New battle

Fruitcake

Allygood100 wrote: »

Probelm i have is if i mention the mistake made by trace without mentioning tge relation to tge defendant that in court it may be seen as misleading?

I don't see why it is misleading. It's a statement of fact.
The NTK was not given to the keeper in accordance with the PoFA 2012 but was instead given to someone else with a similar name but at a completely different address where the vehicle has never been registered.

There should be two complaints to the DVLA, one from each party; and two complaints to the ICO, one from each party.
If a judge asks who the other person is, or if you known them then say so.
The fact still remains that the data was sent to the wrong person therefore a data breach has occurred.
Nobody is allowed allowed to exchange information about your husband/wife/daughter/son/parents/grandparents cousin or the woman/bloke down the pub without their permission.

Allygood100

Hello guys hope that everyone had a lovely Christmas.
This my latest go at this sorry about posting at this sort of time am an awol.

DEFENCE
________________________________________

1. I the defendant in this matter was the authorised registered keeper of the vehicle in question at the time of the alleged incident. The defendant deny liability for the entirety of this claim for the following reasons:

2. The Particulars of Claim are sparse and provide no information regarding the alleged contract, or breach, or what the terms on signage actually said on the material date, or what the alleged breach was, or why/how the Claimant purports that the registered keeper is liable, given the facts that this Claimant has failed to evidence the identity of the driver and they do not conform to the keeper liability provisions in the Protection of Freedoms Act 2012 (the 'POFA').


2.1. Furthermore, it is unclear as to what the legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. It is submitted the claimant has failed on all counts.


2.2. However, it is denied that the vehicle was - by any reasonable interpretation - unauthorised, or that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

3. The alleged ticket was issued in 20 March 2019 but wasn’t received, instead the defendant only became aware of the issue after a relative who shares the same family name received correspondences to his home address from debt collectors, the defendant and or the vehicle in question was never registered to him or his address so was ignored. This failed the strict requirement of the PoFA 2012 with regards to timescales. Clear abuse of process.



3.1 After more harassing correspondence from the claimant and or their agents the defendant got in touch and naively gave the parking company his info hoping that they’ll realise their mistake and fix the issue. The defendant contacted the DVLA which confirmed the data held concerning the vehicle and its keeper was correct at the time of alleged parking trespassing which proves that the claimant dept recovery agent made a mistake in sending and sharing the defendant data with a third party not involved in this matter. And that’s clear General Breach of Data Protection act 2018.

4. The Claimant is not the land-owner and has no capacity to bring the claim unless its contract grants it. In the absence of written authority from the land-holder in accordance with the IPC Code of Practice Para 23.1, “If an Operator is issuing Parking Charges on land which is not owned by them, they must have written permission from the Landowner to operate on the Private Land.”.

If the display of signs was sufficient, the IPC would have had no need to include this condition in its Code of Practice.

5. The POFA states that the maximum sum that may be potentially recovered from the keeper (subject to full compliance by the parking operator, which is not the case) is the charge stated on the Notice to Keeper, in this case £100. This claim attempts more than triple recovery by adding purported but unsupported damages, admin, debt collector or other costs, which the Defendant submits have not actually been incurred at all. The Defendant avers that this inflation of the considered amount to some £243.11 is a gross abuse of process.



The POFA 2012 and Accredited Trade Association (ATA) Code of Practice are against this Claim
5.1. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) 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' ('NTK'). Further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is no more than £100, and in this case the parking charge in the small print on the signs, and in each NTK, was stated to be £80 and this must have been set to include the costs of recovering the charge, or it falls foul of the Beavis case.

The Consumer Rights Act (CRA) 2015 is against this claim
5.2. Further, this is a clear abuse of process the purported added 'costs' are disproportionate, vague and in breach of the CRA Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 75% to the parking charge, in a double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is astounding to this Defendant that this has been allowed to continue unabated for so many years. Even if most courts are routinely disallowing the added £60 'costs' of all parking charge cases now (and it is clear from online reports that almost all courts are disallowing that sum) this is not enough.


6. The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated, and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. In the statement of fact, the Claimant own staff issued the claim and the Legal Representative fee is false.

7. This case can be distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the IPC Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

8. The Claimant's signage with the largest font at this site states 'PERMIT HOLDERS ONLY'. It is submitted that if this notice is attempting to make a contractual offer, then as it is forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case neither the Claimant, nor their principal the landowner, is offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.


