ukppo bwlegal - defence review help

alpha0123

hi,


I had 2 PCN's from UK Parking Patrol Office (UKPP) and eventually the robo claims from glenstones, DRP, etc dated in Jun 2018 (this is PCN) for the privilege of parking in my allocated parking spot in a rented accommodation. I have had a parking permit for more than 2 years for the spot, and currently hold a valid permit as well.


I ignored all those based on the forum posts here :T:D


They sent a letter before claim and as suggested elsewhere here, i sent SAR to UKPP and defer processing to BW legal through email, ignored & no reply (even after a month) for the former and 'wouldnt stop' (as already predicted elsewhere on this forum) reply from the latter.


On the 11 Oct 2019 BW legal issued a N1 claim form through County court and i have already done the acknowledgement of service through MCOL. i believe i have until either 8 or 13 Nov to send my defence via email to the County court business centre.
I have so far managed to do (cobble together) a draft of my defence based on a number of forum posts and links from the newbie stickie (thanks to many extensive templates / posts from people like Coupon-mad, beamerguy, johnersh, and many others).


i would be very grateful if somebody can have a quick look through and provide suggestion(s) for correction if any is needed.


i also have few questions:
1. previously when i checked a few months ago, UKPP werent listed in BPA, now they seem to show up in BPA members list. so should i remove reference to IPC in my defence para#8.1.2?


2. i sent SAR but no reply from UKPP and the only say "no permit" in the notice left on the car, where as in the lbc they claim "...you were granted a limited contractual license to enter private land..". So should i state they didnt bother replying SAR and hence didnt allow me to make an informed defence explicitly? i believe defence para#1 & para#2 state this, but is that enough?


3. are para#12 to para#14.1 a bit repetitive? as beamerguys thread on abuse of process and especially coupon-mad's post #14 in that is thread i think is recommended to be added to our defence.


4. also para#21 originally in coupon-mads reply stated "... no solicitor is likely to have supervised..." where as my N1 claim form has the lovely so called "supervising solicitor - Zarv..." to have filed the claim ( i suspect online, so no signature to trace..). so i have remove part of the para... should i remove it in its entirety?


Many thanks for your time and helping out so many of us from such scammers.


kind regards,
alpha0123


defence
==============================================

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

[NAME OF PARKING COMPANY]
(Claimant)

-and-

[NAME OF DEFENDANT]
(Defendant)


DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. 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. 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.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings.

4. It is admitted that on [date] and [date] the Defendant's vehicle was parked at [location]

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. 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")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. 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.

5.3. 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.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/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 occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. 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. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

7. 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. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. 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 clearly parking terms
8. 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.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.1.2. 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
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. 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.
8.3. Further and in the alternative, the signs refer to 'No unauthorised parking', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no permission, there is no offer, and therefore no contract.

8.4. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

8.5. In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

9. 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.

10. It is denied that the Claimant has any entitlement to the sums sought.


11. 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.


12. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. 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.


13. 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 £xxx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

14. 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.

14.1. 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 case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.


Costs on the claim - disproportionate and disingenuous

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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:


##bailii.org link, forum doesn't allow me to post links###

“
at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

at para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.''

at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''
”
21. 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.

22. 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.

23. 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.

24. 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...''

25. 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.''

26. 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.

27. 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.

28. 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.


STATEMENT OF TRUTH
I believe that the facts stated in this Defence are true.


Name

Signature


Date

Le_Kirk

You state quite categorically that you were not the driver (at the time of this incident) but if you are asked a direct question by the judge, can you truthfully say you were not the driver? If you were not the driver, you seem to show an awful lot of knowledge about the signage! Presumably it is because you live there but it might be worthwhile stating just before the points about the signs that "the defendant carried out research after having received the PCN."

All paragraphs require a number ESPECIALLY those copied from the Abuse of Process thread which only carry a hyphen, something done by Coupon-mad when she posted it, as she does not know where it will fit into posters' defences but does make it quite clear that numbering is required.

KeithP

alpha0123 wrote: »

On the 11 Oct 2019 BW legal issued a N1 claim form through County court and i have already done the acknowledgement of service through MCOL. i believe i have until either 8 or 13 Nov to send my defence via email to the County court business centre.

With a Claim Issue Date of 11th October, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Wednesday 13th November 2019 to file your Defence.

That's 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.

alpha0123

hi Le_Kirk,

many thanks for taking the time to read through.

replies to your comments:
1. yes i was the driver, but i seldom use my car during the week for work and hence its parked in the same allocated spot (sometimes for upto weeks or a month). i cant say otherwise if a judge asks a direct question. I only noticed after a few days after the second PCN was issued that there was something on my windscreen. So i probably should adapt it to avoid stating that and still include the rest of para #5 to make the Claimant prove that, including their contracts with the management company?
1.1. Yes, i have lived there a few years now and as part of my rental the car parking spot is included and says i am allowed to use in my contract with my landlord. he also has provided me with the permit every year.
1.2. I took a photo of the signage after they issued these PCN's and it says "No unauthorised parking" in probably 1 inch high lettering in about a A3 sized yellow board. I presume (and my landlord agrees) that i am entitled to park there and hence authorised to park... so the contract they put on the board doesnt apply to me right? as stated in para #6 of my defence.
1.3. Previously other people were contantly parking in that spot whenever i returned from a trip over the weekends (long before the PCN) and my landlord highlighted this to the management company and forwarded my email to them. their reply was to just a leave a note on those cars but now their enforcement agent's UKPP have claimed monies for parking in my allocated spot.
1.4. Probably i can edit para #5 to say (including your comments):

5. The defendant carried out research after having received the PCN about the parking signs and the Claimant is put to strict proof.

2. Yes i noted that and added the numbers. if you are refering to the text between para#20 and para #21, it was a quoted text from another case from coupon-mad's reply which didnt comeout correctly after pasting that in my reply. I actually / luckily copied all the text to a word processor before clicking submit as it failed a few times last night. took me a best part of 20mins to just submit not on that page.

kind regards,
alpha0123

alpha0123

hi KeithP,


many thanks for your time

1. ok, 13 Nov it is:T

2. Yes, i have noticed that you have highlighted this in quite a few forum posts. will do that as apprently this is due to formatting issues on MCOL?



kind regards,
alpha0123

Coupon-mad

You should search the forum for UKPPO and send a pm to the others with residential defences in hand; I can recall 2 or 3 in October and one of them might be a neighbour from the same site, and you can help each other with evidence etc.

alpha0123

Hi Coupon-mad,


thank you, i have searched for ukppo and found a few similar to mine but through pm i found that they were all different residential areas and also gated. mine is not gated parking area.


i am going through similar (but slightly older) threads now and shall post an another updated version soon.


also, how can i edit my thread title - just want to update it include UKPPO instead of ukpp currently? do i need to talk to an admin to do this?


many thanks

Redx

you can try advanced edit on post #1 above using a laptop


alternatively , pm a board guide with your preferred thread title and they will edit it for you

KeithP

alpha0123 wrote: »

also, how can i edit my thread title - just want to update it include UKPPO instead of ukpp currently? do i need to talk to an admin to do this?

Go into edit on your opening post.
Click on Go Advanced.
Type what you want into the Title box.

The_Deep

[FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP after the election, it can cause the scammer extra costs and work.

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.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT]

alpha0123

Hi Redx, KeithP,


Much appreciated, updated the title - so future searches with PPC name should turn up correctly.