CCJ from EPS - Need set aside advice please!

FGLLA

Coupon-mad said:

I don't see why you have NOTHING to say in your defence at #18. 

You cannot possibly have NO FACTS to tell the Judge about anything relating to this car park? 

Unless you don't know what the CCJ is about, and have no idea what the signs look like or what the alleged breach even was or who was driving, in which case THAT is what the Defendant says in #18.

I haven't received any information at all from the claimant. 
However, the Court provided me with the PCN reference, and the name of the claimant. I put the PCN details into their online paying system and it showed me pictures of the car parked without a ticket displayed. From the pictures the car is parked right next to a large sign stating pay and display etc! I'm pretty sure I wasn't the driver at the time, but I can't be sure as I don't remember. I also don't know why a ticket wasn't purchased.

FGLLA

Apologies the Defence document is quite confusing for me!
To confirm, my Defence document should start with my reasons to set aside?
Then additionally everything else mentioned in the Defence template?

RedX I'll get started on your instructions now

Le_Kirk

Your witness statement is why you want the set-aside (and you have been offered several reason to use) whereas your defence concentrates on the legal and technical aspects of the ORIGINAL pcn and why it was received and why it was wrong.  Your WS in this instance should concentrate on things like (and I only offer these as examples) non-receipt of original PCN, non-receipt of letter of/before claim, non-receipt of court papers etc.  This could be due to having moved and not updated the V5C with the DVLA until AFTER the PCN was received.  There may be other reasons for non-receipt of documents BUT you will now this.  You point out that you were there to be found at your new address, electoral roll for example and the PPC should have done there due diligence.

FGLLA

Redx said:

A defence should concentrate on the PCN and the law and the claimant and their failures , the reasons why the PCN contract fails , not the abuse of process

The abuse of process is about the extra spurious charges and why they should not be allowed , but does not address the core terms of the parking contract

Let us assume that either the judge agrees that it was abuse and chucks it out , or the claimant withdraws it , then the parts left in the defence should address the core terms , the PCN  so make sure they do

The abuse of process has been added into the mix because it's true , but a defence that only deals with abuse of process is not a defence against the core issues

If this was Parking Eye instead of Excel , there would be no spurious extra charges , no abuse of process , just you defending yourself against the PCN charge only , capiche ??

If the Keeper (claimant) was definitely not the driver , say so in both , loudly , simply , forcefully

They should be compatible with each other , not contradictory

A WS should expand on the defence , not repeat it

A WS should include reference to all exhibits too , as your initials plus a number , as in TGW/01 , TGW/02 etc , your summary costs assessment uses one of those , usually the last number , say TGW/09

Save a temporary draft of the defence and remove or redact the abuse of process paragraphs , the parts left in should address defending the PCN , as if it was a Parking Eye case

Then add back the redacted paragraphs , proof reading all of it

Ok this is what I've got as a Defence to the PCN. However, should I add in the defence to the set aside first? or leave that in the witness statement :

_____________________

 

DEFENCE

_____________________

 

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

The points below are within the scope of the Defendant’s own knowledge and honest belief. Whilst parts of this defence may be familiar to the Claimant and/or their legal representatives, it would not be right for a litigant-in-person to be criticised for using all relevant resources available.  It is noted in any case, that these Claimants use third party pre-written templates as standard.  This statement was prepared by the Defendant specifically for this matter and unlike the Claimant’s case, it deals properly and individually with the facts, the alleged contract, and the quantum.  The contents of this defence represent hours of research by the Defendant, in order to grasp some knowledge of alien concepts of law, codes of practice and procedures relating to the specific area of Parking Charge Notices (‘private PCNs’).  

 

 

 

The facts - lack of prominently displayed contract and no agreement on the charge

 

2.     Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, it is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct.  Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms.  Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

 

3.     The Defendant is not the only driver of this vehicle and the Particulars of Claim offer little to shed light on the alleged breach, which relates to an unremarkable date some time ago.  It is not established thus far, whether there was a single parking event, or whether the vehicle was caught by predatory ticketing and/or by using unsynchronised timings and camera evidence to suggest a contravention.  A compliant Notice to Keeper (‘NTK’) was not properly served in strict accordance with section 8 or 9 (as the case may be) of the POFA.

 

4.     The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was agreed by the driver.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

 

5.     Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being struck out as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  Their decision was specific to that ‘unique’ set of facts: the legitimate interest argued, the car park location, and the ‘brief and clear’ signs with the parking charge itself in bold and the largest text.  The unintended consequence is that, rather than persuade courts considering other cases that all private PCNs are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and prominent signs) set a high bar that this Claimant has failed to reach.

 

6.     Due to the authority set by their earlier Somerfield case - mentioned at the start of this defence - it is worth noting that ParkingEye no longer add ‘debt letter costs/damages’ to their private PCNs and their own claims have escaped any reports of being summarily struck out for abuse of process.  This Claimant has failed to plead their case or to set out their terms or construct their charges in the same way as in Beavis and the penalty rule remains firmly engaged. 

 

7.     Without the Beavis case to prop it up, and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum.

 

8.     Further, in its conduct and signage, this Claimant has failed to comply with the CoP that they are signed up for, such as it is.  Under the Consumer Protection from Unfair Trading Regulations, it is an unfair/misleading business practice to state that a Trader complies with a Code of Practice, but in reality, does not.  This Claimant’s conduct is also significantly different from the Beavis case [para 111.] where even the Supreme Court were wrongly convinced that the CoP was some sort of regulatory framework:  

“And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA.  In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.’’

