A PCN at claim stage with a Contract Hire Vehicle advice sought/few Q's

KeithP

Four weeks ago you found out...

...you have until 4pm on Tuesday 27th August 2019 to file your Defence.

At the same time I also wrote:

...please don't leave it to the last minute.

Less than one day to go and you post your first draft Defence, and on a Bank Holiday weekend too.

Let's hope that someone is around who is willing to read defences on this balmy evening.

SophS

KeithP wrote: »

Less than one day to go and you post your first draft Defence, and on a Bank Holiday weekend too.

True, its not ideal that tomorrow is submission day and im here asking for an eye over the defence over a bank holiday, but in my "defence" what i wrote has not been hashed together today, it has taken me weeks in the spare hours i have left over the 16-18 hour days i work.

Unlike some of the more knowledgeable on this forum, i have not written and won dozens of defences nor do i have any legal background or understanding of contract law.

I've taken the odd bone thrown at me, eg searching a word or phrase and trawled through more posts and defences than i care to count - trying to peice together bits that might fit in with my current situation.

it would have been quicker with a direct link to similar defences but i realise this is not what this forum is for, eg that kind of help, so its taken ages, literally.

Redx

I can only think of 2 or 3 legal people on here that have that knowledge and experience plus coupon mad, even if they were here over the holidays and willing to help out which I doubt at this late hour on a bank holiday, which gave you one extra day you don't normally get

This is a consumer rights forum not a legal aid forum

Myself and other regulars here haven't done it either

We are unpaid volunteers who help when we can do so , if that's not good enough and you want a better service then do what Martin Lewis would tell you to do , pay a lawyer like Beckham does

If it takes a week a month or longer, it's your court case , not ours and you were warned

PS , Edna basher does it for a living , because it's more complicated with lease and hire vehicles, that's why he gets his salary, and rightly so

I would be adding the abuse of process too

SophS

I have swapped around and edited some of the paragraphs so this is a second draft.
I dont know how to successfully cut out the waffle so its still a very long defence.


Claim Number: xxx

Between:

Vehicle Control Services Ltd (Claimant)

-and-

(Defendant)
_________________________________________
DEFENCE
_________________________________________
The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. At no point does the defendant admit to being the driver of the vehicle at the material time.

2. It is admitted that at all material times the Defendant is the hirer of vehicle registration mark xxx which is the subject of these proceedings.

3. The Claimant states that the vehicle appears, from the sparse evidence supplied by the Claimant, to be parked/stationery on the material date in a residential space without the display of a parking permit.

4. At no point does the evidence provided by the Claimant show this to be the case. Indeed, photographs supplied by the Claimant merely show a vehicle’s registration number and does not in anyway allude to the vehicle being parked in any prohibited parking space or street or area.

5. Due to the sparseness of the evidence and 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. The claimant is therefore put to strict proof that a parking contravention actually occurred.


7.The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

8. As stated in paragraph 13(2) of POFA 2012...
"The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b) A copy of the hire agreement; and

(c) A copy of a statement of liability signed by the hirer under that hire agreement.

AND

Paragraph 14(2) and (3) of POFA 2012:

(2) The conditions are that —
(a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and
(c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
(3) In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.

9. The Claimant was required to send this information to the Defendant (as Keeper/Hirer) within 21 days after receiving them from the hire company ALD Automotive and no later than 49 days after the NTK was sent to the hire company, which would have been on or around April 12th.

10. The Claimant failed to do this, no such documents were ever received by the Defendant. Therefore the Claimant failed to comply with the Protection of Freedoms Act 2012, paras. 14(2)(a) which mandates that the Claimant must provide the hirer with a copy of the lease/hire agreement enclosures mentioned in paras. 13(2) when they delivered the notice to keeper.

11. As the Claimant has failed to comply with the relevant statutory requirements set out above, the Claimant cannot therefore transfer liability from the driver to the registered hirer/keeper and the Defendant refers the court back to paragraph 1 above.

