Defence Deadline Help Please

Familyguy28

Hi Again,

I failed to mention, the family business received a PCN - They have chosen to pay it at Claim Form stage.

This is another reason I wasn't sure whether to include the above information as that doesn't really help fight my corner when they have chosen to pay theirs (My mum said she didn't want the stress). I however cannot afford to pay what they are asking for £200 plus interest of £60.48 plus £120 contractural costs plus £35 court fee and £50 Legal costs = £465.48

Also, does explaining the whole situation in detail identify me to them on here?

Thank you all again!

[Deleted User]

the defence should be legal points only, not the backstory

True. But the defence should at least explain what the case was about - when and where parked and what the case is likely to be (no contract, no infringement etc).

The version above is pure technical points stitched together. It can be sharpened up.

Even if you did want to pay, you ought to negotiate to strip out the costs that the claimant will know they are at significant risk of not recovering (+60 added to the charge; +interest incurred on the £60; +advocates fees/legal costs not incurred)

Familyguy28

Good Evening/Morning All,

Contrary to the advice I received, I have indeed left this until almost the last minute. (Life got in the way).

I will be submitting my defence tomorrow (around 2/3pm). I have stayed up all night compiling this. I understand this may have taken others minutes to write, but I have been reading endless threads and posts and really just ended up doing the best I could.

If anyone would like to make some last minute suggestions I would be extremely grateful - I understand this needs to be submitted tomorrow and I have therefore run out of time so please go easy on me as I have my 1 hour lunch break to check this website and then to get this printed and scanned in at work and submitted before 4pm.


N THE COUNTY COURT

CLAIM No: XXXXXX

BETWEEN:

PREMIER PARK LIMITED (Claimant)

-and-

XXXXXX (Defendant)

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 XXXXX, of which the Defendant was the registered keeper at the time, was parked on the material dates at XXXXXXX in an unmarked/unlined parking space causing no obstruction. The Defendant's vehicle was parked in an area which is situated at the rear of the Defendant's property close to the Defendant's fire exit door. The Defendant was parked in this area without a permit, but with permission from the Landowner and/or Residents and/or Caretaker of the property. Furthermore the area is gated and the Defendant was issued with a key to the gate by the Landowner, reinforcing the Defendants belief of permission to park there.

3. The Particulars of Claim state that they believe 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. It is denied that the Defendant was the driver of the vehicle on one of the two occasions in question. The Claimant is put to strict proof. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver on both occasions. 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"). Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper, something Premier Park previously failed to do in 2015 in their Notice to Keepers'. It is not admitted that the Claimant has complied with the relevant statutory requirements.

5. The Claimant is put to strict proof that it has sufficient proprietary 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. 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. If the offence committed is trespass, this is for the Landowner to pursue and not the third party parking agent.

7. 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. The Defendant has the reasonable belief that the Claimant has not incurred £120 costs to pursue an alleged £200 debt. The additional £120, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

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. The terms on the Claimant’s signage are also displayed in a font that is too small to be read from a passing vehicle, and in such a position that anyone attempting to read the tiny font would be unable to do so easily. The signs are not lit and are not visible from all parking spaces (there are no lined parking bays). The signs are also almost invisible at night due to the poor lighting. It is, therefore denied that the Claimant’s signage is capable of creating a legally binding contract.

10. In addition it is denied that the signs at this location met the mandatory test of transparency of terms that are ‘bound to be seen’ as set out within the Consumer Rights Act 2015. For a driver any terms relating to a parking contract would have had to have been extremely clear in all places within the site, in very large letters to ensure all drivers were ‘bound to see’ the terms.

11. The signage was erected without prior warning or notice in the period of XXXXXXX. The Claimant failed to highlight this change of contract terms as demanded by British Parking Association Approved Operator Code of Practice (version 7 January 2018, Clause 18.10 ) "Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.”
IPC Code of Practice (Part E, Schedule 1 - Signage. Changes in Operator’s Terms and Conditions) also states "Where there is any change in the terms and conditions materially affecting the motorist you may place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur parking charges. This signage should be in addition to the signage ordinarily required." Since the material date the signs have not been maintained or updated and have fallen into a state of disrepair.

12. 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. 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.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Redx

Bear in mind that you can take a picture of your signature on a white piece of paper and add it to the pdf as a digital signature, instead of printing the defence , signing it and scanning it in order to save as a completed pdf

A digital signature is just as good and can be reused in future

Just a thought

I cannot see anything about the abuse of process if they added extra charges ?
From the sum being claimed it's clear they added them on

It was also in the previous draft

Familyguy28

Hi,


Thank you so much for replying, can you please advise which paragraphs from my draft I should add back in?


thank you again!!!

Le_Kirk

Familyguy28 wrote: »

Thank you so much for replying, can you please advise which paragraphs from my draft I should add back in?

All those relating to Abuse of Process, effectively, from your first draft everything from 12 onwards - but do check that when you have done this you don't have any duplication and that you have numbered ALL paragraphs sequentially.

Redx

As above ^^^^^^^^^^^^^

Familyguy28

Thank you again for your responses, does everything else included look ok?

Familyguy28

Hi again,
I am really not sure how to add this back in without re-structuring the whole thing.


I feel like I've made it worse than it was before and it's now not a concise defence when I was just trying to explain the facts and not just cut and paste another defence.


I am running out of time and not sure what to do

Redx

I would add them after 11) and renumber so 12 becomes the last number , previously it was 20) so possibly similar ?

I also noticed a paragraph talking about the BPA Cop and also the IPC CoP , I have no idea why both are mentioned , as PP is in the BPA afaik