New One! County Court Claim for PCN.

Coupon-mad

I have yet to see one that relates to alternative non marked areas of land part of a residential block of flats, 

Really?  Cases like yours are very commonly seen here.
This UKCPM one from last night is about residential 'common land' with no key fob or bay markings:
https://forums.moneysavingexpert.com/discussion/6097447/uk-car-park-pcn-help-needed/p1
All you need to do is tweak that start so it talks about a visitor rather than a resident, then add my #5 onwards but also go through it and remove anything that makes no sense for your case (most of it is very relevant and it's long because the aim is to make your Judge strike cases out like the named 4 court circuits are). 

Attach the Warwick Order to the email as well as your defence, to show the Judge a draft of what they 'should' be ordering!

Bachelorplace

Coupon... that isnt two lunches I owe you now is it?

Bachelorplace

Copy of Refusal to Restrict Data from acting solicitor.

Bachelorplace

Too short?

In The County Court Business Centre Claim No: XXXX

BETWEEN UXXXXX

Claimant 

-and-

XXXXX

Defendant

 DEFENCE

1. Preliminary

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

Background

2.1. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration xxxxxx which is the subject of these proceedings.

2.2. The Defendant was a visitor of a block of flats (named ‘xxxx’) on the XXXXXX 2019 to complete an eBay transaction with a Mr xxxx, a resident of xxxxx

2.3. The Defendant’s vehicle was parked in what was assumed to be a communal parking area on the material date in accordance with the terms of the property’s Lease.

2.4. The parking areas in the residence consists of (i) closed garages, (ii) unmarked bays in front of these garages and (iii) an unmarked common area or space for two vehicles which the defendant assumed suitable for visitors.

Failure to set Fair Terms

1.1   There was no visible signage requiring a permit at the entrance of the residence and the Claimant's existing signage was displayed in a font, which is too small to be read from a passing vehicle. 

1.2   The Defendant will rely on Link Parking v Mr L C9GF5875 [2016] where it was found that there was no entrance sign at a residential site and as a result the case was dismissed.

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

Fairness of the contractual terms and the ‘penalty’ in question

1.1 Section 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999 provides that “a contractual term which has not been individually negotiated shall be regarded as unfair if contrary to the requirement of good faith it causes a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumer”. The contract which the Claimant seeks to impose and which the Defendant had no choice but to enter into has not been individually negotiated and the Defendant avers that is therefore clearly unfair within the meaning of the 1999 Regulations.

1.2 The Claimant has added the sum of £190.97 to the original £60 parking charge for which no explanation or justification has been provided. Under Schedule 4 of the Protection of Freedoms Act the maximum sum, which can be recovered, is that specified in the Notice to Keeper which in this instance is £100. The Defendant avers that this additional sum represents an attempt at double recovery by the Claimant which the court should not uphold even in the event that judgment for Claimant is awarded. Furthermore the Defendant avers that no Legal Representative’s costs have actually been incurred by the Claimant and that the letters the Legal Representatives have sent are templates used as part of their mass litigation operation.

1.3 The Claimants signage purports to enforce restrictions on two specific areas of land. Two separate parties own each area of land yet are both managed by the Claimant. The signage present is affixed to the side of a property namely XXXXX Apartments, it could be argued that the signage does not clearly stipulate which area of the land is governed, the defendant did not park on land owned by XXXX Apartments.  Instead the vehicle was parked in an unmarked area at the front of XXXX House. There were no visible no parking or permit required type signs in this specific area and the signage therefore further unclear. 

Repute

The claimant’s solicitors Gladstone solicitors have received 260 1 star Google reviews, citing predatory, unlawful and fraudulent operations.  The claimant UK Car Park Management Ltd have a further 256 1 star Google Reviews many of which infer that they are “scammers”.  Neither company have posted Google responses to mitigate or challenge any of these reviews, thus it can be argued that both companies are known to operate dubiously.

Summary

In summary the Defendant avers 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. Enclosed is an example of General Form of Judgment or Order which the defendant would like the court to consider by way of similar case.

Statement of Truth

I believe the facts stated in this Defence are true.

Signed:

Full Name:

Dated:

nosferatu1001

Yes, we told you they woul dnot comply, and why. No copy needed. 
Too short. The big Abuse of Process (over the added fees) MUST be included. 

1505grandad

"1.1 Section 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999"

If you are copying the Defence indicated by C-m in post dated 15/2 did you scroll down to the next post on that thread because the paras from the above have been replaced.

Bachelorplace

I did  - I will double check thank you and sorry for the error.

