Claim Form but not the driver

Crystaltips76

I have posted before about this County Court Claim that I have received where I had notified QDR Solicitors who the driver was before the claim was filed but they had continued to pursue my organisation as the registered keeper regardless. I have asked for my defence draft to be read through but I fear my post has been lost in the deluge of requests for you that you wonderful people get daily!

Here is the details on the claim form:
The issue date is: 25 JUL 2019
Charges Breakdown:
Amount Claimed: £160
Court Fee: £25
Legal representative's costs: £50
Total Amount: £235

Particulars of Claim
The claimants claim is for an outstanding parking charge issued to vehicle GLXX XXX when parked at NATWEST ASHFORD KENT. The Site is managed by the Claimant. The Defendant is the keeper of the vehicle of the driver names in accordance with Schedule 4 of the Protection of Freedom Act 2012 of the vehicle. Vehicles parking at the Site are subject to the parking restrictions and terms and conditions which are set out on signs at the Site and form part of a contract between the driver of the vehicle and the Claimant. On 16 11 2018, the Vehicle was parked at the Site in breach of the contract, the contravention being no Ticket On Display. By entering this contract the Defendant agreed that they would be liable for £100.00 parking charges, plus additional contractual charges incurred by the claimant for the collection of the debt pursuant to the terms and conditions.

I have done an AOS on 25th July so have until 27th August to submit my defence but am going on annual leave on Friday for two weeks so want to submit my defence this week so I don't have to be working on this during my holiday.

I have requested a SAR from the PPC, written to QDR Solicitors to tell them to discontinue the claim and if someone could read through my defence to check it is ok before I submit I would be ever so grateful.

Here it is:
The Defendant is (Company Name) and it is admitted that the company is the registered keeper of the vehicle. There is no clear cause of action shown in the Particulars of Claim and liability for this charge, or any sum at all claimed by this Claimant, is denied for the following reasons:

1) (Company Name) is the registered keeper of the vehicle. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that Defendant company has nominated the Driver and that the Claimant knew the name and address of the Driver before filing a County Claim against the Defendant. Therefore, the Defendant is not liable for the claim and the Claimant has lost any right to claim from (Company Name) as keeper. This non-compliance with POFA 2012 voids any right to ‘keeper liability’.

2) The Particulars of Claim does not state whether they believe the Defendant is the keeper and/or the driver of the vehicle. 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. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

3) It is denied that a 'parking charge notice' ('PCN') was affixed to the vehicle on the material date given in the Particulars 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.

4) Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a PCN.

5) Due to the sparseness of the particulars, 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.

6) As a body corporate, (Company Name) could not possibly have been the driver of the vehicle so cannot be held liable ‘as driver’ either. Further, there is also no possibility of vicarious liability by (Company Name) to the Claimant, since there was no omission, contravention nor breach of contract by the driver.

7) Further and in the alternative, 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. The signage at the entrance to the car park reads: For the use of NatWest Customers Only' which is a forbidding sign but then offers a contract to park to a non-NatWest customer which is contradictory.

8) The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

9) 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 landowner to issue parking charge notices, and to pursue payment by means of litigation.

10) The Protection of Freedoms Act 2012, Schedule 4, 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 £124. The claim includes an additional £86, for which no calculation or explanation is given. It is submitted that any added 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.

11) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, (Company Name) is keeping a note of wasted time and costs so far in dealing with this matter, with a view to claiming the loss to the company of at least half a day's work for myself or another employee/Director, and travel/parking costs and any other expenses for attending any hearing as witness for the Defendant.

12) 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.

I believe the facts and information in this defence are true and the Defendant company is not liable for the sum claimed, nor any sum at all. The employee submitting this defence works for and is authorised to submit this defence by (Company Name).

Quick Reply
Thanks

The_Deep

Have you read this?

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Crystaltips76

The_Deep wrote: »

Have you read this?

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Thank you, I'll have a read. There has definitely been an abuse of process as they have inflated the charge, also the claim form says that 'by entering the contract to park the defendant agreed to pay £100 parking charges', whereas the NTK was originally for £124 before they started tacking other charges on!

Le_Kirk

The defence seems to contain all the usual points to be found in the defence examples posted in the NEWBIE sticky by Bargepole and others. Have you checked out the Abuse of Process thread by beamerguy (with a comment by Coupon-mad a post # 14)? Since your main point is that the claimant should be chasing the driver that you named, you may not need it.

Crystaltips76

Le_Kirk wrote: »

The defence seems to contain all the usual points to be found in the defence examples posted in the NEWBIE sticky by Bargepole and others. Have you checked out the Abuse of Process thread by beamerguy (with a comment by Coupon-mad a post # 14)? Since your main point is that the claimant should be chasing the driver that you named, you may not need it.

I am just looking at this now. The particulars of the claim say that the alleged contract was for £100 parking charges, yet the NTK had £124 and now it has been inflated to £160. It just doesn't tally so I will put an abuse of process paragraph in there too I think!

Redx

I cannot see how any ntk is over £100, what do the signs say and what does the original ntk from the PPC say exactly ?

The £60 of the £160 is the usual spurious charge on to of the £100 default tariff

Your first post on this thread states it was £100

Crystaltips76

Redx wrote: »

I cannot see how any ntk is over £100, what do the signs say and what does the original ntk from the PPC say exactly ?

The £60 of the £160 is the usual spurious charge on to of the £100 default tariff

Your first post on this thread states it was £100

Sorry that was an error on my part - the particulars of the claim stated £100 but the NKT I was sent stated £124

Redx

Crystaltips76 wrote: »

Sorry that was an error on my part - the particulars of the claim stated £100 but the NKT I was sent stated £124

Check all your posts then because giving us false information won't help us to help you at all

Also bear in mind it's the holiday season with few regulars here at the moment

Crystaltips76

Sorry Redx I am not meaning to give false information, I am only going by information that I have been sent by the various debt collectors and solicitors who have been badgering me. I got the £100 figure from a letter I was sent by DCBL who quoted that being the amount on the PCN but I have never actually seen the PCN, my colleague denies there ever being one. The £124 was the amount on the NTK that I received from ZZPS - possibly an admin charge tacked on? There was no breakdown of the amount offered. I have changed the £100 amount in my post to £124.

I do also appreciate that it is holiday season and if no one is available to look over the defence I will have to just submit what I have cobbled together and hope for the best.

I also really appreciate any advice that is offered, the whole situation is very frustrating as my organisation have just landed this in my lap to deal with. I really have no idea what I am doing and am facing a steep learning curve and having to take in a lot of information while trying to also carryout my usual work tasks. Meanwhile my colleague who was driving at the time is not having to deal with this at all! Sorry - rant over!

Redx

A SAR to the PPC will flush out the NTK, as detailed in the newbies faq sticky thread post 2

The zzps letter is not the ntk, plus they do seem to have added an admin charge to the £100 default tariff, so don't make assumptions and call the zzps letter the ntk

It seems that dcbl are correct when they said the PCN was £100

How do we know that zzps are lying ? Because their lips are moving !!

The PPC or their back office agent sent out the NTK, so ensure a SAR snares that first contact letter

ALL spurious charges are objected to, period