Advice after receiving Final Demand

Coupon-mad

Yes, I think you need to take the opposite position, of a LATE PCN being incapable of holding a keeper liable.

Antistruggle

Hi all
Received a letter today from Devere saying they have passed the complaint to the manager for his attention and in the mean time they have cancelled the PCN And instructed TCN to remove my details from their database and they will do the same. They went on to say the pictures must stay for two years which is next month.

I’ve got to say I feel relieved but if you read the letter you’d understand it is either bad English or it’s confusing in parts.

Thanks again everyone for all your help and having a bit of humour goes a long way.

(I’m struggling to put a picture on with a link to google photos?)

Cheers

Antistruggle

KeithP

Antistruggle, why have you posted this on austin2014's thread?

austin2014

IN THE COUNTY COURT

CLAIM No:

BETWEEN:

(Claimant)

-and-

(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 vehicle, registration ****, of which the Defendant is the registered keeper, was parked on the material date in a marked bay.

3. 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.

4. 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.

5. 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.

6. 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. This can be proven by the new signage that has been constructed on this site, since this claim, which has a more clearly written and larger font. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
6.1. Having called the number on the sign several times. It is also clear it is not manned and is just a payment line.
7. The incident which led to the vehicle being parked in this area was down to a fast paced fire on the industrial estate. This fire included exploding gas canisters and completely halted the train service. As this is a small industrial estate a road block was in place. So therefore the car was moved under police instruction to a safe location so the police and fire department had access. It was a complete emergency situation which required getting out of the area fast.



8. The defendant made four separate attempts to retrieve his vehicle. (All Recorded)

9. The local Mp of the defendant made contact with VCS on the defendant’s behalf. This is a section from the VCS reply.

9.1 “ has stated that he parked on site due to his vehicle due to his vehicle being evacuated from its normal parking location due to an industrial accident, and that he was instructed by a police officer to park here, Whilst noting the circumstances cited by **** these do not warrant the cancellation of the notice. When parking on private land it is the responsibility of the motorist to ensure their compliance with the displayed Terms and Conditions, which are clear that a valid permit must be displayed. If **** was not a permit holder at the time of parking then he had no reasonable cause to believe he could park here without becoming liable for a charge. Whilst **** does state that he was instructed to park here by the police, third parties are not authorised to instruct motorists to park on this private land outside the contractual Terms and Conditions.”

9.2 This was a dangerous situation and seems to be asking the defendant to go against police instruction; this would not only have put the defendant in danger but potentially others too.

9.3 The defendant has the police statement from the acting inspector stating why the car needed to be moved.

10. 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.
11. The ‘RED CARD’ left on the defendants vehicle was clearly marked ‘THIS IS NOT A PARKING CHARGE NOTICE’, thus, there was no windscreen PCN, and under para 9 of the POFA, the Notice to Keeper arrived far too late for liability to pass to the registered keeper. .
12. 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.
13. “ The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.
14. The arbitrary addition of a fixed sum purporting to cover 'administration/recovery costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.
15. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.
16. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, case law and two statute laws hold that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.
17. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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.
18. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:
19. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''
20. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''
21. “ At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''
22. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.''
23. At para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''
24. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) 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' (further, 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.
25. Judges have disallowed all added parking firm 'costs' in County courts in England and Wales. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''
26. That decision in Wales was appealed by VCS but the added £60 was still disallowed on 30 Oct 2019, where District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. However, in light of the overriding objective (CPR 1) he would allow the Claimant to proceed, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.
29. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later but in England - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being summarily struck out in the IOW and Hants circuit. These included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge 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...''
27. At the hearing for BW Legal's N244 application to appeal against two 'test' cases that had been struck out by District Judge Taylor against Britannia Parking for trying to claim for £160 instead of £100 parking charge, the Defendants successfully argued on all three counts including a citation of the Consumer Rights Act 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points were robustly upheld by District Judge Grand, sitting at the Southampton Court on 11 November 2019, where he agreed that:
27.1 (a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
27.2 (b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
27.3 (c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the POFA para 9.
28. Further, it was successfully argued that the parking firm's consumer notice stood in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14 and due to the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before. The Claimants were refused their request to appeal - given that the £160 claim in its entirety, was adjudged to have been 'tainted' by breaches of two statute laws and going behind a Supreme Court ruling - and both Defendants were awarded their costs.
29. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).''
30. The definition of a consumer notice is given at 1.19 and the test of fairness is expended at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. 1.20 Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''
31. 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, harassing and indeed untrue in terms of the added costs alleged and the statements made.
32. The Defendant is of the view that this Claimant knew or should have known that to claim £160 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015 and that relief from sanctions should be refused and costs will be sought by the Defendant on the indemnity basis.
33. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety (due to the similarities with the Southampton case where the entire claim was deemed 'tainted') 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.

I believe the facts contained in this Defence are true.

Name
Signature
Date

austin2014

Tomorrow/Sunday I would like to submit this defence, please take a moment to read and feel free to advise. Thank you in advance. Everyone has been a great help.

Coupon-mad

It's long but I say, send it.

We'd like to see more Judges reading about Southampton and striking claims out without a hearing.

1505grandad

Sorry, I am probably confused but I wonder if para 11 is relevant in view of the preceding paras that seem to out the D as driver:-

"11. The ‘RED CARD’ left on the defendants vehicle was clearly marked ‘THIS IS NOT A PARKING CHARGE NOTICE’, thus, there was no windscreen PCN, and under para 9 of the POFA, the Notice to Keeper arrived far too late for liability to pass to the registered keeper."

i.e.:-

"8. The defendant made four separate attempts to retrieve his vehicle. (All Recorded)"

and the paras 9

austin2014

Its a good point, I will take some time looking over this, the retrieval section is important especially for the witness statement stage which I don't want to go into to much detail yet. Thank you for your input.

austin2014

Notice of Allocation to the Small Claims Track received , court date set and agreed. I have until May to provide my  witness statement. Which leads me to my next question, any advice on the Witness Statement? I am going to look at some today on the Forum. But feel free to point me in the right direction. Thank you all for your continued support. 

nosferatu1001

NEWBIES thread is of course your FIRST stop!
Yes, you write the facts starting at the start, and going to the end. 
So whats so important about RETRIEVAL, as mentioned above? Explain please.