UK CPM PCN for parking visitor's space - County Court Claim

willber92

Hi all,

Would really appreciate some advice and opinion on my Defence that I've just written, I have around 28 days left to submit it but just wanted to get ahead to give me ample time to strengthen and build upon it.

First, a bit of background on the case:

- November 2017: The driver parked in an unmarked visitor's bay outside a friend's flat, unaware of any parking restrictions. A couple of weeks later, received a PCN from UK CPN, claiming I owed them £100 for "not displaying a valid permit", and stated that "the terms and conditions of parking on this private land are clearly set out on the signage installed within the car park" . In the photos they provided in the dark (taken by a busybody resident who'd reported the vehicle) they were no signs visible that displayed any parking terms.

- After reading advice online, I decided to not appeal the charge formally (maybe the wrong decision) but sent a letter to their head office to dispute the claim and explained the complete lack of signage, and also supplied them with photographic evidence that my friend sent me, showing from various angles that they were no signs anywhere near where the driver was parked. One photo he sent circled the nearest sign (which was presumably at the entrance to the road) which was around 20-30 metres away. There were also absolutely no road markings to imply that where I had parked might be restricted in anyway. Within this correspondence I also requested that they immediately cease and desist from using my personal data due to them obtaining it without reasonable cause, and that the DPA requires them to respond within 21 days to respond.....they didn't of course!

- February 2018: I received my first (of a few) letters from DRP. At this stage I sent another letter directly to UK CPM (this time using first class recorded delivery, stupidly forgot previously....I know!) denying the charge and again showing them photographic evidence of the clear lack of signage. They again ignored this, and I continued to get letters from DRP for a few months.

- September 2018: After receiving a couple of letters from Gladstones Solicitors in the months preceding, they sent me a LBA. I wrote a response to it through their website, as well as sending a letter recorded delivery to them, explaining that they have failed to provide any evidence showing that there was adequate signage. I then went on to highlight the missing information required in a Practice Direction compliant LBA, and ended with "Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided."

- May 2019: Just when I thought all was done and dusted, I received another LBA from Gladstones, which was exactly the same as the one before, with the added line "We have enclosed all documents further to your correspondence of Xth September and apologise for the delay. Needless to say, they didn't enclose anything! I ignored this as I had already said all I could and hoped they would drop it at this point.

- 18th July 2019: Received the County Court Claim form (with the issue date of 17th July), and here we are!

So as I mentioned before, I've drafted my defence, using bits from others and tweaking them slightly to suit my circumstances. It feels very brief but I'm not sure what else needs to be said, as my primary defence is the lack of signage. Would really appreciate some advice and any pointers on what could be done to improve it, based on the information above. Have also included the Particulars of Claim from the claim form for some context with my defence.

Particulars of Claim:

The driver of the vehicle with registration xxxx ('the Vehicle') parked in breach of the terms of parking stipulated on the signage (the 'Contract') at xxxxxx xxxxx, on 25/11/2017, thus incurring the parking charge (the 'PCN'). The driver of the Vehicle agreed to pay the PCN within 28 days of issue yet failed to do so. The Claimant claims the unpaid PCN from the defendant as the driver/keeper of the Vehicle. Despite demands being made, the Defendant has failed to settle their outstanding liability. THE CLAIMANT CLAIMS £100 for the PCN, £60 contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest of £20.01 pursuant to the s69 of the County Courts Act 1984 at 8% per annum, continuing at £0.04 per day.

---

In The County Court
Claim No:
Between
UK Car Park Management Ltd (Claimant)

-and-

Mr xxxxx xxxxxxx (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper of vehicle registration number xxxxx on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. No signage was visible in the area where the alleged contravention occurred and therefore the driver did not enter any contract with the claimant. There were also no road markings.

3. It is denied that “the Driver of the Vehicle agreed to pay the PCN within 28 days of issue yet failed to do so” as stated in the Claimant’s particulars. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.

4.. The Claimant has not complied with the pre-action protocol under the Practice Direction as a compliant ‘Letter Before County Court Claim’ was not issued. Despite a request by the Defendant to receive a compliant letter, one was not sent before court proceedings were started.

5. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

6. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:
I believe that the facts stated in this Defence are true.

Name
Signature
Date

KeithP

Delete your Claim Number from your post.
Delete your vehicle's registration from your post.
They uniquely identify you and your incident.

You say you received the County Court Claim form on 17th July 2019, but what is the Issue Date on your Claim Form?

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

willber92

Doh....thanks for alerting me to that, it's now been rectified.

Apologies, it was actually received on the 18th July, and the issue date was the 17th July. It's come from the County Court Business Centre in Northampton.

Also forgot to add - I did my acknowledgment of service yesterday, so have until the 18th August to submit my defence.

KeithP

willber92 wrote: »

The issue date was the 17th July. It's come from the County Court Business Centre in Northampton.

With a Claim Issue Date of 17th July, you have until Monday 5th August to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 19th August 2019 to file your Defence.

That's four weeks away. Loads of time to produce a perfect Defence, and it is good to see that you are not leaving it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

willber92

Thanks for the advice, and I did try and get ahead and get my bearings by going through the newbies thread, definitely don't want to leave it til the last minute!

So AOS my has been submitted, and I've been researching similar cases and their defences to start to pull mine together, so any feedback on it in my original post would be greatly appreciated so I know whether I'm on the right track.

[Deleted User]

Read PACE v Lengyl. On that case alone, it's worth adding in the concept of impossibility, assuming:

1. You had no permit
2. You were not entitled to a permit
3. Your mate had no visitor permit and/or could not possibly have lent you one.

Many of the standard UK CPM signs for residential sites levy a charge for a beach of contract not for parking per se, which is reserved only for residents.