8.1. The above point was tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that: "If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels' first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass."


8.2. Furthermore, the defendant denies that the sign makes it clear that the driver of the vehicle is entering into a contract. The signs used were not dissimilar to those in the case Pace v Lengyel. Where District Judge Lyer dismissed the claim noting that:
“Nowhere on this sign does it inform the reader that by parking in this car park, he is entering into a contract with the Claimant. Indeed the words “contract” or “agreement” do not appear at all within the sign it merely refers to the driver “accepting liability for a charge”. The phrase “Terms and conditions” are not synonymous with a contract. Further, the opening words of the sign appear to be designed more to ward off trespassers than to enter into a contract with the driver.”


8.3. There were inadequate signs incapable of binding the driver into the contract - this distinguishes this case from the Beavis case. Furthermore The terms on the Claimant’s 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, particularly given the low lighting conditions and lack of lighting of the signs, which looked like the sort of normal signs about bins that a members of the public would not be expected to give a second glance to, as they went about their business.


9. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

10. The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

11. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.



12. 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, harassing and indeed untrue in terms of the added costs alleged and the statements made.

13. In summary, it is the Defendant's position that the claim discloses 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.






I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Fruitcake

I have only skim read, but I would change 1 to,

1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

and change 3 to,

3. The alleged Parking Charge Notice (PCN) was allegedly issued in 20 March 2019 but was never received by the keeper. The defendant only became aware of the issue after a relative who shares the same family name received correspondences to his home address from debt collectors. The defendant never lived at, and the vehicle was never registered at the relative's address. The claimant therefore failed the strict requirement of the PoFA 2012 with regards to timescales because the Notice to Keeper (NTK) was never given in accordance with Schedule 4 of the Act.

Quote the relevant paragraphs/sub paragraphs of Schedule 4 which will be 8 or 9.

Typos and corrections needed here.

3.1 After receiving more harassing correspondence from the claimant and or their agents the defendant got in touch and naively gave the parking company his info hoping that they’ll realise their mistake and fix the issue. The defendant contacted the DVLA which confirmed the data held concerning the vehicle and its keeper was correct at the time of alleged parking trespassing which proves that the claimant [STRIKE]dept[/STRIKE] debt recovery agent made a mistake in sending and sharing the defendant data with a third party not involved in this matter[STRIKE]. And that’s [/STRIKE] which is a clear breach of the General Data Protection Regulations (GDPR) 2018 and the claimant's Keeper At Date Of Event (KADOE) contract with the Driver and Vehicle Licence Agency (DVLA).

I would get rid of this as it is irrelevant and incorrect. There must be a written contract, and there must be clear unambiguous signage.

4. ...

[STRIKE]If the display of signs was sufficient, the IPC would have had no need to include this condition in its Code of Practice.[/STRIKE]

That's as far as I got but there are spelling and grammatical errors that need rectifying as well. You also need to write out full names followed by the acronym/abbreviation in brackets before the first time you use them, then just the acronym/abbreviation thereafter.

Check with the council planning department to see if the scammers have planning permission for scameras and advertising consent for signs. Not having the latter is a criminal offence.

Coupon-mad

How are you getting on?  Did you put in a defence in time, and are you now preparing your WS & evidence?

Allygood100

Hello yes defence was filed in time gonna use the extra unsolicited time we've been given to prepare a ws.
Thank you for check in on me.

Allygood100

Hello everyone I hope you all are well.
Just recieved mail today from court about a telephone hearing for this case. Not to confidant about the phone hearing because i think it will give an advantage to the claimant and to be honest was hopping that the claimant rep won't turn up to court if it was a physical hearing .
What you guys think and whats the best way to object to a phone hearing.
Your advice is much appreciated. 

nosferatu1001

There's a thread all about telephone hearings. You must read it. 

Fruitcake

How did you get on with the complaints to the DVLA and ICO?

Allygood100

Fruitcake said:

How did you get on with the complaints to the DVLA and ICO?

Ring the dvla to complain they feed some bs and they they past the info to 3rd part according to the rules bla bla. I wrote to them again with what happened haven't heard back.

twhitehousescat

whats getting me , did the dvla get it wrong or did the parking Co guess the owners name/address , in which case they are in big trouble