ukppo bwlegal - defence review help

alpha0123

Hi The Deep,


Yes, though about it but with the next election round the corner didnt see the point. so would have to wait for just over month to do this. I would probably keep that ready to send immidiately after that.


many thanks

alpha0123

hi, Please can you take a look at my updated defence. I included some relevant information to my case based on JesterShoe's thread 'Miss R versus VCS Ltd'.

Many thanks,
alpha0123





IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

UK Parking Patrol Office Limited
(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.
2.1. The Defendant requested details regarding the Parking Charge Notice(s) (PCN) issued by the Claimant after their letter of claim dated [date] and as of [date] received no details nor any return communication from the Claimant.
2.2. The Claimant hasn’t fulfilled their responsibilities with regards to the Defendant’s request for the information related to the PCNs under the General Data Protection Regulation (GDPR), of the Data Protection Act 2018. This prejudiced the Defendant in preparing a robust Defence. This breach has been reported and a complaint regarding this non-compliance of GDPR has been raised with the Information Commissioner’s Office (ICO) on [date].

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. The Defendant’s vehicle was parked in the allocated bay number [xxx] and has done since taking up residency of apartment [xxxxxxxx] on [date]. No other car is entitled to park in the space as the space is owned (Deeded) by the Defendant’s Landlord.

6. The Defendant carried out research after having received the PCN from the Claimant about the parking signs and the Claimant is put to strict proof.
6.1. 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").
6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
6.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
6.2.3. It is not admitted that the Claimant has complied with the relevant statutory requirements.

6.3. 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
7. 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.
7.1. The costs are manifestly excessive and unconscionable considering the Defendant lives at the address and pays rent on the property which includes the use of the allocated parking space. The parking bay in question is designated to only the Defendant's home.
7.2. The Defendant was parked within the lines and the lease does not state that the Defendant (lodger) needs a valid permit to park.
7.3. The Defendant’s landlord doesn’t have a driving license and doesn’t drive or own a vehicle that is parked in the parking bay in question. The Defendant is the only lodger at the address.
7.4. The Defendant’s landlord has always provided a valid parking permit to the Defendant for every year (or part thereof) from the beginning of the tenancy. A copy of all the parking permits from the start of the tenancy will be provided to the Court.

8. 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.

9. Accordingly it is denied that:
9.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.2. there was any obligation (at all) to display a permit; and
9.3. 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
10. 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.
10.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
10.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
10.1.2. 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
10.1.3. 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
10.2. 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.
10.3. 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.
10.4. 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.
10.5. 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.

11. 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.

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


13. 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.


14. 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.


15. 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 £200 (2 x £100) - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £404.64, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

16. 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.

16.1. 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

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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 link]

“
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.''
”
23. 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.

24. 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.

25. The POFA Schedule 4 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.

26. 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...''

27. 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.''

28. 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.

29. 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.

30. 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

parkingfella

Hi Alpha0123. My situation is pretty much the exact same as yours (even to the defence submission deadline of 13 November) and my thread link and title is below.

Please feel free to crib anything from my defence that you think may be useful. I'm still making final tweaks and will probably use some of the helpful wording in yours.

Link - forums.moneysavingexpert.com/showthread.php?p=76474116#post76474116

Title - UKPPO Defence for no permit in residential space

Umkomaas

Over 3,300 words long.

Compare it to the number of words used in the specimen defence constructed by legally qualified and practising advocate bargepole to help newbies set out their own.

Just 517 words.

Also read his advice on paragraph numbering in the NEWBIES FAQ sticky, post #2

1505grandad

Couple of observations (assuming they will feature in amended D suggested above):-

"7.2. The Defendant was parked within the lines a....." - should that be "The Defendant's vehicle was parked...

Para 10.1.2 - IPC = International Parking Community

Le_Kirk

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

Proof of what? That sentence just stops!

As said by others it is quite long and some of that defence would be better placed in the Witness Statement and/or evidence. Don't have links in defences, courts will not follow them; just put the title to which it refers (ParkingEye v Beavis)

I cannot find any reference to landowner authority.

All paragraphs require a number.

Good to see you have the latest Abuse of Process points including Caernarfon.

alpha0123

Hi Umkomaas,


thank you for looking at my defence.


I have a few questions about your suggestion(s): [I dont think I can post links being a new member on the forum, so do apologies for the lengthy reply...]
1. I believe you are referring to bargepole’s post linked in post#2 of the NEWBIES FAQ sticky under this “A defence by bargepole, showing that a defence about unclear signs should be written concisely” which is just over 500 words.
I started off with Johnersh’s post linked in post#2 of the NEWBIES FAQ sticky under “defence for an 'own space' residential site, by Johnersh who is legally qualified” which is just over 1100 words. This again is followed by one written by coupon-mad / bargepole linked in post#2 of the NEWBIES FAQ sticky under “one written by me but based on a template by bargepole (legally qualified), about a residential space (this one has a point about the site being secured by key fob)” which is also just over 1000 words.
1.1. I am writing a defence against PCNs by UKPPO over residential parking in a non gated parking area, so am I mistaken on the correct template to follow?


2. I assume beamerguy’s thread on “abuse of process”, especially coupon-mad’s post#14 is a recommended addition to the defence for PCN’s where additional charges in addition to the so called “penalty” / “parking charge” (the original claim of original £85 /£100) is being added?
2.1. This adds on about 1500 words or so the defence.


3. Paragraph numbering: If you are referring to the paragraph’s between 22 and 23, these are quoted paragraph’s from previous cases as suggested in the “abuse of process” thread, which I believe would be formatted with an offset from usual paragraph beginnings in a word processor but doesnt turn out well in the forum post.


Many thanks,
alpha0123

alpha0123

Hi bargepole, johnersh, coupon-mad, beamerguy,


many thanks for the numerous templates and suggestions over time and especially in the NEWBIES FAQ sticky. this is of great help for newbies like me!!


regards, alpha0123

alpha0123

Thank you parkingfella, shall read yours shortly!
all the best with your defence.

alpha0123

1505grandad, Thank you for spotting IPC especially!!:T (i remember changing that in a older version, must have muddled it up while editing / adding )