Bachelorplace

In The County Court Business Centre Claim No: XXXX

BETWEEN UXXXXX

Claimant 

-and-

XXXXX

Defendant

 DEFENCE

1. Preliminary

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

Background

2 It is admitted that at all material times the Defendant was the registered keeper of vehicle registration xxxxxx which is the subject of these proceedings.

2.1. The Defendant was a visitor of a block of flats (named ‘xxxx’) on the XXXXXX 2019 to complete an eBay transaction with a Mr xxxx, a resident of xxxxx

2.3. The Defendant’s vehicle was parked in what was assumed to be a communal parking area on the material date in accordance with the terms of the property’s Lease.

2.4. The parking areas in the residence consists of (i) closed garages, (ii) unmarked bays in front of these garages and (iii) an unmarked common area or space for two vehicles which the defendant assumed suitable for visitors.

Failure to set Fair Terms

(i) There was no visible signage requiring a permit at the entrance of the residence and the Claimant's existing signage was displayed in a font, which is too small to be read from a passing vehicle. 

(ii) The Defendant will rely on Link Parking v Mr L C9GF5875 [2016] where it was found that there was no entrance sign at a residential site and as a result the case was dismissed.

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

 Fairness of the contractual terms and the ‘penalty’ in question

1.In accordance with s71(2) of the CRA, the court has a duty to consider the test of fairness in any consumer contract (whether the Defendant mentions the CRA or not) and specific attention is drawn to paragraphs 6, 10, 14 and 18 from the indicative list of unfair terms.  The Defendant specifically raises this issue and invites the Court to find that the consumer notices themselves and/or the exaggerated sum claimed and the terms relating to resident’s visitors using the site are punitive and unfair.

1.2 The Claimant has added the sum of £190.97 to the original £60 parking charge for which no explanation or justification has been provided. Under Schedule 4 of the Protection of Freedoms Act the maximum sum, which can be recovered, is that specified in the Notice to Keeper, which in this instance is £100. The Defendant avers that this additional sum represents an attempt at double recovery by the Claimant, which the court should not uphold even in the event that judgment for Claimant is awarded. Furthermore the Defendant avers that no Legal Representative’s costs have actually been incurred by the Claimant and that the letters the Legal Representatives have sent are templates used as part of their mass litigation operation.

2. The Claimants signage purports to enforce restrictions on two specific areas of land. Two separate parties own each area of land yet are both managed by the Claimant. The signage present is affixed to the side of a property namely XXXXX Apartments, it could be argued that the signage does not clearly stipulate which area of the land is governed, the defendant did not park on land owned by XXXX Apartments.  Instead the vehicle was parked in an unmarked area at the front of XXXX House. There were no visible no parking or permit required type signs in this specific area and the signage therefore further unclear. 

Failure to produce evidence

1. The Claimant did not supply evidence to the Defendant within a reasonable time despite the Claimant issuing a subject to access request.
   
2. When requsted, the Claimant referred the Defendant to a form on the Claimant's website which required a copy of the Defendants Drivers Licence as proof of identity. The Defendant expressed concern and asked by email if a copy of the claim notice would be sufficient. No suitable reply was provided at the time of posting this defence. Email correspondence will show the dates of these requests to which there has to date been no response.
3. With the hearing some XX days away, it is unfair for the Claimant to provide evidence now at this late stage.
   

 Abuse of Process

1. Again, the POFA, 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.  That sum cannot exceed the Trade Body ceiling of £100, yet the claim includes a substantial additional sum for which no explanation is given, and which appears to be an attempt at double recovery.  

2. The Court is invited to consider summarily striking out this claim, following the leads set by:

(i) District Judge Grand at Southampton (2019 - to date, multiple cases/AOS members of both Trade Bodies)

(ii) District Judge Taylor at the Isle of Wight  (2019 - to date, multiple cases/AOS members of both Trade Bodies)

(iii) Deputy District Judge Josephs at Warwick (2019 - to date, multiple cases/AOS members of both Trade Bodies)

(iv) District Judge Wright, at Skipton (January 2020, multiple cases, including Excel Parking Services Ltd and others)

3 All of the above Courts continue to summarily strike out all exaggerated private parking claims as 'an abuse of process', citing the Beavis case, the POFA and the CRA Schedule 2 and s71(2).   Judge Grand stated on 11th November 2019 in refusing a set aside application from BW Legal/Britannia Parking, that his decision was that the multiple private parking claims before Judges on that circuit were almost all 'tainted' bearing in mind that to allow such claims to continue to hearings (just by striking off, on a case by case basis, the 'double recovery' additional false damages.) would be to fail consumers who are faced in every case with possible default judgments for significantly exaggerated sums.  