12. Should the Claimant seek to allege that any such presumption exits, the Defendant expressly denies any such presumption in law, whether statute or otherwise that the keeper is the driver. Further more, the Hirer is under no obligation to name the Driver of the vehicle at the material time.
Failure to set out clear parking terms

13. The Defendant denies that the driver entered into any contract by agreeing to park at the location.

14. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

15. This case can be distinguished from ParkingEye v Beavis which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

16.The Defendant avers that the parking signage in this matter was, without prejudice to her primary defence above, non existent or woefully inadequate. If indeed there were signs in this residential area, they were not clear, prominent or legible from all parking areas of both visitor and residents alike, and therefore have insufficient notice of the sum of the parking charge itself. Vehicle Control Services are required to show evidence of the contrary.

17. The Claimant has no standing to bring a case - this also distinguishes this case from the Beavis case. The Defendant has the reasonable belief that the Claimant
i) Does not hold a legitimate contract at this residential area
ii) Does not have the authority to issue charges on this land in their own name and
iii) The Claimant has no rights to bring action regarding this claim.

18. The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice 7 1. which says;

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent)

…..AND…

7.2 If the 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”.

19. Vehicle Control Services Ltd are not the lawful occupier of the land. As an agent, the Claimant has no legal right to bring such a claim in their name. Any such claim should be in the name of the landowner.

20. It is therefore denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

21. The Claimant has at no time provided an explanation how the ‘parking charge’ on the Particulars of Claim has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £185.00. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

22. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

23. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

24. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

25. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

26. It is denied that the Claimant has any entitlement to the sums sought.

27. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

28. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

29. In the event the claim progresses, as an unrepresented litigant in person, the defendant reserve the right to alter, vary and add to this defence or reply to any further particulars of claim/documents the Claimant may provide.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true.

Signed

SophS

thanks for the tip RedX.
There is now brand new paragraph 21 to 27 covering what i believe you meant by the term abuse of process. Found via a post / defence by Ruby82
I know there theres hardly any time now for comments on the defence before its sumbitted but it already looks better than the first inital draft so it might just get by as is with the edit below.


Abuse of process

21. The Claimant has at no time provided an explanation how the ‘parking charge’ on the Particulars of Claim has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £185.00. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

22. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

23. Indeed, many informed 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 an 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.
　
24. The Order was identical in striking out all such claims without a hearing. - The judgment for these three example cases stated:

"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''

25. 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.

26. 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.

27. 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.

In light of the reasons above, the Defendant respectfully asks the court to strike out this excessive claim with immediate effect.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true.

Le_Kirk

You have all the usual points including signage, landowner authority PoFA and Abuse of Process, so, unless anyone else comments before the end of the day, submit it and DO NOT miss the 4.00 p.m. cut-off.

SophS

Hello forum. I am reviving this thread as court date is now set and I have to hash out a witness statement.

PPC have paid the filing fee so its all going to go ahead.

The rough draft WS isn't as long nor does it go over ALL the points made in the defence above, however I'm not sure how to end it.

The main point im trying to push is the non compliance of POFA with regard to contract hire vehicles - I don't know if that's strong enough to win on this as I feel its already a weak.

That and the fact that the evidence provided by VCS does not in any way show the vehicle parked in a prohibited space without displaying a permit. Pics taken by VCS controller in the dead of night.
No pics of signage or even the claimants WS has been received yet. Deadline for WS is this week.

We are talking about a driver visiting a relative that lives in a residential area filled with both resident only spaces (numbered) and visitor spaces, not numbered - but also no other clear markings that say visitor either. I should also add that the resident does not have a copy of their tenancy to support this, ive tried getting it, however the driver did not park directly outside the home either as it was full of cars.

Here goes: feedback welcome.


IN THE COUNTY COURT - Claim No:xxxxxxxx

Between

Vehicle Control Services Ltd (Claimant)

-and-

xxx (Defendant)

_____________________________________

WITNESS STATEMENT
_____________________________________


I xxx of xxxxx am the defendant in this case.

1. I am a litigant in person, with no experience of court procedures. If I do not set out documents in the way that the Claimant may do, I trust the court will excuse my inexperience. In this Witness Statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

2. I assert I am not liable to the Claimant for the sum claimed, or any amount and this is my Witness Statement in support of my defence as already filed.

