Claim Submission Form Received - Acknowledgement filed...now to prepare the defence

Le_Kirk

gbbe wrote: »

Brilliant thank you Keith P and Coupon-mad! This is such great info! I will search the threads here too for defence templates and will post here prior to submission.

Templates are in the NEWBIE sticky post # 2; there are links to 17 pre-written defences so read; choose one, adapt it to suit your circumstances and add the extras as indicated by others.

The_Deep

UTCCC 1999 are out of date, read CRA 2015.

[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT][/FONT]

gbbe

this is proving rather stressful, please see complete defence, all thoughts welcome.

IN THE COUNTY COURT
CLAIM No: to be added!
BETWEEN:
EXCEL PARKING SERVICES LTD (Claimant)

-and-

to be added! (Defendant)
________________________________________

DEFENCE STATEMENT

________________________________________

1. The Defendant disputes the full amount of XXXX as shown on the Claim Form.

1.1. The Defendant was the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at retail park, location, date.
1.2. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

1.3. The signs were insufficient in terms of their distribution and wording hence incapable of binding the driver, which distinguishes this case from the Parking Eye vs Beavis.
a) Sporadic and illegible, no mention of charge on entering the carpark or any ‘reasonable adjustments’ afforded to blue badge holders on any signs within the carpark – a breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
c) The signage does not state the clear terms and conditions; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999. The defendant also refers to Excel Parking Services v Cutts 2011.

d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.

e) Absent the elements of a contract, there can be no breach of contract.

2. The Claimant is put to strict proof of any breach and of their decision-making in deciding to issue a PCN and why, as well as the reasoning behind trying to collect an unconscionable £160 five years later, rather than the few pounds tariff, if it is their case that this sum went unpaid and despite knowing that the Defendant was not the driver of the vehicle As stated in appeal letter dated 9/11/2015.

3. No evidence has been supplied by the Claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to name the driver at this stage as XXXXX formerly of XXXXX now deceased.

3.1. The driver in question was a sufferer of Cardiovascular Disease which manifested itself in a number of ways, including angina, for this reason the driver was a blue disabled badge holder.

3.1.1. The Claimant has a legal duty to allow more time than the arbitrary time limit to its disabled patrons. I believe the Claimant has committed indirect discrimination as per the Equality Act 2010, by failing to make ‘reasonable adjustments’ such as extending ‘fixed time limit’ policies for disabled badge holders, failing to put a system in place to prevent such individuals being subject to a PNC and failing to communicate ways for blue badge holders to avoid a PNC so that such people have the ability to claim more shopping time.

As the Defendant is not the driver of the vehicle, they cannot be legally liable.

4. Under the Protection of Freedoms Act 2012, Schedule 4 (POFA), a registered keeper can only be held liable for the sum in any compliant 'Notice to Keeper'. This depends upon the Claimant fully complying with the statute, including 'adequate notice to keeper' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and, ‘any non-compliance voids any right to ‘keeper liability’’.

4.1. The Claimant did not comply with the documents served in time to the registered keeper. The Notice to Keeper was issued 18 days after the alleged breach of contract and then didn’t arrive for roughly 3 weeks.

4.2. There was also no reference made to POFA 2012, nor was there any discount offered which as POFA 2012 Schedule 4 states should be at least 40% if paid within 14 days so as Registered Keeper, the Defendant is not liable.

The parking company can therefore only pursue the driver.

5. It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. The Claimant is put to strict proof that it had sufficient proprietary interest in the land, or that it had the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation in its own name on the material date. The Claimant appears to be a contractor on an agent/principal basis operating under a bare licence to erect signs and collect monies from the machines, and no doubt, to issue PCNs - but 'on behalf of' the landowner, which would give them no authority or standing. Proof was requested in the Defendants appeal letter dated 9/11/2015 and to this date no proof has been provided.

5.1. If this is produced, it is submitted that the alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all under this tort, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none).

5.2. Even if the Claimant was authorised to issue PCNs in their own right, it is denied that they could do so unfairly without allowing ‘reasonable adjustments’, and denied that the landowner contract would give this Claimant the express legal standing to form contracts and litigate in their own name.

