraph 9(2)(f) of Schedule 4 POFA.

[Deleted User]

RobinofLoxley wrote: »

I think this needs tidying up. The point that the ANPR photos actually show the vehicle on the public highway and do not provide proof that the vehicle was in the car park should maybe be emphasised and be more prominent in your defence. You can also include photos that show the place the vehicle was captured by PP's ANPR is not in the car park.

You also say, "The Defendant cannot ascertain the driver entered Berry Head car park" but in your point 2. you contradict this by saying "However, 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 when parking at Berry Head on 19/07/15". Which admits the driver was parked there.


You need to show why the NTK does not comply with POFA i.e. how the wording differs to how it should be as prescribed by paragraph 9(2)(f) of Schedule 4 POFA.

Hello I must admit over the days having digested and understood more , I became unhappy with the defence and have amended it . Please see below :
I am unable to expand fully on why the NTK does not comply as I do not have this document . I have done a SAR to PP , they made excessive demands for ID and with advice of the ICO a complaint has been registered. I contacted BWlegal and requested a copy of all evidence that they intended to rely on in court. The response I received was that they did not have it and would contact their client. When I questioned that surely BWlegal must have considered the evidence before they issued proceedings, BWlegal said they relied on advice from their client!!!!!PP have also been reported for breach of trading disclosure regulations as I suspect that their letter head does not conform .
I have asked Land Registry for a copy of the original lease between Torbay Council and Torbay Coast and Countryside Trust . I believe the main car park was never included in the lease.
.
DEFENCE
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Defendant is the registered keeper of the vehicle in question but denies any liability in respect of the claim. The vehicle is insured for multiple drivers. The Defendant was not the driver on the material date and therefore could not have entered into any contractual agreement with the Claimant.
3. Due to the sparseness of the Particulars of Claim it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. The Particulars of Claim do not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle, neither has a period of parking been identified. 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.
4. The Defendant reserves the right not to name the driver.
5. The Protection of Freedoms Act 2012 (‘the POFA') Schedule 4 – ‘recovery of unpaid parking charges’ states in order to transfer the charge to the Registered Keeper strict conditions are required to be met and non-compliance voids any right to ‘keeper liability. The Defendant submits that compliance is not met and the Claimant is unable to transfer liability for the charge to the Registered Keeper: -
a. Contrary to the requirements of paragraph 3 (1) Berry Head car park was not ‘relevant land’ and was subject to statutory control - the “Borough of Torbay (Torbay Coast & Countryside Trust) (Off Street Parking Places) Order 2013. The only organisation authorised to enforce parking and issue ‘tickets’ was Torbay Council until Revocation Order made on 31.08.1.
b. The Claimant is put to strict proof that the Parking Charge Notice and/or Notice to Keeper complied with the statutory wording and/or deadlines- paragraph 9(2)(f) of Schedule 4 POFA.
c. The Defendant submits that the Claimants signage at the site entrance is inadequate and not capable of creating a legally binding contract. In the absence of ‘adequate notice’ of the terms of charge the Claimants signage fails to meet the requirements of Schedule 4 of the POFA. It is noted the BPA Code of Practice standards point 18 defines the standards for signage.
6. The British Parking Association (‘BPA’) Code of Practice details the practice standards for organisations carrying out parking control and enforcement on private land. Practice point 7 refers to ‘written authorisation of the landlord’. The Claimant is put to strict proof (i.e. un redacted copy of the contract) that it has sufficient proprietary interest in the land and that it has the necessary authorisation from the landowner, Torbay Council, to issue parking charge notices and pursue payment by means of legal action.
7. The BPA Code of Practice point 20.5a outlines ‘when issuing a parking charge notice photographs may be used as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident was unauthorised and a date and time stamp should be included on the photograph. All photographs should be clear and legible and must not be retouched or digitally altered’. The Defendant cannot ascertain that the driver entered the carpark as the Claimants photographs show the vehicle on a public highway and not entering or exiting the car park. The photographs do not demonstrate that the vehicle was parked in an unauthorised way. The exit photograph is not evidence of 'parking time' and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same claimed parking event.
8. The BPA Code of Practice point 21 stipulates it should be made absolutely clear to the driver that ANPR technology is in place and the purposes of its use. However, the Claimants use of ANPR is not signposted, signage is not transparent and it does not communicate what data captured would be used for.
9. The Defendant would point out that this carpark should be fully distinguished from the details, facts and location in the Beavis case. This car park does not offer a free parking licence, nor is there any comparable 'legitimate interest' nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015 where signage was 'clear and prominent' and created a contract Mr Beavis was 'bound to have seen'.
10. Costs on the claim - disproportionate and disingenuous. The Claimant is claiming the sum of: -
a. £129.20 in respect of PCN (£85.00), this figure includes an unexplained charge of £44.20.
b. £29.20 calculated as four years interest from 17.07.15, the court is urged to disallow this charge since the delay in proceeding to court in this instance is the Claimant's alone.
c. £60.00 the Claimant describes this figure as contractual costs pursuant to PCN Terms and Conditions, the Defendant points out that the PCN was not the contract and puts the Claimant to strict proof that contractual costs were specified on the signage.
Further and in the alternative the Defendant submits that these costs have not actually been incurred by the Claimant and appear to be an attempt at double recovery:-
- 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.
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.
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. 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.
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.
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' £85.00 in this case (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.
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:
The Judge 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 Parking Eye 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...''
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.


