County Court Claim

mercuteio

Coupon-mad wrote: »

Well that would be a main defence point, that there is no certainty as to who is offering the parking contract and what those terms might be, and it would be impossible to comply with or read & make an informed decision about all the differing signs. Even if the driver had been in a position to do so, the doctrine of contra proferentem applies regarding any ambiguity of terms that must be interpreted in law in the way that most favours the consumer, not the trader (Consumer Rights Act 2015).

Then mention the medical emergency in the early facts, then continue with the usual standard points you see in recent defences here this Summer. Show us the draft to comment on.

Search the forum for contra proferentem defence and you should find a few.

Goodness me, you guys are amazing - thank-you so much!

Ok, I’m on it. Will look into this more tomorrow morning and hopefully have a draft done by tomorrow evening.

Thanks again!

Coupon-mad

you guys are amazing

So are us girls!

mercuteio

mercuteio wrote: »

Goodness me, you guys are amazing - thank-you so much!

Ok, I’m on it. Will look into this more tomorrow morning and hopefully have a draft done by tomorrow evening.

Thanks again!

Coupon-mad wrote: »

So are us girls!

That wasn't meant to be gender-specific! All men, women, cats, dogs, sheep, fish, birds and others contributing to the effort of taking down these private parking pains were being lumped under the catch-all term of "you guys". All of whom are amazing

mercuteio

Ok, have spent a lot of last night and this morning looking up various recent defences, and am continuing to do so. I have a question, but first it may be helpful to see the Particulars of Claim, served by Jake Burgess of VCS:

PARTICULARS OF CLAIM:

The Claim is for a breach of contract for breaching the terms and conditions set on private land. The Defendant’s vehicle, *******, was identified in the **** Staff and Visitor Car Park on the 29/01/2019 in breach of the advertised terms and conditions; namely parked in a restricted / prohibited area. At all material times the Defendant was the registered keeper and/or driver. The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations. The sign was the offer and the act of entering private land was the acceptance of the offer hereby entering into a contract by conduct. The signs specifically detail the terms and conditions and the consequences of failure to comply, namely a parking charge notice will be issued, and the Defendant has failed to settle the outstanding liability. The Claimant seeks the recovery of the parking charge notice, contractual costs and interest.

The claimant believes that the facts stated in this claim form are true and I am duly authorised by the claimant to sign this statement

mercuteio

mercuteio wrote: »

PARTICULARS OF CLAIM:

The Claim is for a breach of contract for breaching the terms and conditions set on private land. The Defendant’s vehicle, *******, was identified in the **** Staff and Visitor Car Park on the 29/01/2019 in breach of the advertised terms and conditions; namely parked in a restricted / prohibited area. At all material times the Defendant was the registered keeper and/or driver. The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations. The sign was the offer and the act of entering private land was the acceptance of the offer hereby entering into a contract by conduct. The signs specifically detail the terms and conditions and the consequences of failure to comply, namely a parking charge notice will be issued, and the Defendant has failed to settle the outstanding liability. The Claimant seeks the recovery of the parking charge notice, contractual costs and interest.

The claimant believes that the facts stated in this claim form are true and I am duly authorised by the claimant to sign this statement

So, one paragraph of defence that I'm seeing written out quite a lot is:

"The Particulars of Claim state that the Defendant was the registered 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."

So, I've been looking up Civil Procedure Rule 16.4 and Civil Practice Direction 16, paras 7.3-7.5, which are as follows:

Civil Procedure Rule 16.4

(1) Particulars of claim must include –

(a) a concise statement of the facts on which the claimant relies;

(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);

(c) if the claimant is seeking aggravated damages(GL) or exemplary damages(GL), a statement to that effect and his grounds for claiming them;

(d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and

(e) such other matters as may be set out in a practice direction.


(2) If the claimant is seeking interest he must –

(a) state whether he is doing so –

(i) under the terms of a contract;
(ii) under an enactment and if so which; or
(iii) on some other basis and if so what that basis is; and

(b) if the claim is for a specified amount of money, state –

(i) the percentage rate at which interest is claimed;
(ii) the date from which it is claimed;
(iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued;
(iv) the total amount of interest claimed to the date of calculation; and
(v) the daily rate at which interest accrues after that date.

(Part 22 requires particulars of claim to be verified by a statement of truth)


Civil Practice Direction 16, paras 7.3-7.5

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and

(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.

7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.


I think, if I've understood this paragraph of defence properly, that what is being said is that, because the claimant has effectively said "the Defendant is either the keeper or the driver, or both - we don't really care", that is them simply serving "a menu of choices", rather than specifying that their claim is against "the keeper" or "the driver" specifically.