No 'legitimate interest' or commercial justification - Beavis is distinguished

6. In the pre court stage the Claimant refused to provide the Defendant with the necessary information requested in order to defend the claim against the alleged debt. 
The information sent missed the following information

a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which the Claimant intends to rely, namely a copy of their authority to bring this claim to court from the landowner
c) How the “charge amount” of 160 pounds has been calculated.

7. The Claimant is known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action.  

7.1. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair particularly to someone who is unrepresented. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

8. An appeal was submitted upon receipt of the PCN by the Defendant on 2/11/2015 and the Claimant was given 28 days to reply, no reply was received.

8.1 Additional points made by the Defendant were the belief the ANPR used by the Claimant was flawed as the PCN states the vehicle in question left the carpark at XX:YY and the driver has also provided a receipt proving they were still paying for their shopping in XXXX Ltd at the exact time XX:YY.

8.1.2. The Defendant also provided a receipt from the driver showing they paid for their shopping in CCCC Ltd on the XXX Retail Park at 55:55. This leaves a 10-minute window between paying on the XXX Retail Park and allegedly entering YYY Retail Park. The journey is 1.9miles which would take 10 minutes with absolutely no traffic, if you have ever driven through AAA in rush hour on a weekday you will know that there is a vast amount of traffic, even the queue to leave the XXX Retail Park takes at least 7 minutes to navigate. Meaning there was no way anyone could have paid in CCC Ltd, carried the shopping to the car, left the XXX Retail Park and then entered YYY Retail Park all within 10 minutes, further supporting the Defendants claim that the ANPR is flawed. There is also no signage to state ANPR cameras are being used.

9. The alleged debt in the claim is an unenforceable penalty, being the sort of charges exposed as offending against the penalty rule, in ParkingEye Ltd v Beavis.

10. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. 
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation. 

11. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60, which the Defendant submits have not actually been incurred by the Claimant.

11.1. These have been described as a 'DCBL administration and recover fee' (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended). Suddenly in the Letter Before Claim there is also a second add-on, artificially hiking the sum to £236.20. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

11.1.2. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

12. The Defendant denies the claim in its entirety voiding any liability to the Claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time/costs in dealing with this matter.

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 and for this reason the Defendant requests the court strike out claim xxxxxxxxx

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

Name

Signature

Date

KeithP

On 24th January I wrote:

KeithP said:

...you have until 4pm on Monday 17th February 2020 to file your Defence....

...please don't leave it to the last minute.

On 24th January you wrote:

gbbe said:

Brilliant thank you Keith P and Coupon-mad! This is such great info! I will search the threads here too for defence templates and will post here prior to submission.

I plan on doing it this weekend well ahead of the deadline.

...and here we are, over three weeks later, with just one day to go.

Good luck.

gbbe

KeithP said:

On 24th January I wrote:
...and here we are, over three weeks later, with just one day to go.

Good luck.

 Not helpful. I don't do this everyday it's taken me many weekends of reading and researching to write this. 

Le_Kirk

The defence should be written in the third person and you have slipped in an "I" at paragraph 3.
The use of Ladak in a defence indicates that you have found an older example.  Try searching for the Abuse of Process thread (discussion) by beamerguy and use the comment at the 14th post on that thread.  Alternatively search for recent threads by basher52 and jellybelly23 where Coupon-mad has written defences for each of those posters.

1505grandad

Para 1.3a  -  " a breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum."

Excel are IPC AOS members not BPA

"............ Unfair Terms in Consumer Contracts Regulations 1999."  You are still quoting the wrong Act.

gbbe

1505grandad said:

Para 1.3a  -  " a breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum."

Excel are IPC AOS members not BPA

"............ Unfair Terms in Consumer Contracts Regulations 1999."  You are still quoting the wrong Act.

thanks which act should I be quoting? 

1505grandad

As posted above by The_Deep:-

"UTCCC 1999 are out of date, read CRA 2015."

gbbe

updated defence, can someone please check it makes sense and i am not repeating myself/legislation used is valid:

- i also didnt know if i should state who the driver was at the begining or just leave it in the middle where it is?

- also do i leave the bits in bold in? the headings?

IN THE COUNTY COURT
CLAIM No: (removed)
BETWEEN:
EXCEL PARKING SERVICES LTD (Claimant)
-and-
(removed) (Defendant)
________________________________________
DEFENCE STATEMENT

________________________________________

Background
1. The Defendant disputes the full amount of £XXX.00 as shown on the Claim Form.