Statement of Truth:

I believe that the facts stated in this Defence

Name

Signature

Coupon-mad

Just back from a break!

I will dig out some photos for you treetops, ready for your Witness Statement & evidence stage later on.

4. The Defendant reserves the right not to name the driver and no adverse inference can be drawn from exercising this right conferred by Parliament during the reading of Section 56 (now Schedule 4 ) of the Protection of Freedoms Act 2012 (‘the POFA') in 2012, where it was confirmed that it was not appropriate and a indeed step too far, for a keeper to be compelled to name a third party driver to a member of the notorious private parking firm industry. As such, the matter remains one relating to an alleged contract and the Defendant was not a party to it and cannot be held liable under any applicable rule of law, nor can any presumption nor reliance upon the law of agency be made because he driver was not acting on behalf of the Defendant at this location.

5. The POFA, Schedule 4 – ‘recovery of unpaid parking charges’ states in order to transfer the charge to the Registered Keeper strict conditions are required to be met and non-compliance voids any right to ‘keeper liability'. The Defendant submits that compliance is not met and the Claimant is unable to transfer liability for the charge to the Registered Keeper, for several reasons including, but not limited to:

The alleged exit photograph

...and #10 is too long and the paragraphs below it all need their own number; they are not intended to be one single paragraph.

[Deleted User]

Hi I have obtained a copy of the 1999 leasing of Berry Head from Torbay Council to Torbay Coast and Countryside Trust. Attached to the lease is a plan which shows the main car park WAS NOT included in the lease.

The overflow car park was included this is essentially a field. The lease states - Access to over flow car park - excepting and reserving to the Landlord the right as and when required to use the overflow car park shown hatched on the plan for the purpose of parking cars and other permitted vehicles subject to such vehicles having paid the appropriate pay and display parking fee.

The significant fact that the car park was not included in the lease seems to have been overlooked by Torbay Coast and Countryside Trust who contracted Premier Park and now Euro Car Parks .

I have contacted Torbay Coast and Countryside Trust but they have ignored 2 x letters and 2 x emails. Which I am really annoyed about.

Please can I ask a couple of questions.

1. The Borough of Torbay (Torbay Coast & Countryside Trust) (Off Street Parking Places) was not revoked until 24th August 2016. Premier Park were 'contracted' circa June 2015, does it mean that all PCN's issued by Premier Park from June 2015 to August 2016 potentially MAY HAVE BEEN UNLAWFUL.

2. The main car park was not included in the 1999 leasing of land, does this mean that all PCN's issued from June 2015 until to date potentially MAY BE UNLAWFUL.

I understand this is not a legal forum , but potentially 1000's of pcn's could have been issued to unsuspecting motorists.

If someone could indicate that I am on the right track with my thinking that would be helpful.