No offer = no contract = no penalty charge.

That's the loose concept, which was applicable to my case. Each case and parking site is different, do read lots and form the best defence you can.

willber92

Unfortunately I failed the criteria when I got to point no. 3! He did have visitors permits, but forgot or thought it would be fine at that time, I was genuinely completely unaware of any parking restrictions, and so it was a complete shock when the PCN turned up in the post.

willber92

I've just added the Particulars of Claim to my original post for context with my defence, and feedback and pointers would be really appreciated so that I can refine it over the next couple of weeks!

willber92

I've been spending alot of time on fleshing out my defence, would be appreciated to have some feedback on it and to know if it's good to go so that I can get it signed and submitted in good time!

In The County Court
Claim No: xxxxxx
Between
UK Car Park Management Ltd (Claimant)

-and-

xxxxxx (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper of vehicle registration number xxxxx on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. Rebuttal of Claim
It is denied that any 'debt' exists that could lead to a claim in law. In the alternative, if a debt is considered by the court to exist, then I am not liable because:

a) It is disputed that the Claimant's signage was adequate such that any driver entering the site could be reasonably have expected to have seen them for the following reasons:
- There was no signage upon entering the site to alert the driver of any parking restrictions (Ref. image Location 5.jpg)
- The nearest signage to where the alleged contravention took place was approximately 30m away (Ref. image Map.jpg)
- There were no road or kerbside markings to indicate any form of parking restrictions (Ref. image Location 1.jpg)
- Such limited signs that did exist (eg. 30m away) were not sufficiently illuminated at night as required by the IPC code of practice when the alleged contravention occurred, and therefore not visible once the Driver had parked. Any street lighting nearby only served to backlight the signs but not clearly illuminate them, either when passing or once parked (Ref IPC_Code-of-Practice.pdf, P23 ‘Contrast and illumination)
- The bottom of the sign is over 6’ from the ground which renders it incapable of being clearly seen (Ref. image Sign 1.jpg)
- The signage does not identify the Claimant as ‘the Creditor’ as required by the IPC code of practice (Ref IPC_Code-of-Practice.pdf P24, & image Sign 2.jpg)

b) For the reasons above, the signage was not seen by the Driver and therefore no contract can be deemed to exist.

3. It is denied that “the Driver of the Vehicle agreed to pay the PCN within 28 days of issue yet failed to do so” as stated in the Claimant’s particulars. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did. I, as the registered Keeper of the Vehicle at the time of the alleged parking contravention, never agreed to pay the PCN and have repeatedly challenged the basis for the claim in numerous instances of correspondence.

4. Further to the above rebuttal, I have sent numerous communications to the Claimant to which they have not responded at all, despite me providing photographic evidence to my rebuttal. See attached (Ref. Letter 3.pdf)
The Claimant has also repeatedly ignored my appeals against the alleged parking contravention.

5. Correspondence with the Claimant’s Solicitors has failed to elicit a timely response. The most recent of these which I received was dated 1st May 2019, in which the Claimant’s Solicitors apologised for the delay in responding to my letter dated 3rd October 2018. In addition, they stated that they had enclosed various documents that I had requested sight of in order that they comply with the pre-action protocol under the Practice Direction as a compliant ‘Letter Before County Court Claim’ was not issued. However, no such documents were enclosed and so this request is still unfulfilled.

6. The POFA, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

7. No evidence has been supplied by this Claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under the Act, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott vs Loake (1982) in which there was irrefutable evidence of the driver’s identity.

8. The POFA, at Schedule 4, Section 9 (5) & (6) states that the Notice to Keeper must be delivered within the relevant period of 14 days from the date of the alleged contravention, but the Notice to Keeper is presumed to have arrived on the 11th December 2017, based on the issue date of the Notice to Keeper being 7th December 2017.

9. Furthermore in light of the above, I believe there was no legal basis to obtain my personal data from the DVLA. The Claimant failed to respond to my letters of 19th December 2017 and 15th January 2018 where I requested them to cease processing my personal data or to explain why they would not comply within 21 days, as required by the Data Protection Act. (Subject 10 Data Subject Notice).

10. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety. The Claimant is in breach of it’s industry body’s code of practice for parking regulation, as the signs at the time of the alleged parking contravention were insufficient in terms of their numbers, distribution, wording and lighting to reasonably convey a contractual obligation and did not in any event at the time comply with the requirements of the Code of Practice of the International Parking Community’s Accredited Operators Scheme, a signatory to which the Claimant was at the relevant time.

Statement of Truth:
I believe that the facts stated in this Defence are true.

Name
Signature
Date

Coupon-mad

then I am not liable because:

See attached (Ref. Letter 3.pdf)
The Claimant has also repeatedly ignored my appeals

No attachments, no evidence and no ''I'', ''me'' or ''my'' go into this stage.

You can certainly use PACE v Lengyel and talk about impossibility, as the driver did not have a permit and knew nothing about how to get one.

Search the forum & copy & adapt those defences, as this needs more work IMHO!

Also you haven't attacked the costs like we do now. See my reply in beamerguy's Abuse of Process thread, and add para numbers when adding the already-written wording at the end.

willber92

Thanks for the advice, I'll rectify that and have another stab at it later, presumably just replace all the 'I' 'me' and 'my''s with 'the Defendant'?

Johnersh also suggested using the concept of impossibility in my defence, but I believe it isn't applicable to me as I was visiting a friend who did have access to a visitor permit, but just didn't offer it to me or alert me to the fact that one was required.

Based on that should I still go down the route of insufficient signage as I have been doing and just add in the Abuse Of Process section from Beamerguy's case to dispute the additional £60?