 

9.     A more relevant list of binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

 

(i) Spurling v Bradshaw [1956] 1 WLR 461 and

(ii) Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading examples of the ‘red hand’ rule, that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In other cases where parking firm Claimants and/or their legal teams have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the decision.  In fact, Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

 

10.  The Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence of a chain of authority flowing from the Landowner or Lessor of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this particular Claimant (Companies House lists their company number as 02878122) to issue private PCNs or what the land enforcement boundary and start/expiry dates are/were, and whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to issue PCNs ‘on behalf of’ the landowner on an agency basis.  

 

 

In the matter of costs; if this claim is not struck out, the Defendant seeks:

11.  (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and (b) that any hearing is not vacated but continues as a costs hearing, in the event of a typical Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases, by this Claimant.  Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that LiP costs are not necessarily capped at £19 ph.  It is noted that a Defendant may ask in their Summary Costs Assessment for the court to award their usual hourly rate for the many hours spent on this case [ref: Spencer & anor v Paul Jones Financial Services Ltd].

12.  In summary, the Claimant's Particulars disclose no legal basis for the sum claimed and the abuse of process taints this Claim.  The Claimant knew, or should have known, that an exaggerated claim where the alleged ‘debt’ exceeds £100 (ATA Code of Practice ceiling for a private PCN) is disallowed under the CPRs, the Beavis case, the POFA and the CRA.  The Defendant invites the court to find that this exaggerated claim is entirely without merit, and to bring an end to the case without a hearing.

 

Statement of Truth

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

FGLLA

Le_Kirk said:

Your witness statement is why you want the set-aside (and you have been offered several reason to use) whereas your defence concentrates on the legal and technical aspects of the ORIGINAL pcn and why it was received and why it was wrong.  Your WS in this instance should concentrate on things like (and I only offer these as examples) non-receipt of original PCN, non-receipt of letter of/before claim, non-receipt of court papers etc.  This could be due to having moved and not updated the V5C with the DVLA until AFTER the PCN was received.  There may be other reasons for non-receipt of documents BUT you will now this.  You point out that you were there to be found at your new address, electoral roll for example and the PPC should have done there due diligence.

Thank you! I'll keep the defence concentrated on the PCN and the WS on the set-aside.

Redx

Emailing a SAR to the DPO obtains all your data , documents etc , within 30 days

In a normal case you receive their WS plus exhibits when you exchange docs a few weeks before the hearing , this case is in disarray due to the different order it's being dealt with , I told you this earlier

There are other CCJ set aside threads on here where those people also had no info , or previous docs , so the lack of information about the original charge is a case in itself , as a reason for the set aside to be granted and to order the claimant to full disclosure for a proper defence of the PCN

The defence is not about the set aside , it's about the original PCN and core issues , contracts , signs etc

Your court application is about the reasons to grant your set aside

The WS is about reasons for all , plus evidence

The abuse of process is just another layer of confusion and obfuscation and greed

I fail to see why you cannot compartmentalize these separate issues , yes it's complicated but show me a legal process that isn't , probate , buying a house , getting a mortgage , it's all complicated

Coupon-mad

Ok this is what I've got as a Defence to the PCN. 

No, that's nothing like the template defence...and I told you what to put in as #18, I gave you the words to use if you now nothing about the PCN...you just say so...! 

Please use the template defence in full, with its Southampton judgment attachment.

FGLLA

Redx said:

Emailing a SAR to the DPO obtains all your data , documents etc , within 30 days

In a normal case you receive their WS plus exhibits when you exchange docs a few weeks before the hearing , this case is in disarray due to the different order it's being dealt with , I told you this earlier

There are other CCJ set aside threads on here where those people also had no info , or previous docs , so the lack of information about the original charge is a case in itself , as a reason for the set aside to be granted and to order the claimant to full disclosure for a proper defence of the PCN

The defence is not about the set aside , it's about the original PCN and core issues , contracts , signs etc

Your court application is about the reasons to grant your set aside

The WS is about reasons for all , plus evidence

The abuse of process is just another layer of confusion and obfuscation and greed

I fail to see why you cannot compartmentalize these separate issues , yes it's complicated but show me a legal process that isn't , probate , buying a house , getting a mortgage , it's all complicated

Thanks for the clear explanations again, I'm slowly getting it!
I'll be claiming that I have no information about the original charge. I see what you mean about disarray, as how can I put in a defence about signs, contracts etc when I don't have any info about the original charge? I guess I'll receive the WS from the claimant before the hearing.

FGLLA

Coupon-mad said:

Ok this is what I've got as a Defence to the PCN. 

No, that's nothing like the template defence...and I told you what to put in as #18, I gave you the words to use if you now nothing about the PCN...you just say so...! 

Please use the template defence in full, with its Southampton judgment attachment.

Thanks, I've used the template in full, but only pasted the above shortened version in response to RedX. Also thanks I did re-instate #18 as you advised, just don't know how to edit my posts and didn't want to keep reposting it!

Redx

as I mentioned earlier, all you have to do is show us the changes, you cannot edit posts until you have a number under your belt , no newbie can edit posts and there are no mods here, so repost because 14 posts is not enough (no I dont know the trigger number but its more)

the short draft is minus the AOP paragraphs as they are standard, the AOP ones will be in your final defence, to address AOP, but the core paragraphs are about the lack of info or incorrect address or whatever, addressing the pcn and parking issues, not AOP , so eventuallly a mix of both

SO THE FULL DEFENCE GOES IN, BUT ONLY POST THE ADAPTED PARAGRAPHS ON HERE , for checking

the aim is to show the set aside judge there is a valid defence to the original pcn, not AOP , we add in the AOP to all those numpties who have added spurious charges into the muddy waters, so almost everyone EXCEPT parking eye

the set aside judge will NOT decide on the original pcn and court claim, that is in the future