Court Claim Defence

Falcon50

I'm new to this forum but I have been studying it for a long while now. I've read all the newbie advice, trawled through hundreds of posts and put together my defence against a parking charge Court claim by VCS for parking in a residential car park in early 2016 where I was a resident at the time.
My tenancy stated vehicles required permits if parking in the private car park owned by the landlord, although all tenants had a private garage. I had a day permit on the day in question, I emailed VCS on the same day to explain their error but they ignored me. I ignored further demands for payment, then moved house until most recently they traced me and issued a claim against me. I filled in the AoS on the MCOL site and now have until this Saturday 7th Sept to send in my defence. (28 days+5)

I therefore ask for advice on my defence as listed below, its long, probably too long but it puts all the points across, but I've been working on it for a couple of weeks now and probably need fresh eyes to take a look please. Some of the formatting has been lost in posting. Any advice appreciated on what to omit/add/change.

DEFENCE

Preliminary

1. The Particulars of Claim are non-specific and somewhat erroneous. 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 material 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
3. The Particulars of Claim state that the land was owned or managed by the claimant. This is erroneous. The Claimant should know which it is and not state various possibilities in the claim. This suggests a claim not specific to this case but instead generic claim.

Facts

4. It is admitted that on [**date**] the Defendant was the registered keeper of the vehicle noted in the claim and said vehicle was parked at a location known as [********], although the claim does not list a full address or valid postcode.
5. At the time of the alleged infraction the defendant was a resident at a place known as [********] and as a resident was entitled to park there. (Proof of the tenancy agreement will be evidenced in court).
6. A valid permit was displayed in the vehicle on the date of the alleged infraction as issued by the landlord’s representative (Ms [name here]).

Background

7. At the presumed site listed in the Particulars of Claim (an exact identifiable address is not given), in order to enforce resident only parking the landlord states on various notices on the doors of the managed properties that a parking permits must be displayed to differentiate genuinely valid residents vehicles right to park.
Parking in this area is for ‘residents only’ during the hours of 9am to 5pm, Monday to Friday, to prevent the general public and visitors to the neighbouring hospital from occupying the residential parking spaces at the site.
8. The defendant’s vehicle which is the subject of this alleged infraction, would normally be parked in the defendant’s garage (as allocated by the lease). However due to a reported water leak from the ceiling of the defendants garage the vehicle on this occasion was parked in one of the external parking spaces to allow the landlords maintenance manager to access the defendants garage to assess the source of the water leak from an apartment above. As such the same landlord’s representative issued a valid day parking permit (as will be evidenced in court) to allow the defendants vehicle to park in an external parking space without charge.
9. The agreed protocol (as explained to the defendant by the landlord’s representative) between the private parking company (VCS) and the landowner [**name here**] prior to issuing a parking charge was not adhered to. This requires the VCS parking operative to ask at the landlord’s office on-site (just 30 metres from parked vehicle) if any of the vehicles in the car park belonged to employees of the landlord or residents before issuing a parking charge notice. This did not happen. Furthermore, the defendant at the time of the alleged parking breach was inside his garage with the garage door open in plain sight of the vehicle. The VCS parking operative did not attempt contact despite it being obvious to do so as residents usually had to step out of their vehicles to lock or unlock garage doors prior to entering or exiting.
9.1 The vehicle was parked in the parking space for a period of approximately half an hour whilst the landlord’s maintenance manager inspected the water leak as described in item 8 above. The £100 parking charge for 30min parking does not represent a loss of revenue nor justified damages to VCS, notwithstanding the fact that the vehicle in question displayed a parking permit as issued by the landlord’s representative at the time.
10. The parking signs as displayed on the site are inaccurate. They state the parking charges apply “24 hours per day”. This is not correct as noted in item 7 above. For the claimant to have any legal claim the signage must at least display the correct information. This therefore brings into dispute whether any of the claimant’s claim is credible. Outside of Monday to Friday 9am to 5am any resident or visitor can park unhindered in any space without any permit (as many do without parking charge notices being issued).
11. The defendant emailed VCS immediately after the parking charge notice was issued to inform them of their error. No specific response was received except for a standard automated response email to acknowledge receipt.

Rebuttal

12. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
13. It is denied that there was any agreement as between the Defendant or driver of the vehicle and the Claimant
14. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
14.1. 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")
14.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
14.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
14.2.2. 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.
14.3 There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of ‘keeper liability’ as set out in Schedule 4:
‘There is no “reasonable presumption” in law that the registered keeper of a vehicle is the driver […] Operators should never suggest anything of the sort.’
14.3.1. The claimant may seek to rely on a questionable interpretation of the judgement in Elliott v Loake and endeavour to persuade the court that the case created a precedent amounting to a presumption that the registered keeper is the driver where no other evidence or admission exists.
14.3.2. No such precedent was created. Mr Loake was found guilty on evidence produced to a criminal standard, not simply on a balance of probabilities as is the case in the current claim.
14.4. To the extent that the Claimant may seek to allege that any such presumption exists, 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.
14.5 In addition, the Particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which 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.
15. It is further denied that the Defendant or the driver of the 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 vehicle to be parked by the landlord [**name here**].
16. It is stated in the Particulars of Claim that the debt relates ‘to parking charges’, which offers no indication of the basis for which a claim is being brought. There is no reference to what the original charge was, what the alleged contract denoted, nor anything which could be considered a fair exchange of information.
17. No proof is given to damages claimed by the Claimant. The claimant suffered no loss nor damages. The Claimant operated no business at the (assumed) site in question, they were not the landowners nor landlords. Therefore there is no lawful basis to pursue a claim for loss.
18. The claimant has not provided adequate detail in the particulars of claim for the defendant to file a full, relevant defence. In particular, the contract which has allegedly been breached has not been provided.
18.1. A parking charge can be issued for trespass, breach of contract, or a contractual charge. All of these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.
18.2. The claimant has disclosed no cause of action to give rise to any debt.
18.3. The claimant has given no indication of the nature of the alleged charge in the particulars of claim.

