BW Legal LoC

Le_Kirk

It was my better half that was driving at the time. The only proof I could get is a signed witness statement, but there might be issues in getting that as said person is not that happy that I have chosen to contest the fine! The PPC have only ever written to me regarding this matter.

It's not a fine, it's a speculative invoice. To whom was the court claim issued? It needs to be the named person who is defending, in most cases the registered keeper (RK).

not_the_messiah

Coupon-mad wrote: »

Brilliant, so it just says 'PRIVATE PARKING FOR COTTAGE'.

What does that smaller writing along the bottom say, exactly?

It says "Unauthorised vehicles will be ticketed"

Coupon-mad wrote: »

I see no terms, no offer, no threat of any parking charge for breach, no explanation whether 'Cottage' means a residence, local pub, Indian Restaurant or whatever, and nothing about any contract. That is not a contractual sign.

My thoughts exactly.

Coupon-mad wrote: »

Then if you look at the red signs, surely the driver didn't breach ANY of those terms either?

No - a ticket was displayed on the front dash for the period we were parked. I guess the only condition they could try and claim was breached is "Vehicles must not park on double yellow lines, hatched areas, pavements, or causing an obstruction." - could they argue by being parked in the COTTAGE space, it was causing an obstruction?

Le_Kirk wrote: »

It's not a fine, it's a speculative invoice. To whom was the court claim issued? It needs to be the named person who is defending, in most cases the registered keeper (RK).

It was addressed to myself and I am the RK. I was not the driver at the time.

Le_Kirk

It was addressed to myself and I am the RK. I was not the driver at the time.

OK, great, you'll be defending in your own name as RK.

not_the_messiah

Evening all!

First stab at my defence:

____________
DEFENCE
____________

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. The Defendant was not the driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the driver parked in a space signed “Private Parking for COTTAGE unauthorised vehicles will be ticketed” yet had purchased a valid parking ticket for the ‘land’ which forms the basis of the current claim. There are no terms, no offer, no threat of any parking charge for breach, no explanation as to what 'Cottage' means, and nothing about any contract. Given this lack of clarity, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

3. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

4. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

5. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 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. Not only is this abuse of process against POFA2012 but also abuse of process in relation to double recovery

6. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:

I believe that the facts stated in this Defence are true.

Name
Signature
Date

As always any comments very gratefully received.

TIA

Coupon-mad

DEFENCE
____________

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date.

2. However, the Defendant was not the driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all, and denies that the Claimant can pass liability to the registered keeper in this case, due to the Claimant's failure to comply with the Protection of Freedoms Act Schedule 4 ('the POFA 2012') requirements, including:

2.1. - the wording and service of the Notice to Keeper
2.1.2. - the absence of any 'relevant contract'
2.1.3. - the absence of any 'relevant obligation'
2.1.4. - the absence of any breach of any contractual terms on signage
2.1.5. - the absence of any consideration; there was no offered or agreed contract
2.1.6. - the wording of the nearest sign fails to 'specify' the sum of any parking charge and the other signs do not list any contravention that occurred - thus the absence of 'adequate notice' of the parking charge sum, which cannot be alluded to by vague reference only.

3. The facts of the matter are that the driver parked in a space, yet had purchased a valid parking ticket for the land which forms the basis of the current claim. On closer examination of the nearest sign, it merely states: 'Private Parking for COTTAGE' in large letters and in comparatively minuscule small print, the vague line ''unauthorised vehicles will be ticketed''. There are no terms, no offer, no threat of any specified sum as an 'agreed' contractual parking charge for breach, no explanation as to what 'Cottage' means, no information about what 'unauthorised' means in this bay or how to gain permission, and nothing about any contract. Given this lack of clarity, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

4. Accordingly, it is denied that the Defendant - nor the driver, who the Defendant has no obligation to name - breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct. This appears to be a case of trying to dress up a possible tort (trespass) as if it was a contractual matter with a licence to park on offer. A parking firm not in possession cannot plead their case in tort, because they have suffered no loss, as was held by the Supreme Court in the transcript of their decision in ParkingEye Ltd v Beavis [2015] UKSC 67. Trespass (which is denied) would only be a matter that the landowner of this unspecified 'cottage' could pursue, and even then only nominal damages if incurred, not an unknown (applied later) fixed penalty charge that was not even stated on the yellow sign.

5. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

6. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The [STRIKE]Protection of Freedoms Act[/STRIKE] POFA 2012, in Schedule 4, Para 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. Not only is this abuse of process against the POFA 2012 but also abuse of process in relation to double recovery.

7. Further, the consumer notices breach the Consumer Rights Act 2015 (Schedule 2 - the 'grey list' of terms that are likely to be unfair) including but not limited to paras 6, 10, 14 and 18.

8. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Statement of Truth:

not_the_messiah

Thanks CM! Should I send this off now, or should I wait closer to the deadline of 23rd December?

Coupon-mad

May as well print and submit it by email next week if no-one else adds anything by the weekend!

not_the_messiah

Coupon-mad wrote: »

May as well print and submit it by email next week if no-one else adds anything by the weekend!

Thanks

Forgot to ask - is it worth adding more detail around the abuse of process, or just leave it as is? I found the following in another defence:

5. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The POFA 2012, in Schedule 4, Para 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. Not only is this abuse of process against the POFA 2012 but also abuse of process in relation to double recovery.

6. 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.

7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. The Order was identical in striking out all such claims without a hearing. The judgement 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...''
14. 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.
15. 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.
16. 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.

Coupon-mad

That has been updated since 11th November, read CEC16's thread. But the new version wording can be saved till WS stage, so leave your Defence concise.

not_the_messiah

Coupon-mad wrote: »

That has been updated since 11th November, read CEC16's thread. But the new version wording can be saved till WS stage, so leave your Defence concise.

Brilliant - thank you!