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PCN Defence feedback needed
M0810
Posts: 3 Newbie
Hi,
Just writing a defence and was looking for some advice and feedback please. The car was issued a PCN whilst in a private car park in a marked bay allocated to the keeper of the car.
Thank you in advance.
Defence
Preliminary
1. The Particulars of Claim lack specificity and do not contain any evidence on contravention or photographs. These documents and the letter before the County Court claim; should have been produced, pursuant to paragraph 6 of the Practice Direction; Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or take stock pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017).Therefre the Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
2. The Particulars of Claim fail to refer to the specific breach of the terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.
3. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
Background
4. It is admitted that the Defendant is the registered keeper of vehicle registered [car] which is the subject of these proceedings.
5. It is admitted that on [date] the Defendant's vehicle was parked at [address]in allocated bay [number] to Horizon Parking Ltd and had a valid permit to be parked in that bay.
6. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
6.1. 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"). Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
6.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.
6.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
7. The Claimant failed to meet the Notice to Keeper obligations, as it states i the Protections of Freedoms Act 2012 (POFA, 2012).
4(5) The max sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the Notice to Keeper under paragraph 8(2)(c) or (d).
7.1 Neither the signs, nor the NTK mentioned a possible £248 for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.
8. The Claimant did not comply with the POFA (2012) and give the registered keeper at any point an opportunity to identify the driver. A NTK can be served by ordinary post and the POFA requires that Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. This would exclude the registered keeper being liable for any charges.
9(4) The notice must be given by -
Handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
Sending it by post to a current address for service for the keeper.
9. The notice was not handed to the keeper, nor was it served within 14 days of the incident.
10. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of the claim are templates, so it is simply not credible that £50 legal representative’s costs were incurred. The Defendant believes that Horizon Parking Ltd has artificially inflated this claim. They are claiming legal costs which not only is this not permitted (CPR27.14) but he Defendant believes that they have not incurred legal costs. According to Ladak V DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. If the Claimant alleges they claim the cost of in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimants business plan.
Authority to Park and Primacy of Contract
11. It is denied that the Defendant or lawful users of her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupant and leaseholder of bay [Number] at [address] whose tenancy agreement permits the parking of vehicle(s) on land and in the allocated bay. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit.
12. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.
13. Accordingly it is denied that:
13.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant; and
13.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
Alternative Defence - Failure to set out clear parking terms
14. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of 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.
14.1. The Defendant avers that the parking signage in this matter was, without prejudice to her primary defence above, inadequate.
14.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
14.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
14.1.3. 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. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgement of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
14.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.
15. It is 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.
16. It is denied that the Claimant has any entitlement to the sums sought.
17. 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. On the 10th of June 2019 in case F0DP201T, 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: District Judge Taylor 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 judgement 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".
18. 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.
19. In summary, it is the Defendant's position that the claim discloses no cause of action, 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.
STATEMENT OF TRUTH
I believe the facts contained in this Defence are true.
Just writing a defence and was looking for some advice and feedback please. The car was issued a PCN whilst in a private car park in a marked bay allocated to the keeper of the car.
Thank you in advance.
Defence
Preliminary
1. The Particulars of Claim lack specificity and do not contain any evidence on contravention or photographs. These documents and the letter before the County Court claim; should have been produced, pursuant to paragraph 6 of the Practice Direction; Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or take stock pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017).Therefre the Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
2. The Particulars of Claim fail to refer to the specific breach of the terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.
3. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
Background
4. It is admitted that the Defendant is the registered keeper of vehicle registered [car] which is the subject of these proceedings.
5. It is admitted that on [date] the Defendant's vehicle was parked at [address]in allocated bay [number] to Horizon Parking Ltd and had a valid permit to be parked in that bay.
6. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
6.1. 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"). Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
6.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.
6.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
7. The Claimant failed to meet the Notice to Keeper obligations, as it states i the Protections of Freedoms Act 2012 (POFA, 2012).
4(5) The max sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the Notice to Keeper under paragraph 8(2)(c) or (d).
7.1 Neither the signs, nor the NTK mentioned a possible £248 for outstanding debt and damages. The additional costs, which the defendant contests have not been incurred, are none of its concern.
8. The Claimant did not comply with the POFA (2012) and give the registered keeper at any point an opportunity to identify the driver. A NTK can be served by ordinary post and the POFA requires that Notice, to be valid, must be delivered no later than 14 days after the vehicle was parked. This would exclude the registered keeper being liable for any charges.
9(4) The notice must be given by -
Handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
Sending it by post to a current address for service for the keeper.
9. The notice was not handed to the keeper, nor was it served within 14 days of the incident.
10. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of the claim are templates, so it is simply not credible that £50 legal representative’s costs were incurred. The Defendant believes that Horizon Parking Ltd has artificially inflated this claim. They are claiming legal costs which not only is this not permitted (CPR27.14) but he Defendant believes that they have not incurred legal costs. According to Ladak V DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The Defendant denies that the Claimant is entitled to any interest whatsoever. If the Claimant alleges they claim the cost of in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimants business plan.
Authority to Park and Primacy of Contract
11. It is denied that the Defendant or lawful users of her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupant and leaseholder of bay [Number] at [address] whose tenancy agreement permits the parking of vehicle(s) on land and in the allocated bay. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit.
12. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.
13. Accordingly it is denied that:
13.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant; and
13.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
Alternative Defence - Failure to set out clear parking terms
14. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of 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.
14.1. The Defendant avers that the parking signage in this matter was, without prejudice to her primary defence above, inadequate.
14.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
14.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
14.1.3. 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. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgement of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
14.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.
15. It is 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.
16. It is denied that the Claimant has any entitlement to the sums sought.
17. 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. On the 10th of June 2019 in case F0DP201T, 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: District Judge Taylor 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 judgement 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".
18. 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.
19. In summary, it is the Defendant's position that the claim discloses no cause of action, 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.
STATEMENT OF TRUTH
I believe the facts contained in this Defence are true.
0
Comments
-
So Horizon are the PPC
Post the issue date from the top right of the claim form below0 -
Yes Horizon
The issue date is 6th August.
Thank you0 -
So you have 33 days from the 6th of Uagust, assuming youve completed teh AOS
Have you? If not then go ONLINE TODAY and do it.0 -
Have you seen these?
https://forums.moneysavingexpert.com/discussion/5969018jestershoe&page=5 - post 93 et seq
https://parking-prankster.blogspot.com/2016/11/residential-parking.html
Nine times out of ten these tickets are scams so consider complaining to your MP.
Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.You never know how far you can go until you go too far.0 -
Yes I have completed the AoS.0
-
The issue date is 6th August.
With a Claim Issue Date of 6th August, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 9th September 2019 to file your Defence.Yes I have completed the AoS.
That's over two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
- Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.
0 - Sign it and date it.
This discussion has been closed.
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