PCN at surgery - Defence

vol69

Hello,

Is the defence below OK, please?

I'll send it with Skimpton and Southampton cases attached.

CLAIM No: XXXXX

BETWEEN:

CIVIL ENFORCEMENT LIMITED (Claimant)

-and-

XXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXX on the material date. The car was parked on the material date in a marked bay allocated to company Civil Enforcement Ltd. (CEL) at XXXXX car park, for a visit to XXXXX Surgery, XXXX Surgery, 2nd Floor, XXXXX House, 6 XXXXXX Road, XXXXXXX, XXXXX.

2. The Defendant frequently visits outpatients surgeries for clinical attention, which hasn’t been evidenced due to the sensitive nature of the information. In NHS patient car parking principles Guidance is stated “Concessions, including free or reduced charges or caps, should be available for the following groups … frequent outpatient attenders”.

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

3.1. The Particulars of Claim on the N1 Claim Form refer to “Claim for monies relating to a Parking Charge...in breach of the terms + conditions (T+Cs). Drivers are not allowed to park in accordance with T+Cs fo use.”. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached.

Accordingly, 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.

3.2 PRACTICE DIRECTION 22 – STATEMENTS OF TRUTH not followed, as paragraph 3.9 “The individual who signs a statement of truth must print his full name clearly beneath his signature.” hasn’t been respected by the Claimants representative.

4. 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, especially with no 'grace period' mentioned. They merely state “Permit holders only – if you park without obtaining a permit, you agree to pay £100. These terms apply at all times. Additional costs will be incurred if payment is not made within 28 days”.
The defendant would therefore suggest the sign is a forbidding sign and is only making an offer of parking to permit holders only. If a driver is not authorised to park in the car park due to it being permit holders only then you cannot be offered a contract. The only claim would be for trespass which only the landholder can claim, and only for a nominal sum.

4.1. The signs refer to“Permit holders only/Terms of parking without permission”, and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is questionable, since if there is no permission, there is no offer, and therefore no contract.

5. In any case, 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 no doubt, to issue PCNs - but 'on behalf of' the landowner, which would give them no authority or standing.

5.1 The PCN issued by CEL at 02/05/2019 uses as address “CAR PARK AT XXXXXX HOUSE, SXXXXXX STREET, XXXXXX, XXXXX”, but the XXXX Surgery’s address is XXXX Surgery, 2nd Floor, XXXXXX House, YYYYYYY, XXXXX, XXXXX.

Due to the discrepancy of addresses of XXXXX Surgery, and of the one mentioned by the Claimant on the PCN, I require evidence that the correct land is managed by the Claimant, with the land being clearly defined in the contract with the Landlord.

5.2. Even if the Claimant was authorised to issue PCNs in their own right, it is denied that they could do so unfairly in a grace period, disregarding the health services nature of the facilities, and outwith the scope of the BPA CoP. It is denied that the limited landowner contract gave this Claimant the express legal standing to form contracts and litigate in their own name.

6. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because Claimant has no right to issue a PCN within 4 minutes and without a grace period, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

6.1 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.

Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

7. As the 'parking charge' was free, then the sum 'owed' is a quantifiable figure. Despite it was an appointment of a genuine patient to XXXXX surgery, the Defendant received a predatory PCN applied demanding an extortionate £100 (also described also as the 'parking charge' but clearly being an unrecoverable penalty). This is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

7.2. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £0 bill to suddenly become £500. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was a minuscule sum in pence (if unpaid, which it was not) and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

8. 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 £82, which the Defendant submits have not actually been incurred by the Claimant.

8.1. These have been variously described as “administration 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 Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £82, and also £11.01, artificially hiking the sum to £999.01. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

8.2. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste PPS robo-claims at all, on the balance of probabilities.

8.2.1. 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.

9. Given that it appears that this Claimant's conduct provides for no cause of action, is without merit, and has no real prospect of success, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to Civil Procedure Rules 3.4.

9.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of patients at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing genuine patients to court under excuse of a contractual breach that cannot lawfully exist.

I believe the facts contained in this Defence are true.

Signature

Name


Date

Coupon-mad

That is quite a bit older than the one I posted today - the advantage of the new one is that it asks the Judge to read the stuff about Abuse of Process first and to strike the claim out.  It also attaches three judgments/Orders, not two.

Can I encourage you please to test the new template, download it and adapt it then post your version here?

See the thread I started today (no link!).

KeithP

Is this the same incident as being discussed in your earlier thread?...

https://forums.moneysavingexpert.com/discussion/6107425

Coupon-mad

If it is, please let this thread die. 

DO NOT REPLY HERE AGAIN PLEASE IF THIS IS A DUPLICATE THREAD.

Post your draft defence (NOT THE ABOVE ONE) on your existing thread.  The one you download from my thread, suitably adapted - post that on your older thread and stay there ONLY. 

We cannot handle more than one thread per case.  Don't start new threads at each stage, at all (please).  Always reply on your thread.

vol69

Coupon-mad said:

That is quite a bit older than the one I posted today - the advantage of the new one is that it asks the Judge to read the stuff about Abuse of Process first and to strike the claim out.  It also attaches three judgments/Orders, not two.

Can I encourage you please to test the new template, download it and adapt it then post your version here?

See the thread I started today (no link!).

oh GOD.. I can't write a defence for the third time.. is the defence I posted here bad?

Coupon-mad

You are not going to need to write another.  Use mine.

vol69

Coupon-mad said:

If it is, please let this thread die. 

DO NOT REPLY HERE AGAIN PLEASE IF THIS IS A DUPLICATE THREAD.

Post your draft defence (NOT THE ABOVE ONE) on your existing thread.  The one you download from my thread, suitably adapted - post that on your older thread and stay there ONLY. 

We cannot handle more than one thread per case.  Don't start new threads at each stage, at all (please).  Always reply on your thread.

I'll continue the discussion in this thread, if you don't mind..

vol69

Coupon-mad said:

You are not going to need to write another.  Use mine.

DO NOT REPLY HERE AGAIN PLEASE IF THIS IS A DUPLICATE THREAD.

I'll keep that post and let the other die, as the subject of this post is much more representative of it's content.

Coupon-mad

OK I see what you mean!

D_P_Dance

Have you seen this?
https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

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.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

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

vol69

D_P_Dance said:

Have you seen this?
https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

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.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

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

Hello D_P_Dance, and thanks for all your support. What should I write and to who MP? Just connected to internet again.

Best