Building my defence

Jon_777

Hi

I am reluctant to start a thread, however I have gone through the Newbies stuff and loads of other threads and can find some bits and pieces that relate to my case, but I’m not confident I have enough to build and write my defence... So any help will be really appreciated.

So I have a County Court Letter from BW Legal representing Premier Park Ltd issued 5th September 2019. I sent the Acknowledgment of service off on 16th September. Now I need to file my defence.

So the claim is for 2 PCN’s at the same car park 4th Dec 2017 & 8th April 2018 at the Gym where I was a member at the time. Free parking for members and you enter your number in a keyboard. Whether on these occasions I forgot, or it didn’t register I cannot be sure. I used to go several times a week at the time. When I received the PCN I spoke to the Gym manager and was told they get loads of these. He would contact Premier Parking and said I should ignore any further letters. However now it has got to this ridiculous stage of a Court Claim I regret ignoring the letters, some 5 letters for each PCN from 2 different debt recovery companies. The claim has got to £408.10 from 2 £100 PCN’s.
I have recently been back to the Gym to explain what has happened, and surprise surprise the Manager I spoke to originally does not work there anymore. The current manager explains to me that it is not their policy to tell people to ignore the letters, but could understand the former manager might have said this in the early stages of this parking process. However this will not help me now. She did however call a contact at Premier Park and they could not or would not help me.
I have started to draft my defence by copy and pasting a few paragraphs from other threads, but I am not really sure what my defence can be. So I’ve hit a wall.

Can anyone help me find the right way forward please?

KeithP

Jon_777 wrote: »

I have a County Court Letter from BW Legal representing Premier Park Ltd issued 5th September 2019. I sent the Acknowledgment of service off on 16th September.

Hi and welcome.

With a Claim Issue Date of 5th September, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 8th October 2019 to file your Defence.

That's a little over a week 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 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.

If you haven't done so already, then have a look at the seventeen examples of winning Defences linked from post #2 of the NEWBIES thread. I give you a link to that NEWBIES thread above.

Redx

Add the concise defence by bargepole

Add a section or sections that address the POC

Add a section on no landowner authority or contract

Add a bottom set of numbered paragraphs on abuse of process regarding the added spurious costs , by renumbering all paragraphs

Then post the draft below for critique

Jon_777

Hi Guys
Thank you for your guidance so far. I have drafted my defence having copied various paragraphs that I hope are relevant to my case.
I have also added a witness statement, however I shall not send this with my defence , just save for when required.
What do you think?

IN THE COUNTY COURT
CLAIM No: Xxxxxx
BETWEEN:
Premier Parking Limited (Claimant)

-and-

Xxxxxxx (Defendant)

DEFENCE



1. The Defendant was the registered keeper of the vehicle in question at the time of the alleged Parking Charge Notices. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at Xxxxxxxx. Xxxxxxxx xxxxxxxx xxxxxxxxxx.

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notices ('PCN's)'.

1.2. The Claimant has spent almost 2 years harassing the Defendant with ever increasing and intimidating demands pursuing this baseless charge, sending debt collector letters and causing the Defendant and their family significant distress, despite having no basis to charge £100 and despite knowing that the parking tariff was not due, for the time on site.

2. The allegation appears to be based on a parking charge notice ('PCN') that was not due as the defendant was attending Fitness First, Xxxxxxxx xxxxxxxxx xxxxxxx

3. Claim number is F0DP201T District Judge Taylor
Southampton Court, 10th June 2019

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 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 "
No legitimate interest - the penalty rule remains engaged

4. 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 in these circumstances, and to pursue payment in the court in their own name. Even if they hold such authority, the Claimant is put to strict proof that this authorisation expressly allows litigation against patrons even when the business in fact supports the Defendant in wanting an unfair charge to be cancelled.

5. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When - all too often at this location - Premier Park unfairly harvest the data of a registered keeper to charge a genuine patron, any commercial justification in the form of landowner support for such unfair ticketing is de facto absent.

