County Court Judgement Received

KeithP

Blue1133 said:

ok - just realised claim form is I believe the original, dated last  year

Then of course that is why the MCOL password doesn't work.

I have not read back over the complete thread, but surely if a set aside has taken place you will be sending your Defence to the hearing court, not to the CCBC.

nosferatu1001

Yeah
OP you need to help us out here - there are literally dozens of threads a day
This is a set aside so you follow the ORDER from the court, and file your defence AS PER THE ORDER. The standard newbeis thread timeline will not help you here

Is the clue that it was june 2019 by any chance? 

Blue1133

I assume so, i'm just going to have to take a chance and send to hearing court, it is titled CCBC and last year, password is not an actual password it is X'd out. Phones CCBC, held on for 45m and when they couldn't find out what was going on hung up the phone rather than find out. Oh well, onwards and upwards, I already have a defence just need to polish it up.

nosferatu1001

It isnt a chance, your court order will tell you! If itis FROM your hearing court and it instructs you to file a defence, that means you file it with them. 
Pretty clearly if the date is last year it cant be anything to do with the CCBC by now. Theyre not a court. They are a processing centre. They nahdle sending out claims and allocating to a court. past that they have no part to play. 

Blue1133

Quick Question re the abuse of process - In my instance, the POC states:
£80 for PCN, £70 Contractual Costs, plus interest £23.13 = £173.13
Then the final section states:
Amount Claimed - £173.13
Court Fee - £25
Legal Rep Costs - £50
Total £248.13
- Can I still use the Abuse argument in this case, which one is the global sum?

DoaM

All they're entitled to is:

PCN £70
Filing fee £25
Hearing fee £25
Legal rep costs £50
Interest (a small amount - nowhere near the amount they're claiming)

YES you can use Abuse.

nosferatu1001

Obviously the £70 is the abuse amount. 

Blue1133

In the template, it uses £160, which amount should I be using as the so called 'global sum'?

nosferatu1001

£150. Pcn plus unlawful charges. 

The template amount is based on £100 + 60. 

Blue1133

I have added initial draft below, please note that I have completed the draft tmplate for the Abuse of process, but not added that just yet, as it is practically the same as the template so in the interests of duplicating things is not added here.

Pre-action protocol breach and nonsensical Particulars of Claim

1.       In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, no Letter Before Claim was ever received, information gathered by the Defendant notes there to be an omission of evidence of any breach and fails to append the wording of the sign or consumer notice.  Further, the stylised Particulars of Claim are embarrassing and incoherent, lacking specificity re the status of the contracting parties and failing to detail any contract, conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the claim and even the exaggerated quantum has fluctuated, changing with each debt demand and/or letter of claim over the preceding months.

The facts - lack of prominently displayed contract and no agreement on the charge

2.       Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, it is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct.  Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms.  Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

3.       The Defendant was not the only driver with access to the vehicle named XXXX, and the Particulars of Claim offer little to shed light on the alleged breach, which relates to an unremarkable date some time ago.  It is not established thus far, whether there was a single parking event, or whether the vehicle was caught by predatory ticketing and/or by using unsynchronised timings and camera evidence to suggest a contravention.  A compliant Notice to Keeper (‘NTK’) was not properly served in strict accordance with section 8 or 9 (as the case may be) of the POFA.

4.       The Defendant at the material time was a resident within the xxxx development, with express permission to park up to two vehicles. At around the time of the alleged parking charge, there were maintenance works being carried out to the parking bays, this severely limited parking options in an exclusively residential development. Bays were to be repainted and altered by xxxx Management and was scheduled to take place over a xxxx week period with works over-running on occasion due to bad weather or other unspecified reasons. At the time of the parking charge, bays were indeed out of use as described, garage areas were also unavailable with residents and visitors in the vicinity of works being left with no choice but to park in alternative locations at express permission of xxxx in order to avoid severe interruption to their home life. The Claimant at this time began unreasonably targeting vehicles in a predatory manner. It is clearly stated by xxxx Management that anybody visiting private properties can park in a ‘V’ bay, with no mention of charges or permits needed, and evidence is attached to this effect.

5.       It is denied that the Defendant or lawful users of said 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 xxxx to be parked by the current occupier and leaseholder of xxxx, whose tenancy agreement permitted the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the tenancy and lease, which cannot be fettered by any alleged parking terms. The agreement provided the right to park a vehicle in the relevant allocated bay, without limitation, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit, the only exception being commercial vehicles and un-roadworthy vehicles. A witness statement will be provided as evidence that prior permission to park had been given.

 

6.       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.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was agreed by the driver.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

8.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being struck out as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  Their decision was specific to that ‘unique’ set of facts: the legitimate interest argued, the car park location, and the ‘brief and clear’ signs with the parking charge itself in bold and the largest text.  The unintended consequence is that, rather than persuade courts considering other cases that all private PCNs are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and prominent signs) set a high bar that this Claimant has failed to reach.

9.       Due to the authority set by their earlier Somerfield case - mentioned at the start of this defence - it is worth noting that ParkingEye no longer add ‘debt letter costs/damages’ to their private PCNs and their own claims have escaped any reports of being summarily struck out for abuse of process.  This Claimant has failed to plead their case or to set out their terms or construct their charges in the same way as in Beavis and the penalty rule remains firmly engaged. 

10.   Without the Beavis case to prop it up, and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum.

11.   Further, in its conduct and signage, this Claimant has failed to comply with the CoP that they are signed up for, such as it is.  Under the Consumer Protection from Unfair Trading Regulations, it is an unfair/misleading business practice to state that a Trader complies with a Code of Practice, but in reality, does not.  This Claimant’s conduct is also significantly different from the Beavis case [para 111.] where even the Supreme Court were wrongly convinced that the CoP was some sort of regulatory framework:  

“And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA.  In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.’’

12.   A more relevant list of binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 and

(ii) Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading examples of the ‘red hand’ rule, that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In other cases where parking firm Claimants and/or their legal teams have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the decision.  In fact, Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

13.   The Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence of a chain of authority flowing from the Landowner or Lessor of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this particular Claimant (Companies House lists their company number as 07748407 HORIZON PARKING LIMITED) to issue private PCNs or what the land enforcement boundary and start/expiry dates are/were, and whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to issue PCNs ‘on behalf of’ the landowner on an agency basis.  

In the matter of costs; if this claim is not struck out, the Defendant seeks:

14.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and (b) that any hearing is not vacated but continues as a costs hearing, in the event of a typical Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases, by this Claimant.  Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that LiP costs are not necessarily capped at £19 ph.  It is noted that a Defendant may ask in their Summary Costs Assessment for the court to award their usual hourly rate for the many hours spent on this case [ref: Spencer & anor v Paul Jones Financial Services Ltd].

15.   In summary, the Claimant's Particulars disclose no legal basis for the sum claimed and the abuse of process taints this Claim.  The Claimant knew, or should have known, that an exaggerated claim where the alleged ‘debt’ exceeds £100 (ATA Code of Practice ceiling for a private PCN) is disallowed under the CPRs, the Beavis case, the POFA and the CRA.  The Defendant invites the court to find that this exaggerated claim is entirely without merit, and to bring an end to the case without a hearing.

Statement of Truth

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.