Alternative Defence - Failure to set out clear parking terms

19. 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
19.1. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances
19.2. However Jopson v Homeguard (2016) It was established in this case that the ruling of ParkingEye v Beavis (2015) does not apply to residential parking, and therefore the doctrine prohibiting an operator from imposing a penalty is still relevant.
19.2.1. Therefore, the charge in question is likely to be such a penalty unless there is found to be commercial justification (which, in a residential car park, is impossible) or it is found to be a genuine pre-estimate of loss (which is similarly implausible in a residential car park where the right to park is bestowed upon residents).
19.3. The Supreme Court found that £85 was not a genuine pre-estimate of loss in the Beavis case as there was no direct loss to the parking company. Therefore, commercial justification for charging residents and their visitors to park in their own spaces is untenable and unconscionable.
19.4 . There can be no legitimate interest in issuing charges to residents or their permitted visitors, and so the Beavis ‘test’ is not satisfied. Any such charge should be deemed a penalty not a charge.

Wholly unreasonable and vexatious claim

20. 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 VCS distinguished.
21. 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.
22. The Particulars of Claim state “the driver agreed to pay within 28 days but did not”. No such agreement was made as the driver has not been established prior to the claim.
23. It is denied that the Claimant has any entitlement to the sums sought.
24. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.
25. 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.
26. The Claimant, or their legal representatives, has added an additional sum of £60 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.
27. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £198.47, the Defendant avers that this inflation of the considered amount is a gross abuse of process.
28. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.
28.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist
29. PD16 Para 7.5 provides that where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done. The Claimant has failed to do so. This is critical in understanding whether the Claimant seeks to bring claims under the Protection of Freedoms Act 2012 (Schedule 4) or against the driver and the standards of proof which the Claimant will need to meet. The Particulars as drawn are vague and non specific.
30. Any purported 'legal costs' are also made up out of thin air. 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. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.
31. 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.
32. 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.
33. Most recently Judges have disallowed all added parking firm 'costs' in County courts and cases have been struck out as an Abuse of Process.
33.1 Case F0DP201T at Southampton Court, 10th June 2019, District Judge Taylor stated:
"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 not with reference to the judgement in parking eye 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 "
33.2 Case F0DP163T Newport (IOW) County Court, 21st February 2019, District Judge Grand stated:
“In addition to the 'parking charge', the Claimant has artificially inflated the value of the Claim by adding costs of £60 which has not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery”.
33.3 Both claims listed above were struck out without a hearing as an abuse of process
34. 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.
35. 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.
36. 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.
37. It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name.
38. Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass.
39. The court is invited to strike out the claim, due to no cause of action nor prospects of success.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

KeithP

Hi and welcome.

What is the Issue Date on your Claim Form?

A Defence filing deadline is never a Saturday.

The_Deep

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.

Falcon50

KeithP wrote: »

Hi and welcome.

What is the Issue Date on your Claim Form?

A Defence filing deadline is never a Saturday.

5th August was the date on the claim.

KeithP

Falcon50 wrote: »

5th August was the date on the claim.

I am going to assume you did the Acknowledgement of Service before 27th August. Please confirm.


With a Claim Issue Date of 5th 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.

Not long now.


When you are happy with the content, your Defence could be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. 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'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Falcon50

"I am going to assume you did the Acknowledgement of Service before 27th August. Please confirm."

Yes the AoS was done on 18th August

Falcon50

Do any of the experts on here have time to read my defence as posted above and pass comment please before I submit? I fear it may be way too long and send the judge to sleep, but if so I'm not sure what to omit as I've used many of the good defence arguments from this forum.

Falcon50

Anyone?
If no comments later I'll submit on MCOL as is and keep my fingers crossed.
Just got to add standard allowable costs in a counterclaim.
I'm angry about the whole fiasco and it's stressing me to the max. Even if I lose it's worth taking these cowboys to court to highlight to the judge how they rob people blind.

Le_Kirk

Don't add your defence to MCOL, follow the instructions given by KeithP in post # 5. Are you actually submitting a counterclaim? Cost schedule normally goes with the Witness Statement and evidence following on from defence and receipt and submission of DQ

Falcon50

Oh yes of course I have to email to CCBCAQ@justice.gov.uk
I didn't realise counterclaims are for later, there's a lot to take in despite reading other posts over and over again. I think I understand now.

Coupon-mad

Counter claims are not for later.

COSTS are not COUNTERCLAIMS.

I have not even read that defence, I scrolled to it and declare it far, far too long.

Start again with a MUCH more concise one linked in the NEWBIES thread, e.g. the residential one by bargepole!