Defence when there's no defence?

glasso

Ok so I've drafted a defence which I'll post below but I'm still struggling - I should really have paid to park but chose not to. There's no clear misunderstanding or wrongdoing on the part of the parking company so I don't fee like I have one solid line of defence. I've copied and pasted anything that I feel might be relevant but to be honest I'm finding the whole thing confusing and thinking I've got no chance of winning. Anyway, read below...

Also, different threads mention different solicitors e.g BW etc. I've not had any mention of a solicitor acting on behalf of Excel parking on my claim form, nor have I had any separate communication from a solicitor - am I missing something?







IN THE COUNTY COURT



CLAIM No:


BETWEEN:



Excel Parking (Claimant)

-and-

__________ (Defendant)



DEFENCE





I am the defendant, _________. The claim relates to an alleged debt in damages arising from a driver’s breach of contract when parking at ___________



I deny any liability to the Claimant whatsoever on the following basis:

2.1. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a yellow/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

2.2. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

2.3. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.

2.4. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

3. 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.

4. The Claimant is a well-funded company with a dedicated legal staff and is a serial litigator. I submit that his issuing Particulars of Claim lacking in usable detail or that do not disclose a clear cause of action is not only remiss but smacks of a “Cut and Paste” approach to the issuing of proceedings. I further submit that this demonstrates a disregard for the dignity of the court and little concern for the Claimant’s duties in supporting the court to achieve the overriding objectives.

5. Additionally such scant Particulars leave Defendants to respond to what are at best vague details.

6. In due course I will ask the court to consider the frequently overlooked test established by Roskill LJ in the matter of Vine –v- London Borough of Waltham Forest insofar as it relates to the display of signage in conveying an obligation.

7. Although the above case turned on the application of the principle of volenti non fit injuria as opposed to the creation of a contract to park I will submit that the test created is nevertheless relevant and is entirely applicable to the instant matter.

8. It is submitted that (apart from properly incurred court fees) any added solicitors fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

9. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.

10. Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass.

11. The court is invited to strike out the claim, due to no cause of action nor prospects of success.

12. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.

Redx

you dont appear to have objected to the extra charges despite posts 10 and 11 telling you to do so , especially if the amount claimed is say over £200 in total (the £175 posted earlier as an example is nearer the mark, a typical total from say Parking Eye)

point 8 is nowhere near good enough plus the point needs moving closer to the bottom

and remember, O J Simpson got off on a technicality , even though most people think he was guilty, plus we know Beckham was speeding in a hired Bentley, but MR LOOPHOLE got him off the charge due to the NIP arriving a day late

and what about MIRANDA in the USA ? , or PACE over here ?

they should follow all the rules if they want bread and honey

Egbert_Nobacon

This is what you need replacing point 8:-




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' (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 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...''

- 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.

- 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.

- 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.

As Redx says have this at the bottom and renumber paragraphs.

KeithP

Copied from elsewhere...

KeithP wrote: »

glasso wrote: »

What is the email address that defences can be sent to? I've left it too late for posting and emailing is easier.

Glasso, the information you are looking for is in post #7 of your very own thread.

glasso

I've had the SAR information back but I'm unsure what I actually do with this information now? There's screenshots of various dates and updates on the case, when something was posted to me, etc, pictures of the car from different angles, and the PCN from the day. The only two things that might be of any interest are:
- The original PCN says I was filmed, this is not included in the SAR. They've either filmed me and not sent it with the SAR or I wasn't filmed in the first place. Does this help in any way?
- There's no PDT logs with vehicle registration for that car park on that particular day

KeithP

glasso wrote: »

- The original PCN says I was filmed...

...or does it say the car was filmed?

What exactly does it say?

glasso

It's pre-printed "filmed" and yes/no and yes is circled so doesn't specify the car or the driver.

KeithP

Or is whatever you are reading actually saying that the PCN has been filmed for archival purposes?

I am only guessing. Unless you can show us, I don't think anyone can know for sure.

steve1500

Film /Video/ Photos should be supplied under the SAR . If they haven't go it, that is a big bonus.

Because they have referenced it, you don't have to jump the usual hurdle associated with video etc of giving them a pretty accurate time of when it was taken.

Similarly with PDT they should have them & should be supplied

If they haven't got them, you can say the complete opposite to what they are saying to the best of your recollection

Snakes_Belly

Similarly with PDT they should have them & should be supplied

The first hearing of my case was rescheduled because of lack of time but the judge did make the comment that the Claimant (Excel) had not provided any records for the pay and display machine. She told their representative to take that message back to them. I thought that she was basically saying (in a polite way) "put up or shut up". I think also that allowing two hours for the next hearing was to put them off but they still went ahead.

In my next hearing they still had not provided the information but the judge went down the contract route.