ukppo bwlegal - defence review help

alpha0123

[FONT=&quot]Hi, I have read a few other threads as well and some seem to suggest the WS is usually longer than the Defence. [/FONT]
[FONT=&quot]I looked at reducing / removing some of the paragraphs from the abuse of process bit in my defence, but I don’t want to lose the quotes of the two prior cases this year and reference to Beavis and Ladak as well regarding the costs hoping the presiding Judge wouldnt be put off by the lengthy submission...[/FONT]
[FONT=&quot]As I believe primacy of contract is my main defence, so I have moved the pofa related ones below it. Also if the experienced forum-ers think its still very long, would I be able to remove 6.1, 6.2, 11.1, 11.2, 11.3, 15.5, 15.6 without significantly modifying/losing meaning from my defence?[/FONT]
[FONT=&quot]Also in the abuse of process, would I be able to remove 20 to 23, and 26 without significantly losing the reason for having the “abuse of process” points? All these i can have in my WS.
[/FONT]

[FONT=&quot]Many thanks for your time and effort.[/FONT]

[FONT=&quot]attached is my latest draft:[/FONT]





[FONT=&quot]IN THE COUNTY COURT[/FONT]

[FONT=&quot]Claim No.: XXXXXXXX[/FONT]

[FONT=&quot]Between[/FONT]

[FONT=&quot]UK Parking Patrol Office Limited[/FONT][FONT=&quot]
(Claimant)

-and-

[NAME OF DEFENDANT]
(Defendant)


DEFENCE[/FONT]

[FONT=&quot]
Preliminary

[/FONT]
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

[FONT=&quot]2. 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.[/FONT]
[FONT=&quot]
3. 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.[/FONT]
[FONT=&quot]
Background

[/FONT]
[FONT=&quot]4. 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.

5. It is admitted that on [date] and [date] the Defendant's vehicle was parked at bay number [xxx] at [location].[/FONT]

[FONT=&quot]6. The Defendant’s vehicle was parked in the allocated bay number [xxx] and the Defendant 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.[/FONT]
[FONT=&quot]6.1. The Defendant’s Landlord has granted the Defendant the right to park based upon the demise, grant and/or easements within his own lease to the Defendant.[/FONT]
[FONT=&quot]6.2. It is averred that the Defendant is entitled to rely upon the parking rights granted from the landlord, and further up that chain of authority, the landlord is entitled to rely upon his primacy of contract within his lease, in order to grant his tenants an unfettered right to park.[/FONT]

[FONT=&quot]7. The Claimant is put to strict proof of their due diligence by inspecting the Head Lease and considering the rights of the residents of (Location), prior to commencing enforcement. This is a location where residents already enjoyed rights that cannot be varied, restricted or charged for, outwith a lease variation (Landlord & Tenant Act 1987). Where a majority of the leaseholders agree to any proposed variation, if there are less than 9 leases all or all but one of the parties must consent and if there are more than 8 leases, 75% of the parties must consent, and not more than 10% must not object to the proposed variation. This degree of consensus is notoriously hard to achieve and it is averred the Claimant has simply not bothered, and merely set up some signs and imposed rules upon people out of the blue, causing an ongoing private nuisance to those affected.[/FONT]

[FONT=&quot]8. 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.[/FONT]

[FONT=&quot]9. It is denied that any parking charges “loss and/or damage” (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.[/FONT]

[FONT=&quot]10. 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 enforcement’. It is not admitted that the claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further to this, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land – not merely another contractor or site agent not in possession – in order to commence proceedings.[/FONT]

[FONT=&quot]Authority to Park and Primacy of Contract[/FONT]

[FONT=&quot]11. 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.[/FONT]
[FONT=&quot]11.1. 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.[/FONT]
[FONT=&quot]11.2. Primacy of contract cannot be amended by Private Parking Company signage unless the Tenant has agreed to a variation of their Tenancy Agreement, which the Defendant has not.[/FONT]
[FONT=&quot]11.3. If the Defendant did possess a permit, displaying it would be a courtesy, not a matter of[/FONT][FONT=&quot]contract or obligation.[/FONT]

[FONT=&quot]12. 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.

13. Accordingly it is denied that:
13.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
13.2. there was any obligation (at all) to display a permit; and
13.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.[/FONT]

[FONT=&quot]14. 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).
14.1. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
14.1.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
14.1.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
14.1.3. It is not admitted that the Claimant has complied with the relevant statutory requirements.
14.2. 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.[/FONT]
[FONT=&quot]
Alternative Defence - Failure to set out clearly parking terms
15. 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.[/FONT]
[FONT=&quot]15.1. The Defendant carried out research after having received the PCN from the Claimant about the parking signs.
15.2. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
15.2.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
15.2.2. The signage did not comply with the requirements of the Code of Practice of the International Parking Community’s (IPC) Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
15.2.3. 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
15.3. 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.[/FONT]
[FONT=&quot]15.4. 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.
15.5. 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.
15.6. 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.[/FONT]
[FONT=&quot]
16. 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.[/FONT]

[FONT=&quot]17. 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.[/FONT]

[FONT=&quot]Costs on the claim - disproportionate and disingenuous[/FONT][FONT=&quot]

18. 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.

