Help Please Defence to be submitted soon

Quentin

Still has unique information that will allow the PPC to identify you

FredUp

Have edited again, can't believe I've made such a schoolboy error. Have I now blon it?

FredUp

Ok have re-drafted based on assumption I have screwed up.


Any thoughts or advice would be most welcome, I am wondering if there's any mileage in chasing the £60 add on charge through Contractual Transparency and Consumer Rights - it's certainly not been spent on a single robo letter?




THE DEFENCE:

• The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
  
• The facts are that the vehicle, registration XXXX, of which the Defendant was the Driver and is the registered keeper, was parked at the material date and time in the ********* Car Park as claimed but was not aware that any fee was payable or that this was a Pay and Display Car Park.
  
• The Particulars of Claim state that the Defendant ******* was the registered keeper and / or the driver of the vehicle *******. This assertion indicates 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.
  
• It is denied that the Defendant, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
  
• It is disputed that the signage is as stated in the Particulars of Claim specifically in that there are no signs clearly displaying Terms and Conditions for entering private land at the site entrance, nor are there clear signs at prominent locations. Photographic evidence provided by the Claimant by way of their own Parking Charge Notice which the driver was made aware by the affixed Notice to Person in Charge of the vehicle conclusively shows the signs to be neither prominent in that the sign itself is not obvious to a driver leaving the vehicle and walking to the exit. Nor are they clear, the photograph of the sign showing the Terms and Conditions is unreadable without the aid of artificial lighting, of which none is provided, the signs are complex and wordy, with the terms regarding Parking Charges for breach of conditions being in a subsection in a very small font of blue text on yellow background and does not refer to the amount of any Parking Charge, the amount of the Parking Charge is in a further subsection in an even smaller font of white text on blue background.
  
• The Defendant avers that the signage is in breach of the Claimant’s own Trade Association’s Code of Conduct Part E Schedule 1, that the lack of clear and prominent signage differentiates this case from the Parking Eye vs Beavis case upon which the Claimant may rely, and that the signage fails the test of Lord Denning’s “Red Hand Rule”.
  
• It is denied that the Terms and Conditions signage across the entire site is clear, prominent, nor capable of creating a legally binding contract. The Defendant avers that any reasonable person would pay the £1 parking fee due at the material time rather than save £1 and risk a £100 parking charge if these Terms and Conditions were made obvious to them by means of clear and prominent signs. The Claimant is put to strict proof that the signage as stated in the Particulars of Claim was in place at the material time and that such signage was capable of forming a contract.
  
• 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, and to provide details of any Terms and Conditions placed upon the Claimant by the landowner in relation to such authorisations.
  
• The sum claimed includes a £60 charge for Debt Collection fees which the Claimant claims are contractual due to a clause within the signage, in a tiny font but specifying that they may charge additional costs on an indemnity basis. The Defendant has had a single automated letter from a Debt Collection organisation and therefore does not accept that £60 costs have been borne in this regard. The Claimant is put to strict proof that charge has been incurred, and paid by themselves.
  
  
• The Parking Charge of £100 with a discount to £60 for early payment is excessive and unconscionable. In the case of Parking Eye vs Beavis the court allowed the charge of £85 as being agreed by the Defendant due to the unusual prominence of the Terms and Conditions signage upon which Mr Beavis noticed and agreed at the material time, and the charge was allowed in that it was broadly in line with Local Authority charges. The charge claimed in this matter is double the local authority charge of £50 and in the case of early payment more than double the local authorities discounted charge of £25.
  
• In summary, it is the Defendant's position that the Claimant has not complied with the PAP, the Claimant is claiming additional sums which it is not entitled to recover, the claim 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 contained in this Defence are true.

Coupon-mad

got a red Notice on the windscreen from VCS.

Why not just use & adapt the hybrid red notice VCS defence example?! The links are in the NEWBIES thread and there for the copying.

FredUp

Thanks I'll take a look.

FredUp

I'm really struggling as I don't have the NTK or some other letters that have been stated as sent butI never received. VCS ignored my response to the LBA asking for all pertinent docs and just kicked off the Court Action. A further SAR email has too been ignored to date.
I'm not sure what the hybrid pcn issue I need to show would be, the NTK was sent on the 6th day after the alleged event so would I claim that it must be a pcn and that vcs have jumped the gun in getting keeper details from dvla?

KeithP

If you were to search the NEWBIES thread, using ctrl+F, for the string VCS, the first occurrence is this sentence:

A 2018 defence re VCS and a 'THIS IS NOT A PARKING CHARGE' which they then call a parking charge later:

Click on the link following those words.

