PCN County Court Claim

Jamboree_Bag

Le_Kirk wrote: »

Your points 2 & 3 do not make sense. You claim it is a public road, not private land (i.e. NOT a car park) but then you go on to say you didn't stay longer than the permitted time!! Good to see you have included the abuse of process points.

The driver presumed it was a public road, has parked there on many occasions as the signage was on a wall behind metal bollards on the other side of the parking space.
Should I just take point 2 out then?

Jamboree_Bag

Here's the defence, hopefully my final draft - I need to send this off tomorrow, so all help will be greatly appreciated.





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 XXXX, of which the Defendant is the registered keeper, appears from the sparse evidence supplied by this Claimant, to be parked on the material date on private land.

2.1. It is denied that a 'Parking charge notice' was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading scraps of paper in a red/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'Parking Charge Notice' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

2.2. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a PCN.

3. It is denied that the defendant parked for longer than the maximum period permitted, the sparse details in the particulars of claim specify no time period. The documents already in the defendants’ possession sent from the claimant are conflicting regarding timing and have not allowed a period of grace as required by the claimants own trade body the IPC, which constitutes a breach.

3.a The Notice to Keeper does not specify the actual period of parking to which the notice relates as required by Protection of Freedom of Information POFA 8 (2) a. The claimants “contravention reason” on the notice to keeper states “80) PARKED FOR LONGER THAN THE PERMITTED PERIOD” but only states the “Contravention time 10.15”. Therefore, according to POFA the claimant cannot, legally hold the keeper of the vehicle …………………...liable as stated in the Particulars of Claim.

3.b. Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either
(Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver.
The notice to keeper (the defendant) was Issued on 24.04.19 - Nine days after the alleged contravention date.


4. 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.

5. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The signage is attached to a wall and reads: 'By entering this private land you are entering into a contract with Vehicle Control Services'.

5.1. Vehicle registration XXXX had not entered past the bollards on the slip road into the area that displayed the signage and therefore had not entered into a contract with Vehicle Control Services.

5.2. Even if the Court is minded to consider that the car did pass that sign, the terms of the sparse and ambiguous signage make no offer available; there is no licence to park.

5.3. At best, parking without authorisation could be a matter for the landowner to pursue, in the event that damages were caused by a trespass. A parking charge cannot be dressed up by a non-landowner parking firm, as a fee, or a sum in damages owed to that firm for positively inviting and allowing a car to trespass. Not only is this a nonsense, but the Supreme Court decision in ParkingEye Ltd v Beavis [2015] UKSC 67, confirmed that ParkingEye could not have pursued a sum in damages or for trespass.

5.4. “County Court transcripts supporting the Defendant's position will be adduced, and in all respects, the Beavis case is distinguished.”

6.The Claimant, namely, Mr Renshaw-Smith is no stranger to having his misleading signs and meritless claims exposed by the courts. Some six years ago, he was reported as describing the court ruling damning his misleading signage in Excel v Cutts (Stockport County Court case no: 1SE02795) as ".....an embarrassment to the judicial system" reportedly describing the Judge as "not fit to serve the civil courts". And in 2012 in VCS v Ibbotson, case No 1SE09849, District Judge McIlwaine warned VCS' representative against bringing meritless claims to court, stating: ''I am dismissing your action [...] it seems to me this whole action is ill-founded. You have no right to bring this action. Moreover, on my interpretation of your Code of Practice, you are in clear breach. You have signed statements of truth which say you adhere to the Code of Practice. You do not. To sign a statement of truth when it is not correct has significant implications. I will tell you now after these proceedings I will issue an alert so you are clear. I have had this case in my court and all judges with this case and this dispute are advised to look at the terms and conditions of contract. If you continue to pursue those cases on this flawed premise, the consequences will be significant. If there is another case in the (Grimsby/Hull area) County Courts live by 4pm on Friday, you will be coming to see me and I suggest you bring a toothbrush. Am I clear?''


7.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.


7.1 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 “not a PCNs) to cars - following the procedure set out in paragraph 8 (2a) of the Protection of Freedoms Act

8.The Protection of Freedoms Act (POFA) Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery and it is attested that the costs on the claim are disproportionate and disingenuous.



9. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

10. 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.

11. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

12. 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 and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

13. 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.

14.Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:

15. 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.

16. 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.

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.

18. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''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 judgment 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...''

19. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

20.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 untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

21. 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.

22.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.

KeithP

Jamboree_Bag wrote: »

- I need to send this off tomorrow...

Why?

In post #5 above I wrote:

...you have until 4pm on Monday 28th October 2019 to file your Defence.

That post also explained how to file your Defence instantly.

Jamboree_Bag

Thanks Keith, I'm just feeling anxious about it and don't have a scanner!

Do you think I need 15. or should I take it out - I can't see its relevance.

Coupon-mad

Remove the inverted commas from #5.4, of course!

Some changes suggested here:

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, appears from the sparse evidence supplied by this Claimant, to be parked on the material date on [STRIKE]private land.[/STRIKE] what appears to be public highway - a road. There is no evidence that the kerbside and roadway at this location is private land and/or managed by any parking firm as if it were a car park.

5.1. Vehicle registration XXXX had not entered past the bollards on the slip road into the area that displayed the signage and therefore had not entered into a contract with Vehicle Control Services. It is trite law and covered by numerous Local Authority parking tribunal/PATAS key cases, that an area marked off by a change of tarmac and a barrier such as bollards, marks the area as separate from the public highway. This land is marked out in the same way, such that the sign on a wall inside the area enclosed by the bollards (which also has markedly different tarmac and appears to be separate) cannot reasonably be taken to relate to the road itself as well.

Jamboree_Bag

That's super! Thank you so much Coupon- Mad & all.
I'll change it now and have managed to blag a scanner/printer so will send this off at the end of the week - So relieved that this part is done - Will be updating again soon no doubt.
Bye for now!

Jamboree_Bag

Sorry, just a quick question - Should I send photo's with the defence or include those in the witness statement?
Thanks again.

KeithP

Jamboree_Bag wrote: »

Sorry, just a quick question - Should I send photo's with the defence or include those in the witness statement?
Thanks again.

Nothing gets sent with a Defence. Nothing at all.

Post #2 of the NEWBIES thread explains when evidence is filed and served.

Le_Kirk

Jamboree_Bag wrote: »

The driver presumed it was a public road, has parked there on many occasions as the signage was on a wall behind metal bollards on the other side of the parking space.
Should I just take point 2 out then?

It just needs to make sense but I see you have received further advice about rewording it.

Jamboree_Bag

KeithP wrote: »

With a Claim Issue Date of 23rd September, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 28th October 2019 to file your Defence.

That's nearly four 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 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.

Keith - You say here to email the defence - There is an option to do it on the MCOL website too where I did the acknowledgement of claim - little confused now as to where to send my defence?
Should I email or fill in the defence online?