County Court Papers / Smart Parking

Le_Kirk

You have missed a bit about signage between your paragraphs 2 & 3.  It makes no sense to say "also" when you haven't referred to something before.  Check out the defence you copied from.  Also you cannot say "I'd" in a defence; it is always "the Defendant".  There is much more to be gained from reading the Abuse of Process thread by beamerguy to give ammunition to your argument in paragraph 5 inwards.  Your paragraph 6 is misplaced; you cannot do a summary and then continue with your defence.  Paragraph 6 needs to be last.

Beechy74

Le_Kirk said:

You have missed a bit about signage between your paragraphs 2 & 3.  It makes no sense to say "also" when you haven't referred to something before.  Check out the defence you copied from.  Also you cannot say "I'd" in a defence; it is always "the Defendant".  There is much more to be gained from reading the Abuse of Process thread by beamerguy to give ammunition to your argument in paragraph 5 inwards.  Your paragraph 6 is misplaced; you cannot do a summary and then continue with your defence.  Paragraph 6 needs to be last.

Thankyou Le_Kirk. I was a bit slapdash deleting things as it was too long for the forum. I'll have another crack. 

Beechy74

Another rough attempt. Ive had to post some in a seperate post as it was too long and wasnt sure what to remove.

Thankyou

In the County Court

Claim Number:

Between

Smart Parking (Claimant)

And

xxxx (Defendant)

DEFENCE

I am XXXXX, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper and Driver of the vehicle in question at the time of the alleged incident. The Defendant denies liability for the entirety of the claim for the following reasons ;-

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

2. The facts are that the vehicle, which is a Private Hire vehicle, registration XXXX, of which the Defendant is the registered keeper and driver, was parked on the material date in a parking space within the Hotel grounds, waiting for the passengers who were on a company meeting. The Defendant is a Private Hire driver  and was working. The Defendant followed the instruction and handed in the registration number of the vehicle to reception, which enables the Defendant to wait for as long as required, free of charge, as per Hotel terms and conditions. The Hotel take responsibility of imputting the registration number into the system, NOT the driver.

3. 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 entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

4. 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

5. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

6. 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. 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. This is a further Abuse of Process and an attempt at double recovery. The Civil Procedure Rules Part 27, under Rule 27.14, does not allow such claim for legal fees within the Small Claims Court.

7. 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, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims.

8. The Protection of Freedoms Act 2012, Schedule 4, at Section 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 £85 + other add-ons, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

9. The Claimant's increasingly demanding letters failed to evidence any contravention or clear/prominent signage.

10. The Particulars of Claim are incompetent in disclosing no cause of action.

11. The Claimant has not complied with the Practice Direction - Pre-Action Conduct and Protocols.

12. I'd refer the court to Para 4 on proportionality, and point out that there can be no reasonable excuse for the Claimant's failure to follow the Pre-action Conduct process, especially bearing in mind that the Claim was issued by the Claimant’s own legal team who clearly must be aware of the correct procedure before issuing proceedings.

13. The driver did not enter into any 'agreement on the charge', no consideration flowed
between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

14. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was 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.

15. The Defendant has the reasonable belief that the Claimant has not incurred an additional £xxxx in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 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.

Beechy74

16. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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. 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.

{a}. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

{b}. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

{c}. 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...''

{d}. 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.'' and 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.''

The POFA 2012 and the ATA Code of Practice are against this Claim

17. 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.

Statement of Truth:

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

Name

Signature

Date

Le_Kirk

You need something like this before your paragraph 4. Adjust it to suit your circumstances

3. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom. 

Beechy74

Little update on this. Gladstones have send a Directions Questionaire and theyve filled in their part. I believe i ignire this and wait for the Court to send a DQ?
Also, a SAR was requested on 4/2/20 and still no response. Do i chase this up, or is that something that goes against them for not sending what was requested?
Thankyou

nosferatu1001

No need to "believe". 
newbies thread
Personally i would simply download form N180 and send it to court and claimant. No need to wait. 
No, they have 30 days. It doesnt "go against them" in this claim - how could it?  A SAR is unrelated to this claim. You complain to the ICO and potentially you sue them for daamges. 

KeithP

Doesn't the second list in my 21 January at 7:42PM post go some way towards addressing this?

Beechy74

KeithP said:

Doesn't the second list in my 21 January at 7:42PM post go some way towards addressing this?

Hi KeithP, thanks, ive downloaded the questionaire but the link to bargepoles post 'what happens when' post doesnt work but found it via the search tool.
Questionaire filled in. I have a few daft sounding questions ;- Is it best to print off and sign by hand, then rescan and send? Or is just typing the defendants name in the signature box ok?  
Do i also send the questionaire to Smart Parking or Gladstones?
Thanks again,

KeithP

Hi KeithP, thanks, ive downloaded the questionaire but the link to bargepoles post 'what happens when' post doesnt work but found it via the search tool.

Yes, sorry that link doesn't work. It's the new forum software that's messed it up.

Questionaire filled in. I have a few daft sounding questions ;- Is it best to print off and sign by hand, then rescan and send? Or is just typing the defendants name in the signature box ok? 

It is neater to fill in the form online, except for the signature, then print it and sign it.

Send it to the CCBC in the same manner and to the same email address that you sent your Defence.

Do i also send the questionaire to Smart Parking or Gladstones?

To the address in the Address for sending documents and payments box on your Claim Form.