1.1. The Defendant was the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at XX Retail Park, XX on XXXXX.
1.2. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')' for the lawful conduct described below.

2. The allegation appears to be that the ‘motorist fails to make the appropriate tariff payment’ based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper ‘not purchasing the appropriate parking time’ or of the driver not being a patron of the XX Retail Park.

Data Protection Concerns

3. The driver was the occupant of the car and it can be proved that they were a patron of the XX Retail Park. However, neither they nor the Defendant had any idea there was ANPR surveillance and received no letters after the initial ‘PCN’ a vague document which gave no indication as to what the alleged breach actually was. No photographic evidence of the terms on signage has been supplied, not even in the postal PCN.

3.1. The Claimant is put to strict proof of any breach and of their decision-making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 five years later, instead of the few pounds tariff, if it is their case that this sum went unpaid and despite knowing that the Defendant was not the driver of the vehicle as stated in appeal letter dated XXXX.

4. Under the GDPR, the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a car park where there would likely be no cars unconnected to patrons, no trespass nor ‘unauthorised’ parking events.

4.1. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors to the Retail Park, who are being caught out regularly by this trap.

4.2. Silently collecting VRN data in order to inflate the ‘parking charge’ from a few pounds to £100 and write (18 days later) to registered keepers at their own homes – whether they were driving or not – is excessive, untimely and intrusive to registered keeper data subjects.

Denial of contract and denial of any breach, or liability

5. It is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.
6. 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.

7. The signs were insufficient in terms of their distribution and wording. These are not the 'brief, simple and prominently proclaimed' terms that convinced the Supreme Court in ParkingEye Ltd v Beavis [2015] UKSC 67 to bend the penalty rule in that unique, fact-specific case only.
a) Sporadic and illegible, no mention of charge on entering the car park or any ‘reasonable adjustments’ afforded to blue badge holders on any signs within the car park – a breach of the IPC Code of Practice and no contract formed to pay any clearly stated sum.
c) The signage does not state the clear terms and conditions; the terms and conditions say ‘you must display a valid ticket’ yet also say ‘the first half an hour is free and no need for a ticket’ this is ambiguous and an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Rights Act 2015. The Defendant also refers to Excel Parking Services v Cutts 2011.

d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.

e) Absent the elements of a contract, there can be no breach of contract.

7.1. These concealed restrictions are misleading and excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed prohibitions in the Consumer Protection from Unfair Trading Regulations 2008.

8. Unlike the free car park in Beavis, this Retail Park is a site where the Claimant has machines to take payment of tariffs. Clearly there will be EXCEL PARKING SERVICES LTD staff regularly onsite to empty the money from the machines, who could reasonably enforce parking rules with drivers face to face, whilst managing the car park fairly and ensuring that any PDT machine is clear and obvious to drivers and not a hidden ‘pitfall or trap’. The ANPR cameras represent disproportionate and excessive data protection processing, given the nature of this location, and the Claimant’s DPO is put to strict proof of its data risk assessment and compliance with the Information Commissioners Office’s ANPR surveillance camera Code of Practice.

9. It is not remembered whether the driver of the car did see a PDT machine and pay a tariff/input the VRN, and the Defendant is none the wiser due to the lack of information from the Claimant. The PCN and POC could mean that the Claimant is suggesting the car overstayed paid for time, or even that a wrong VRN was recorded by the PDT keypad, and it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.

Premature claim and sparse Particulars

10. No evidence has been supplied by the Claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. The Defendant chooses to name the driver at this stage as XXXX, formerly of XXXXXX, now deceased.

10.1. The driver in question was a sufferer of Cardiovascular Disease which manifested itself in a number of ways, including angina, for this reason the driver was a blue disabled badge holder.

10.1.1. The Claimant has a legal duty to allow more time than the arbitrary time limit to its disabled patrons. The Defendant believes the Claimant has committed indirect discrimination as per the Equality Act 2010, by failing to make ‘reasonable adjustments’ such as extending ‘fixed time limit’ policies for disabled badge holders, failing to put a system in place to prevent such individuals being subject to a PNC and failing to communicate ways for blue badge holders to avoid a PNC so that such people have the ability to claim more shopping time.

