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

willber92

Also just thought it would be worth adding (although I've completely neglected this as a route to explore until now) that in the photos they provided of the Vehicle, that the registration plate isn't even visible! Is it worth adding this into my defence?

hxtps://imgur.com/aA4T6G8

[Deleted User]

Even if you go down on the ticket, you should still be able to argue such that the £60 comes off (and the interest which they will have calculated on it).

I'd also ask the court to make "no order for costs" because although costs usually follow, if the £60 bolt on is excluded the claimant has failed to recover 40% of their inflated claim....

willber92

Thanks Johnersh, I've included the attack on costs that Coupon-mad suggested now, so think that base is covered. Here's my updated defence:

____________
DEFENCE
____________

1. The Defendant was the registered keeper of vehicle registration number xxxxxx 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 the Defendant is not liable because:

a)The signs erected on site were inadequate/illegible and not conforming to the IPC Code of Practice, for the following reasons:

- There was no signage upon entering the site to alert the driver of any parking restrictions
- The nearest signage to where the alleged contravention took place was approximately 30m away
- There were no road or kerbside markings to indicate any form of parking restrictions
- Such limited signs that did exist (eg. 30m away) were not sufficiently illuminated at night when the alleged contravention occurred
- Any street lighting nearby only served to backlight the signs but not clearly illuminate them
- The bottom of the sign is over 6’ from the ground which renders it incapable of being clearly seen
- The signage does not identify the Claimant as ‘the Creditor’

b) For the reasons above, the signage is therefore incapable for the purpose of forming the basis of a contract, and the Claimant Company has failed to comply with their obligations within the International Parking Community (IPC) Code of Practice, of which they are a member.

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. The Defendant never agreed to pay the PCN and have repeatedly challenged the basis for the claim in numerous instances of correspondence.


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. 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.

6. 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 which is the 25th November 2017, 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.

7. Furthermore in light of the above, there was no legal basis to obtain the Defendant’s personal data from the DVLA. The Claimant failed to respond to the Defendant’s letters of 19th December 2017 and 15th January 2018 where the Claimant was requested to cease processing The Defendant’s 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).

Costs on the claim - disproportionate and disingenuous
8. 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.

9. 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.

10. 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.

11. It is trite law that non-existent and untrue 'legal costs' are also unrecoverable. 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.

12. 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.

13. 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.

14. Many informed Court Court Judges have disallowed all added parking firm 'costs' in County courts, such as these cases, struck out in recent months without a hearing, due solely to the pretence of adding 'damages' blatantly made up out of thin air.

(a) In Claim number F0DP163T on 11th July 2019, District Judge Grand sitting at the County Court at Southampton, struck out a overly inflated (over the £100 maximum Trade Body and POFA 2012 ceiling) parking firm claim without a hearing for that reason.

(b) In Claim number F0DP201T on 10th June 2019, District Judge Taylor 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. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) where the abuse is inherent in the business model.

15. The Order was identical in striking out all such claims without a hearing. - The judgment for these three example cases stated:
''IT IS ORDERED THAT The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

16. 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.

17. 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.

18. 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

willber92

Just bumping this as would really be appreciated if I could have some feedback on my updated defence, so I can get it submitted in the next couple of days.\

Would you say point 2 is too detailed and I should save the details of how the signage is inadequate for the witness statement, with the relevant evidence attached?

willber92

I'm also considering claiming against them for misusing my personal data, and breaching of points 1 and 2 of the Data Protection Act, as UK CPM failed on 2 requirements of the KADOE contract before requesting my data:

- No contract, as a case of inadequate signage
- Not conforming to POFA requirements for pursuing keeper, as the Notice to Keeper was delivered beyond the required 14 day window

I've been digging through the Data Protection Guidance thread which has been a gold mine of useful info on the matter.

What do you think my chances are of succeeding to claim for distress, considering there was such a serious lack of signage, and is it worth pursuing them over this? Would £500 be a reasonable amount to claim? I've read other success stories of Mr. B who was awarded £500, and another received £750.

I'm under the impression that if I'm going to proceed it would be better to submit this now as a counterclaim rather than claiming further down the line, to avoid 2 potential court dates, but would it strengthen my case to claim separately once it’s resolved if I’ve won?

The alleged contravention occurred in November 2017, and I sent them letters in both December 2017 and January 2018, explaining why I denied the charge and also sent a Section 10 Data Subject Notice - demanding they cease and desist from processing my personal data and that the DPA required them to respond within 21 days, and guess what, they ignored both letters!

Stupidly I didn’t get a proof of postage when I sent these 2 letters, but could hopefully prove from the document creation date that they are genuine. Would this allow me claim for a higher amount?

Would really appreciate anyones advice on the above, as I really want to fight back!

Coupon-mad

Replace #4 as there will have been a LBC:

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.

Instead add the usual 'no proprietary interest' defence point seen in all the examples in the NEWBIES thread, as I think you are missing it.

Read StubbornGoat's thread as I went to court with him yesterday and we won, and his case v UKCPM about parking in a visitor bay and seeing no signs, is similar to yours and his defence and later on, his WS & evidence list, will help you.

willber92

Do you mean to replace point 4 with this?

"X. The Claimant is put to strict proof that it has sufficient prorpietary 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."

Is it not worth still keeping in point 4, as they did indeed send a LBA, but I responded with a letter including the below:

I require your client to comply with its obligations by sending me the following information/documents:

1. an explanation of the cause of action
2. whether they are pursuing me as driver or keeper
3. whether they are relying on the provisions of Schedule 4 of POFA 2012
4. what the details of the claim are (where it is claimed the car was parked, for how long, how the monies being claimed arose and have been calculated, what contractual breach (if any) is being claimed)
5. a copy of the contract with the landowner under which they assert authority to bring the claim
6. a copy of any alleged contract with the driver
7. a plan showing where any signs were displayed
8. details of the signs displayed (size of sign, size of font, height at which displayed)
9. If they have added anything on to the original charge, what that represents and how it has been calculated.

They then responded 8 months later with exactly the same LBA, but with the added line of "We have enclosed all documents further to your correspondence of XXX and apologise for the delay". Of course, they lied and did not enclose any of the documents I requested. Is it worth bringing this point up now or saving it for my WS?

That's good news on the case yesterday, I'll check out StubbornGoat's thread now for some more inspiration, thanks!

Le_Kirk

You cannot put in your defence, something that is not true, especially as you say in your post above that they responded with another LBA eight months later. Save it for the WS - it might go to show unreasonable behaviour.

willber92

My point in my defence was not that I didn't receive a LBA, it was that neither one that I received was compliant with the Pre-Action protocol and didn't include the necessary information, despite me requesting it.

Coupon-mad

Up to you but I think it's a non-point. You will have had a LBC from Gladstones mentioning the PAP and reply forms.