4. Exaggerated judgments are currently occurring unabated in tens of thousands of private parking claims per annum, which it is averred, allows a cartel-like 'price hike' to operate and be waved through in cases where Defendants fail to defend for whatever reason, making a mockery of the court process and consumers alike.   All AOS member parking firms and both Trade Bodies are well aware of the multiple cases that are being summarily struck out since 2019, and instead of getting their house in order and removing the offending sums, they continue to file claims such as this and it seems they are concentrating on the diminishing court areas where Judges appear not to be taking such action, y

5. The Claimant will no doubt try to mislead the court by pointing to a clause in their own Trade Body's CoP that appears to 'allow' added sums by way of damages, as if somehow that supports the false sum that taints this claim.  The Defendant reminds the court that the IPC CoP is a self-serving document, written by and for the parking firms themselves.  Until a relatively recent re-shuffle of Companies House officers, the IPC Trade Body shared directors with the solicitor firm, Gladstones in a clear conflict of interests.  

5.1 The two competing 'race to the bottom' CoPs from the Trade Bodies who have engineered a veil of legitimacy to protect this industry for too long, are not regulators at all and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the initial enactment of the Parking (Code of practice) Act 2019.    

5.2 In the Beavis case, the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages, yet this Claimant continues to do so by adding false 'costs'.  Gary Osner, founder of 'parking charge debt collection' company ZZPS and a member of the British Parking Association Board, has to this Defendant's knowledge not been reported as saying anything at all about consumer rights and remedies, good faith or fairness.  Instead he states in an article that has been in the public domain since 2018:  ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''   

5.3 This money-driven mindset is in stark contrast with the will of Parliament in the new 2019 Act, which is consumer focussed: ''good practice means such practice in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''

5.4 As now observed by a growing list of Judges, in the Beavis case, the Supreme Court expressly approved that parking charge because it included all of the very minimal costs of an automated parking enforcement operation, including debt collection and pre-action letters.   The Supreme Court stated no less than three times that the business model's debt recovery/operational costs 'must' already fall within the parking charge, if such a charge is to be held to be a justified/necessary deterrent and disengage the 'penalty rule'.   It could not have been made much clearer by the Supreme Court, that whilst on the one hand, a parking charge does not have to represent 'loss' and will be higher than the usual limited 'damages' remedy for breach of contract, on the other hand it 'has to' be set at a level that includes the costs of the operation.  To quote from the Beavis case:

(i) at para 98. ''Against this background, it can be seen that the original £60 charge had two main objects. One was to manage the efficient use of parking space in the interests of residents and visitors, and of the [...] 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...'' 

(ii) 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.'' 

(iii) 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.''

 Repute

1. The claimant’s solicitors Gladstone solicitors have received 260 1 star Google reviews, citing predatory, unlawful and fraudulent operations.  The claimant UK Car Park Management Ltd have a further 256 1 star Google Reviews many of which infer that they are “scammers”.  Neither company have posted Google responses to mitigate or challenge any of these reviews, thus it can be argued that both companies are known to operate dubiously.
2. As a result of the above, the defendant did not supply the Claimant with further data requested, namely V5 documentation or scan of Drivers Licence. Subsequently the Claimant refused to provide the Claimant with evidence and did not respond to the Claimants correspondence. See (Evidence Email 1)

Summary

1. 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 Defendant is of the view that this Claimant knew or should have known that an exaggerated claim in excess of £100 for a parking charge which cannot have the same costs added again, is disallowed under the CPRs, the Beavis case, the POFA and the CRA.  

2. Given the fact that this is a disproportionate, unconscionable and exaggerated claim, it is an abuse of process and relief from sanctions should be refused.  Merely disallowing the added 'debt collection/admin fee/damages/indemnity' sum on a case-by-case basis for those relatively few Defendants who see their cases through to a hearing, as has been happening in recent years, is not enough and fails to pay due regard to the interests of consumers.  

3. The Court is invited to summarily strike out the entire claim, as other Court circuits continue to do.  A copy of a judgment or order striking out a similar claim is attached to this defence and the Court is invited to use it as a draft order under the Court's own case management powers and exercise their duty under the CRA 2015, s71(2).

Statement of Truth

I believe the facts stated in this Defence are true.

Signed:

Full Name:

Dated:

1505grandad

Hate to have to inform you but a new suggested template defence to adapt for all parking charge cases where they add false admin costs has been posted 26.2.20 by Coupon-mad with instructions (to hopefully get the claim thrown out):-

https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1

Bachelorplace

S*& you mean this one https://www.dropbox.com/s/02dk9z3pe2kb72n/Template defence 2020 without C.docx?dl=0