19. 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.

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.

[/FONT]
[FONT=&quot]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. 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 British Parking Association (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:[/FONT]
[FONT=&quot]''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...''[/FONT][FONT=&quot]

24. 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.''

25. 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.

26. 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.[/FONT]

[FONT=&quot]27. 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. 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. Given that the claim is based on an alleged contractual parking charge of £200 (2 x £100 per PCN) - 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.[/FONT]

[FONT=&quot]29. 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.[/FONT]

[FONT=&quot]30. If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

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

Name

Signature

Date[/FONT]

Le_Kirk

In my opinion that is a good "own space" defence. The normal advice for residential issues is to defend as driver, thereby when it comes to witness statement stage you can write in the first person and from absolute knowledge being the resident & driver & keeper. It may be that on the day of issue of the PCN you didn't drive the car and park it but, as you live there, chances are that you would have parked the car at some point. If the judge asks you outright if you were driving, what would you say? I think you have enough of a good defence without the need to "hide" behind POFA.

1505grandad

As above - may be pedantic but this para:-

"14. 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)."

appears to be negated by this para:-

"6. The Defendant’s vehicle was parked in the allocated bay number [xxx] and the Defendant has done since taking up residency of apartment [xxxxxxxx] on [date]."

alpha0123

Hi Le_Krik,


Thank you for the very quick reponse and your time & effort. much appreciated. :T



So i will wait until tomorrow to see if there are any more comments. If not, i will drop the POFA paragraph (update the following paragraph numbers) and follow KeithP's post on way to submit defence.

alpha0123

[FONT=&quot]1505grandad,


thank you for your comments.
I probably will end up without POFA in my defence as Le_Krik suggested.


para#6 doesn't explicitly say defendant was the driver currently. If i reworded this to, say [/FONT]
[FONT=&quot]"6. The Defendant’s vehicle was parked in the allocated bay number [xxx] and this has been the case since the Defendant taking up residency of apartment [xxxxxxxx] on [date]."[/FONT]
[FONT=&quot]would it remove that ambiguity?[/FONT]

Le_Kirk

alpha0123 wrote: »

Hi Le_Krik, Le_Kirk

Thank you for the very quick reponse and your time & effort. much appreciated. :T
So i will wait until tomorrow to see if there are any more comments. If not, i will drop the POFA paragraph (update the following paragraph numbers) and follow KeithP's post on way to submit defence.

Yes but have a look at what 1505grandad has posted in post # 34.

alpha0123

Le_Kirk wrote: »

In my opinion that is a good "own space" defence. The normal advice for residential issues is to defend as driver, thereby when it comes to witness statement stage you can write in the first person and from absolute knowledge being the resident & driver & keeper. It may be that on the day of issue of the PCN you didn't drive the car and park it but, as you live there, chances are that you would have parked the car at some point. If the judge asks you outright if you were driving, what would you say? I think you have enough of a good defence without the need to "hide" behind POFA.

[FONT=&quot]Le_Kirk,[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The PoC only states [/FONT]"....on land managed and operated by the Claimant, where the Defendant was responsible for a vehicle registration mark XXXXXX, seen breaching the Terms and conditions in operation in a controlled parking zone. ...."
So in the case I have removed POFA, should I also amend para#4 to say Defendant is “the driver and” the registered keeper… explicitly confirming that? Or I can say that in just my WS?

alpha0123

Dear regulars and forum-ers,

The judge dismissed the case as PoC didnt comply with  CPR 16.4(1)(a) but gave time (a month) for the claimant to serve new PoC supported by a statement of truth. To get the claimant to specify if its schedule 4 POFA, contract or no contract - trespass, if contract - consideration, no contract - trespass or tort, if not POFA then cause of action & how and if breach of contract - consideration provided and alleged breach of contract.

So waited the month and thought the claimant didnt do so.... but cheeky fellows sent new PoC (signed by paralegal) and the copy only reached me this week more than a couple of weeks after the filing date.. giving me only a week to file a defence.

anyway i have a couple of queries and shall post them as separate post to easily identify your answers if any. your help and time on this forum is much appreciated.

KeithP

alpha0123 said:

anyway i have a couple of queries and shall post them as separate post to easily identify your answers...

That's fine, but please stick to the same thread.

Coupon-mad

No new threads please, as KeithP says, it is a complete nono.  We cannot handle two.