FredUp

OK Thanks I think I've got my head around it now and amended the defence. One thing that I'm confused about would be is the Claimant's PoC statement that the Defendant is the RK / Driver a valid claim, can they claim against either/or or would it be ok to include the not identifying a Cause of Action still apply?
I'd appreciate further advice and comment on moving this forward. I need to finalise this tomorrow ideally as I'm away over the weekend and need to get it sent off Monday.
Thanks in advance folks.
It now reads:







THE DEFENCE:

• The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
  
• The facts are that the vehicle, registration XXXX, of which the Defendant was the Driver and is the Registered Keeper, was parked at the material date and time in the ********* Car Park as claimed but was not aware that any fee was payable or that this was a Pay and Display Car Park. Upon returning to the Vehicle the driver noticed a Red and Black note had been attached to the windscreen which stated that “only the person in charge of the vehicle is authorised to remove this document”. The enclosed note informed the reader (Driver) that a parking Charge Notice would be issued to the RK through the post, it also advised the reader (Driver) to view the parking infringement at a website “myparkingcharge.co.uk”. On visiting the website (which only the reader (Driver) had access to) the Driver was invited to pay the PCN. This PCN was visible and presented to the Driver by means of the Notice / Non Notice to Driver placed on the vehicle. Therefore even though the Claimant may claim that no Notice to Driver was placed on the vehicle, this hybrid notice was indisputably a Notice to driver as it invited the driver to pay the PCN immediately.
  
• The Particulars of Claim state that the Defendant ******* was the registered keeper and / or the driver of the vehicle *******. This assertion indicates 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.
  
• It is denied that the Defendant, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
  
• It is disputed that the signage is as stated in the Particulars of Claim specifically in that there are no signs clearly displaying Terms and Conditions for entering private land at the site entrance, nor are there clear signs at prominent locations therefore they are not capable of creating a legally binding contract. Photographic evidence provided by the Claimant by way of their own Parking Charge Notice conclusively shows the signs to be not prominent at all and not obvious at the material time to a driver leaving the material parked vehicle and walking towards the exit. They are not clear, the photograph of the sign showing the Terms and Conditions is unreadable without the aid of artificial lighting, of which none is provided. The signage is complex and wordy, with the terms regarding Parking Charges for breach of conditions being in a subsection in a very small font of blue text on yellow background and does not refer to the amount of any Parking Charge, the amount of the Parking Charge is in a further subsection in an even smaller font of white text on blue background. The Defendant avers that any reasonable person would pay the £1 parking fee due at the material time rather than save £1 and risk a £100 parking charge if these Terms and Conditions were made obvious to them by means of clear and prominent signs. The Claimant is put to strict proof that the signage as stated in the Particulars of Claim was in place at the material time and that such signage was capable of forming a contract.
  
  
• The Defendant further avers that the signage is in breach of the Claimant’s own Trade Association’s Code of Conduct Part E Schedule 1, that the lack of clear and prominent signage differentiates this case from the Parking Eye vs Beavis case upon which the Claimant may rely, and that the signage fails the test of Lord Denning’s “Red Hand Rule”.
  
• It is denied that the Terms and Conditions signage across the entire site is clear, prominent, nor capable of creating a legally binding contract. The Defendant avers that any reasonable person would pay the £1 parking fee due at the material time rather than save £1 and risk a £100 parking charge if these Terms and Conditions were made obvious to them by means of clear and prominent signs. The Claimant is put to strict proof that the signage as stated in the Particulars of Claim was in place at the material time and that such signage was capable of forming a contract.
  
• 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 pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.
  It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a premature postal NTK, well before the timeline set out in paragraph 8 of the POFA, is unlikely to have been in the contemplation of the Claimant's principal.
  
• 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.
  
• The sum claimed includes a £60 charge for Debt Collection fees which the Claimant claims to be contractual. The Defendant has had a single automated letter from a Debt Collection organisation and therefore does not accept that £60 costs have been borne in this regard. The Claimant is put to strict proof that such charge has in fact been paid by themselves.
  
  
• The Parking Charge of £100 with a discount to £60 for early payment is excessive and unconscionable. In the case of Parking Eye vs Beavis the court allowed the charge of £85 as being agreed by the Defendant due to the unusual prominence of the Terms and Conditions signage upon which Mr Beavis noticed and agreed at the material time, and the charge was allowed in that it was broadly in line with Local Authority charges. The charge claimed in this matter is double the local authority charge of £50 and in the case of early payment more than double the local authorities discounted charge of £25.
  
• In summary, it is the Defendant's position that the Claimant has not complied with the PAP, the Claimant is issuing pieces of hybrid Charge Notices in order to issue premature NTK’s,the Claimant is claiming for sums which it has neither justified nor is entitled to recover, the claim 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 contained in this Defence are true.

KeithP

FredUp wrote: »

One thing that I'm confused about would be is the Claimant's PoC statement that the Defendant is the RK / Driver a valid claim, can they claim against either/or or would it be ok to include the not identifying a Cause of Action still apply?

Doesn't the third bullet point in your Defence cover that? Or am I missing your point?

FredUp

I left it in on the basis that someone would advise if it wasn't valid. I"ll also put the abuse of process double charging of the keeper bit back in