WY Parking Limited Claim & Defence Response

KeithP

bendyspoon wrote: »

WY Parking Limited is actually the claimant in my instance despite the wrong title in the thread.

bendyspoon, feel free to change the thread title whenever you like.

To do that go in to edit on your opening post.
Then click on Go Advanced.
Type what you want in the title box and save.

The_Slithy_Tove

If it's your work car park which you use every day, you might struggle with point #5. Not saying you shouldn't include it, though.

I presume your place of work has been unhelpful when you approached them?

#7 needs expanding, as The Deep has indicated.

Are they pursuing you as keeper rather than driver? If so, why are you not challenging them on conformance to POFA? Quite likely they have failed, so no keeper liability. (Again, if this is your place of work, they might well be able to infer that the keeper was the driver, but no need for you to help them.)

bendyspoon

The_Slithy_Tove wrote: »

I presume your place of work has been unhelpful when you approached them?

I haven't overly pressed the situation with them, I approached them shortly after the PCN was issued to which there response was "there's not much we can do".

The_Slithy_Tove wrote: »

#7 needs expanding, as The Deep has indicated.

I have expanded on this now, quoting [FONT=&quot]F0DP163T & [/FONT][FONT=&quot]F0DP201T specifically relating to claims been struck out due to Abuse of Process.[/FONT]

The_Slithy_Tove wrote: »

Are they pursuing you as keeper rather than driver? If so, why are you not challenging them on conformance to POFA? Quite likely they have failed, so no keeper liability. (Again, if this is your place of work, they might well be able to infer that the keeper was the driver, but no need for you to help them.)

They have never named me or provided evidence of me being the driver. I know they sent me an NTK but I don't have that anymore as I put it in the bin with the rest of the letters, so I'm unsure as to when they issued the NTK (if it was within 56 days or not).


I did send an SAR to WY Parking LTD on the 11th November (28 days ago today) for which I haven't received anything back yet.

Le_Kirk

bendyspoon wrote: »

I did send an SAR to WY Parking LTD on the 11th November (28 days ago today) for which I haven't received anything back yet.

They have 30 days to reply to a SAR so you should receive something middle of this week. If not, complain to the ICO.

Coupon-mad

Oh wait, are you the lessee/hirer of a lease car?

WY Parking Limited will NOT have complied with the POFA paras 13 & 14, take a look, if this was a company car and the first NTK went to the company.

If not, then WY Parking Limited will NOT have complied with para 8 or 9.

bendyspoon

Coupon-mad wrote: »

Oh wait, are you the lessee/hirer of a lease car?

WY Parking Limited will NOT have complied with the POFA paras 13 & 14, take a look, if this was a company car and the first NTK went to the company.

If not, then WY Parking Limited will NOT have complied with para 8 or 9.

Unfortuantely no, it was my own vehicle, but I seem to recall it being well over 2 months before I received a NTK. I will just await what the SAR comes back with as I guess they will include the NTK as part of that.

bendyspoon

So I have put together a bit more information on my defence as follows:

IN THE COUNTY COURT

CLAIM No: xxxxxx

BETWEEN:

xxxxxx (Claimant)

-and-

xxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012 “POFA 2012” Such a notice was not served within 14 days of the parking event and when the notice was served, did not fully comply with statutory wording. The Claimant is, therefore, unable to hold the defendant liable under the strict ”keeper liability” provisions:

3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). The vehicle has more the one driver and the claimant has not provided any evidence as to who was driving. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. The Protection of Freedoms Act 2012, Schedule 4, at paragraph 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 is an abuse of process.

4.1. This is further supported by many county court Judges striking out cases in recent months without a hearing, due solely to adding 'damages' that the claimant cannot ever justify. This is known to have occurred at Caernarfon, Southampton, Isle of Wight and Warwick courts in recent weeks, all of which are in the public domain and proved with a copy of the Judge's Order summarily striking out the claims, which are tainted by the £60 falsely added by the cartel-style modus operandi of more than one robo claim solicitor. As an example, a copy of a recent Order by District Judge Grand is attached to this defence. (I'm awaiting the Order to be posted on here. If anyone has a link if I've missed it already that would be much appreciated.)

4.2. An application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge in that case (which is on all fours with this one) and a hearing was held on 11th November 2019. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:

(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed, and even if it had been on the signs) was in breach of POFA, due to paras 4(5) and 4(6).

(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed, and even if it had been on the signs) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.

(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

5. The facts are that the vehicle, registration xxxxx, of which the Defendant was the registered keeper on xxxxx, was parked on the material date in a marked bay at xxxxxx, had a valid permit registered to the vehicle xxxxxx and was authorised to be parked in that bay.

6. 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. 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 un-evidenced allegations in the Particulars

7. The terms on the Claimant's ‘contract’ signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily or in a safe manner from a vehicle. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

9. The defendant submit a Subject Access Request under the General Data Protection Regulations (GDPR) to the Claimant via email on 11.11.2019 asking for all data held on the Defendant to be released. At the time of submitting this defence (more than one month after the request) that data has not been received.

10. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4

Statement of Truth:
I believe that the facts stated in this Defence are true.

I wasn't sure wether or not to mention the SAR but the fact that they are now breaking the law by not responding within 1 month I thought it may be worth while, but happy to be advised otherwise.



I'm looking to submit this tomorrow so if anyone has any comments / critiscism that would be much appreciated.

1505grandad

Just checking - was there a Notice to Driver on the vehicle on the date of the parking event?

Umkomaas

Paras 5 and 11 missing.

bendyspoon

1505grandad wrote: »

Just checking - was there a Notice to Driver on the vehicle on the date of the parking event?

There was only the PCN on the vehicle which from what I can see didn't include anything about a Notice to Driver. On the rear it says "if the driver fails to pay this charge within 28 days, the creditor or their agent may request additional details from the DVLA of the keeper of the vehicle issued with a PCN.