As the Defendant is not the driver of the vehicle, they cannot be legally liable.

11. Under the Protection of Freedoms Act 2012, Schedule 4 (POFA), a registered keeper can only be held liable for the sum in any compliant 'Notice to Keeper'. This depends upon the Claimant fully complying with the statute, including 'adequate notice to keeper' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and, ‘any non-compliance voids any right to ‘keeper liability’’.

11.1. The Claimant did not comply with the documents served in time to the registered keeper. The Notice to Keeper was issued 18 days after the alleged breach of contract and then didn’t arrive for roughly 3 weeks.

11.2. There was also no reference made to POFA 2012, nor was there any discount offered which as POFA 2012 Schedule 4 states should be at least 40% if paid within 14 days so as Registered Keeper, the Defendant is not liable.

The parking company can therefore only pursue the driver.

12. Due to the sparse details on the 'PCN' as well as the equally lacking Letter before Claim, (taken to be a scam piece of junk mail, since it did not come from any Authority or the Police and it arrived nearly 5 years after the PCN) and the sparse details on the Particulars of Claim (POC), this Claimant afforded the Defendant no opportunity to take stock, obtain data, copy letters, and images of the contract on signage. There has been no chance to even understand the allegation, let alone discuss or dispute it prior to court action, as should have been the case under the October 2017 pre-action protocol for debt claims.

12.1. The Defendant avers that the claim was premature, the Claimant refused to provide the Defendant with the necessary information requested on XXXX in order to defend the claim against the alleged debt. 
The information sent missed the following information:

a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which the Claimant intends to rely, namely a copy of their authority to bring this claim to court from the landowner
c) How the “charge amount” of 160 pounds has been calculated.

13. The Defendant requires a copy of the contract (the signage terms on the material date) and a full and detailed explanation of the cause of action and on what basis they purport to hold the Defendant liable. The POC alleges that the Defendant was 'the registered keeper and/or the driver' of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

14. The Claimant is known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action.  

14.1. The Defendant believes the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair particularly to someone who is unrepresented. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to the Defendant’s significant detriment as an unrepresented individual.

15. An appeal was submitted upon receipt of the PCN by the Defendant on XXXX and the Claimant was given 28 days to reply, no reply was received.

15.1 Additional points made by the Defendant were the belief the ANPR used by the Claimant was flawed as the PCN states the vehicle in question left the carpark at XX:YY and the driver has also provided a receipt proving they were still paying for their shopping in XXXX Ltd at the exact time XX:YY.

15.1.2. The Defendant also provided a receipt from the driver showing they paid for their shopping in CCCC Ltd on the XXX Retail Park at 55:55. This leaves a 10-minute window between paying on the XXX Retail Park and allegedly entering YYY Retail Park. The journey is 1.9miles which would take 10 minutes with absolutely no traffic, if you have ever driven through AAA in rush hour on a weekday you will know that there is a vast amount of traffic, even the queue to leave the XXX Retail Park takes at least 7 minutes to navigate. Meaning there was no way anyone could have paid in CCC Ltd, carried the shopping to the car, left the XXX Retail Park and then entered YYY Retail Park all within 10 minutes, further supporting the Defendants claim that the ANPR is flawed. There is also no signage to state ANPR cameras are being used.

No standing or authority to form contracts and/or litigate

16. It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. The Claimant is put to strict proof that it had sufficient proprietary interest in the land, or that it had the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation in its own name on the material date. The Claimant appears to be a contractor on an agent/principal basis operating under a bare licence to erect signs and collect monies from the machines, and no doubt, to issue PCNs - but 'on behalf of' the landowner, which would give them no authority or standing. Proof was requested in the Defendants appeal letter dated XXX and to this date no proof has been provided.
16.1. If this is produced, it is submitted that the alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all under this tort, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none).

16.2. Even if the Claimant was authorised to issue PCNs in their own right, it is denied that they could do so unfairly without allowing ‘reasonable adjustments’, and denied that the landowner contract would give this Claimant the express legal standing to form contracts and litigate in their own name.
No 'legitimate interest' or commercial justification - Beavis is distinguished
17. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. 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. The PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent very late with a 'parking charge' that bears no resemblance to the few pounds 'parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.
17.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case.