Fair enough, but which bit of Civil Procedure Rule 16.4 or Civil Practice Direction 16, paras. 7.3-7.5 stipulates that this is against the Civil Procedure Rules? Not sure if I'm missing a trick?

I'm conscious that if there are elements of my defence that I'm trying to substantiate with evidence that doesn't really support the point, then I may be looked on unfavourably by the judge, so I'm keen to avoid this.

Equally, if I've simply missed the point (very possible!) then this is quite a delightful paragraph that I'll be happy to include.

Thanks!

Le_Kirk

That paragraph was written by Bargepole, who, I believe is legally trained and has been around the forum for the last couple of days and may choose to comment on it. However, another legal-type poster is Johnersh, who doesn't like it. See his comment HERE. For the reason that there are two conflicting views and I couldn't find any certain evidence in the CPR, I have stopped commenting on it, just accept that legal-types know better than me plus it has served defendants well over some years now.

mercuteio

Ooh, thats very helpful, Le_Kirk! I think I'll read that whole thread, actually, as will probably pick up quite a few pointers.

You know, on a separate note, there are some delicious arguments that you folk have put together. This one doesn't apply to me, but I wish it did, just so I could add it in!

8.2. 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.

mercuteio

Is anyone aware of any regulations that allow emergency workers to park on private land in the circumstances of attending to a medical emergency?

There seems to be lots of stuff regarding ambulances in the Road Traffic Act, but my car is not an ambulance. Nonetheless, I am an emergency worker and I was attending to an emergency, so just trying to see if any regulation applies

mercuteio

Ok, here's my first draft defence. I need to email this by Monday at 4pm, although the sooner the better. A few points to note before you read this:

1) Most of this is stuff I've copied from other defences, and tried to make flow in the context of my own case

2) Where I've gone off-piste on my own, I've coloured in orange. Please check these bits more carefully as there's every possibility I may have inadvertently shot myself in the foot, so I'd appreciate any feedback

3) I've copied Coupon-Mad's series of paragraphs on abuse of process, but there's one section of this that I've highlighted in green. I am not 100% sure if this bit applies to my case, and am considering taking it out. I think VCS probably have complied with the statute, although I'm not sure now that I've seen this section. If anyone has any advice, I'd appreciate it - otherwise I may just take this bit out

4) I haven't included anything about the fact that this was a medical emergency, as I can't find anything that indicates this could be part of a legal defence - I tried to find something that definitively said in law that an emergency worker attending to a life-threatening condition can park wherever they want, and specifically, could park on private land, but I couldn't actually find anything definitive. My feeling, therefore, is that this should turn up in the witness statement, rather than the defence. However, if anyone thinks it would be better to include at this stage, please let me know, and ideally give me an idea of how and where you'd include it. I am wide open to suggestion, as I am very unsure of myself here, so please do give feedback as you see fit.

5) I also haven't mentioned anything about the fact that I received a PCN from the same company in the same car park under very similar circumstances (medical emergency, nowhere else to park, still awaiting permit from hospital) on 6th May, and am currently receiving letters from them. Do you think this should be weaved in?

Ok, here goes - many thanks all!



IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

VEHICLE CONTROL SERVICES LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the defendant was the registered keeper of the vehicle, registration **** ***, on the date 29/01/2019 on which the alleged Parking Charge Notice was issued.

3. 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.

4. 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 Defendant notes that no less than three separate companies have signage within the same space of land, each claiming that parking represents acceptance by conduct of a contractual agreement with themselves only, and therefore each contradicting the possibility of such actions forming a contractual agreement with any of the other companies displaying signage. This causes an entirely ambiguous and unclear situation in which there is no certainty as to whom any such contract could be in agreement with, and as such no contract can be construed from the Claimant’s signage under the doctrine of contra proferentem.

5. 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.

6. 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.

Costs on the claim - disproportionate, disingenuous and an abuse of process

7. 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 £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. Such a claim represents an abuse of process.

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. 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 administrative 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. 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, stating:
''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...''

15. 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.

16. 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.

17. 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

Nixci

Coupon-Mad I need you.
Don’t know if you’ve seen my other post, but your SO present and SO knowledgeable. You got a little cross with me a couple years ago as I was late with my court defence against UKPC as small children and quite stressful at that time, but hoping I’ve proven myself as I won in court against them all by myself and another case against a dodgy accountant. I need to help my mum now in court against CEL. Her car recorded on ANPR, but never parked as no spaces. 17 mins. Never responded to letters, but county court now.