5.1. Further, there was no overstay nor any mischief to deter, nor was there any misuse of a valuable parking space by the Defendant, whose car was parked in good faith, not in contravention nor causing an obstruction, and was certainly not 'unauthorised'. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant's claim is reduced to an unrecoverable penalty and must fail.

5.2. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.

6. In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to input their VRN into an unseen keypad, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.

7. This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' (the ICO Code). This is both a specific Data Protection and BPA Code of Practice breach. The Supreme Court Judges in Beavis held that a Code of Practice is effectively 'regulation' for this blatantly rogue industry, full compliance with which is both mandatory and binding upon any parking operator.

8.1. The ICO Code applies to all ANPR systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the BPA are required to comply fully with the Data Protection Act (DPA) and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land. At this location, the Claimant has failed on all counts and the data gathered about patrons of the site is unconscionable and excessive, given the lack of transparency about the risk of a charge for failing to do something that the driver never knew was a requirement.


Lack of good faith, fairness or transparency and misleading business practices

9. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons could not miss the keypad(s) and secondly, could not miss the fact that, if they did receive an unfair PCN as a genuine customer, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading and punishing customers and extracting as much money as possible in three figure penalties, given that this is the only way Premier Park make any money.

10. The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that Premier Park withheld the option of landowner cancellation all along.

10.1. By failing to adequately alert patrons to the keypad, and then withholding from the registered keeper any/all information about the 'user agreement' with the landowner which would have enable an immediate route of cancellation, are 'misleading omissions' of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case). As such, this claim must fail.


Inflation of the parking charge and double recovery - an abuse of process

11. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.

12. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £50, which have not actually been incurred by the Claimant. Premier Park Ltd have not expended any such sum in this case, given that they have a Legal Team with salaried in-house Solicitors and (shamefully) this firm whose main business is supposed to be parking 'management' as a service provision, files tens of thousands of similar 'cut & paste' robo-claims per annum. No genuine legal costs arise, per case, and their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.

13. The added 'legal' cost is in fact an artificially invented figure, which represents a cynical attempt to circumvent the Small Claims costs rules and achieve double recovery. According to Ladak v DRC Locums UKEAT/0488/13/LA, a Claimant can only recover the direct and provable costs of the time spent by legally qualified staff on actually preparing the claim and/or the cost of obtaining advice for that specific claim, in a legal capacity.

14. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/signature


Date

---

Witness Statement

---

1. I am Xxxxxxx xxxxxxx, of xx xxxxxxxx xxxxxxxx , the Defendant in this matter. I will say as follows:

2. I was a bona fide member of the Fitness First Gym xxxxxxxxx xxxxxxxx and attach evidence of membership as Exhibit A.

3. On both 4th December 2017 and 8th April 2018, I visited the Gym, and parked my vehicle registration no, Xxxx xxx in the car park.

4. Gym members are granted exemption from parking charges whilst using the Gym. Evidence of this is contained in a confirmation letter provided by the Gym, dated XXXXX, and attached as Exhibit B.

5. Upon receipt of both parking charge notices from the Claimant, I spoke to the Gym manager at the time. They explained to me that they have loads of these situations, they would contact Premier Park Ltd and I should ignore any further letters. However, The Claimant continued to send letters via 2 different Debt recovery Companies and now they have elected to pursue this matter via litigation.

6. It is my position that, under the doctrine of promissory estoppel, the Claimant has no standing, or cause of action, to litigate in this matter.

7. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth

I believe that the facts stated in this Witness Statement are true.

Signature
Date

Coupon-mad

So the claim is for 2 PCN’s at the same car park 4th Dec 2017 & 8th April 2018 at the Gym where I was a member at the time. Free parking for members and you enter your number in a keyboard. Whether on these occasions I forgot, or it didn’t register I cannot be sure.

No idea why you didn't just use & adapt the REALLY SIMILAR example defence in the NEWBIES thread - the one all about this same scenario.

There are only 17 to look at, and it's right there.

The_Deep

Nine times out of ten of 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