3. Whilst I am the hirer of the vehicle concerned, there is no evidence of the driver and, as this event has been resurrected from almost a year, it is impossible to expect the Defendant to recall who might have been driving the vehicle at the material time.

4. The Defendant denies being the driver at the time of the alleged contravention, and therefore puts Vehicle Control Services (VCS) to strict proof that any contract exists between the Claimant and the Defendant.

5. Due to the sparseness of evidence pertaining to this alleged contravention and of the particulars, a Service Access Request (SAR) was made to the claimants Data Protection Officer via the Claimants stated contact email address on the xxx of August 2019 for all information pertaining to this matter (Exhibit 1).

6. The Claimant failed to comply within the statutory time limit for responding to the SAR and has in-fact completely ignored it.

7. Failure of the Claimant to comply with the SAR can only be seen as an attempt by the Claimant to disadvantage the Defendant by denying them full disclosure of the information they held.

8. Furthermore, the Claimant has provided zero evidence that a parking contravention ever occurred. Pictures of the vehicle as seen in Exhibit 2 on the Notice to Keeper and subsequent demand letters are of poor quality and show nothing but the vehicle registration number.

9. No Evidence of the vehicle occupying a prohibited parking space have been provided to the Defendant and Vehicle Control Services are required to show evidence of the contrary.

10. Parking signage in this area is also are non existent or woefully inadequate. If indeed there were signs in this residential area, they were not clear, prominent or legible from all parking areas of both visitor and residents alike.

11. As the Claimant also failed to prove that the hirer of the vehicle was the driver at the material time, they were limited to pursuing the Defendant under the provisions set out by statue in the Protection of Freedoms Act 2012 (POFA) below and as set out in the defence statement paragraphs 7 & 8.

12. None of the documents set out in paragraph 13 (2) (a) (b) or (c) of POFA 2012 were ever provided to the Claimant by the vehicle hire firm xxx - who are also the registered keepers of the vehicle (Exhibit 3)

13. Had the Claimant indeed received the above mentioned documents, the Claimant was required to send a copy of those documents to the Defendant within 21 days after receiving them as set out in paragraph 14 (2) and (3) of POFA 2012 of the above exhibit. Again, the Claimant did not.

14. The only document the Claimant received was a letter from xxx dated xxx providing the Defendants contact details (Exhibit 4).

15. As the Claimant failed to comply with the relevant statutory requirements set out above, the Claimant cannot therefore transfer liability of alleged charges to the hirer of the vehicle and the Defendant refers the court back to paragraph 4 above.

16. Additionally there is nothing within POFA, criminal or civil law that permits anyone to make presumptions as to the driver.


14. At no point did the Claimant prove they had the authority to operate or manage parking at the residential site listed in the Particulars of Claim. It is therefore rejected that VCS has the authority from the landowner sufficient to establish them as the “creditor” within the meaning of the Schedule 4: 2(1) (b) of POFA (2012), nor establish them as a person who is able to recover parking charges, as laid out by the Claimants Trade Association Code of Practice 7.2 & 7.3. (Exhibit 5 & 6)

15. In light of there being no valid contract or agreement between VCS and the Landowners which was argued in paragraph 17 of my defence, the Defendant asks the court to dismiss this case as having no rights to bring the action regarding this claim.



.....strong ending suggestions welcome

KeithP

When is your 'due date' for filing (at the court) and serving (on the claimant) 'all the documents you intend to rely on'?

You seem to have nothing in there following up on the Abuse of Process that was mentioned in your Defence.

SophS

do you mean the documents ive listed as exhibits? I can't find a way to post them as docs here. Due date I believe is 23rd this is what ive calculated as 14 days before court hearing.

With regard to the arguments about the abuse of process, I thought that the WS wasn't to be a copy of the defence so apart from re-wording the same arguments I wasn't sure what to add about them, but do acknowledge this is a rough draft and needs to be ended properly.

Coupon-mad

You've missed a trick due to your absence.

You've not been here since August, so unless you've been keeping up with the forum (I hope you have) you maybe missed what happened at Southampton court, that you can use against the falsely added £60 in your own case.

Read the thread by CEC16, and you may have also missed that we always now tell people to file & serve their costs schedule in advance, as well as a SUPPLEMENTARY WS. Read more threads first!