CCJ from EPS - Need set aside advice please!

FGLLA

EXTRACTS FROM DEFENCE (Template used for sections where I have left the titles in):

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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’).  

 

2.      In relation to parking on private land, it is settled law that for any penalty to escape being struck out under the penalty rule, it must be set at a level which already includes recovery of the costs of operating the scheme.  However, this Claimant routinely claims (as in this case) a global sum of £185 per alleged PCN.  This figure is a penalty, far exceeding the charge in the ParkingEye Ltd v Beavis [2015] UKSC 67 case and falling foul of the binding authority in ParkingEye Ltd v Somerfield Stores [2012] EWCA Civ 1338.  In the 2012 case, the Court of Appeal held that £135 would be an unrecoverable penalty but a claim for the PCN itself would not [ref: para 419].   Thereafter, ParkingEye quietly dropped their ‘PCN plus indemnity costs’ double recovery business model and pursued £85 in the Beavis case, where it was determined by the Supreme Court that a significant justification for that private PCN was that it already included all operational costs [ref: paragraphs 98, 193 and 198]. 

 

 

The Claim is tainted by an abuse of process and should not proceed to trial

 

The part played by the (non-regulatory) two conflicting Accredited Trade Associations

 

Pre-action protocol breach and nonsensical Particulars of Claim

  

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

16.  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.

 

17.  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.

 

18.  The Claimant identifies the breach as “parked without displaying a valid ticket/permit”. However, a ticket had been paid for via the Claimant’s online system identified on the Claimant’s signs as www.connectcashlessparking.com. An email confirmation of this purchase has been attached MMXX. As the fee was paid for online, it was impossible to display a ticket as no ticket had been produced to display.

 

19.  The PCN was issued at a time when the defendant was in the process of obtaining a ticket. One of the terms and conditions of parking state that parking should be made within 5 minutes of entering the car park; however, this is highly unfair given the time it takes to complete the actions mentioned above, when the 5 minutes has already started to be counted before a parking space has even been found. This term is also non-compliant to the BPA code of practice (REF XXX) which states that a reasonable grace period should be allowed, and also the CRA 2015 which requires terms to be fair and transparent. It is doubted the intentions of the landowner were that everyone who attempts to pay – goes to get coins, or download an app that takes more than 10 minutes in itself, is penalised within minutes whatever they do, such that payers are treated unfairly, the same as non-payers. Furthermore, I was accompanied by 2 very small children at the time, making compliance to this already unfair term even more difficult. I invite the Court to agree that 5 minutes isn’t a fair term.

 

20.  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

  

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

27.  (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].

28.  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

I had a question related to the template documents:
- Do any of the sections no longer count as I did infact purchase a ticket? for example my section 16 and/or 20?

Coupon-mad

£185 per alleged PCN

Surely it's £160 on the left of the claim form (or have you not seen the Particulars of Claim)?  £185 is never seen...

I had a question related to the template documents:
- Do any of the sections no longer count as I did in fact purchase a ticket? for example my section 16 and/or 20?

I agree, change it to make sense. 

Change the bits that don't fit and (if this is all about somewhere where you did pay) then be honest and  admit to driving and remove the POFA/keeper liability/more than one driver stuff. So #17 is not needed.  Put something else, such as admitting to driving (if true) and saying what happened and what sort of car park it was, and if the issue seems to be that you took too long to pay then talk about how busy it was, or did an app take an age to load, or was there a queue to pay at a machine... 

YOUR FACTS. 

But written in the third person, e.g. if you are admitting to driving then: ''the Defendant did this/that...'

But you DON'T append evidence to a defence.  That goes with the WITNESS STATEMENT.

FGLLA

Coupon-mad said:

£185 per alleged PCN

Surely it's £160 on the left of the claim form (or have you not seen the Particulars of Claim)?  £185 is never seen...

I had a question related to the template documents:
- Do any of the sections no longer count as I did in fact purchase a ticket? for example my section 16 and/or 20?

I agree, change it to make sense. 

Change the bits that don't fit and (if this is all about somewhere where you did pay) then be honest and  admit to driving and remove the POFA/keeper liability/more than one driver stuff. So #17 is not needed.  Put something else, such as admitting to driving (if true) and saying what happened and what sort of car park it was, and if the issue seems to be that you took too long to pay then talk about how busy it was, or did an app take an age to load, or was there a queue to pay at a machine... 

YOUR FACTS. 

But written in the third person, e.g. if you are admitting to driving then: ''the Defendant did this/that...'

But you DON'T append evidence to a defence.  That goes with the WITNESS STATEMENT.

The total on their claim form is 185, which is 160 plus a court fee of 25. Should I only mention 160 in point 2 then?

FGLLA

Coupon-mad said:

I had a question related to the template documents:
- Do any of the sections no longer count as I did in fact purchase a ticket? for example my section 16 and/or 20?

I agree, change it to make sense. 

Change the bits that don't fit and (if this is all about somewhere where you did pay) then be honest and  admit to driving and remove the POFA/keeper liability/more than one driver stuff. So #17 is not needed.  Put something else, such as admitting to driving (if true) and saying what happened and what sort of car park it was, and if the issue seems to be that you took too long to pay then talk about how busy it was, or did an app take an age to load, or was there a queue to pay at a machine... 

YOUR FACTS. 

But written in the third person, e.g. if you are admitting to driving then: ''the Defendant did this/that...'

But you DON'T append evidence to a defence.  That goes with the WITNESS STATEMENT.

Thanks again. I've amended the WS and Defence:

WS - Removed section related to NTK (previously 2.5)

This my Witness Statement in support of my application dated 2nd June 2020 to:

· Order for the claim to be dismissed in its entirety.

· Order to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14, please see MMXX

 

1. Background – Set Aside CCJ

1.1. The Claimant obtained a Default Judgement against me as the Defendant in March 2020. However, this claim form had not been served at my current address and I thus was not aware of the Default Judgement XXX, until I was doing a check on my credit file on 29th May 2020. This Claim was served at an OLD ADDRESS (XXX) in Sept 2019. However, I moved to a new address in November 2018.

1.2. Due to an old address being used, I never received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.

1.3. After being made aware of the CCJ on Friday 29th May 2020, the next working day, Monday 1st June, I promptly contacted the County Court Business Centre to find out details of the Default Judgement, and the following day, Tuesday 2nd June, I applied for the CCJ to be set-aside.

1.4. On the 28th of August, in the County Court at Derby, it was ordered for the CCJ to be set aside, due to the “substantive defence” to the original claim.

1.5. It was also ordered for the Claimant to pay back my costs, £41 to be paid by 10th September and £296 to be paid by 17th September. However, as of the 20th September, these costs are still outstanding and thus the Claimant is in breach of an Order of the Court. I have sent an email to the Claimant, and to their legal representatives, asking how payment will be made, but I have not received any response. I have completed a N323 – Warrant of Control form, which I will be submitting on Monday 21st September.

2. Order dismissing the Claim

2.1. I believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the Claimant is a Parking Company which seeks to claim for “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

2.2. The Claimant identifies the breach as “parked without displaying a valid ticket/permit”. However, having checked my records, I paid for a ticket via the Claimant’s online system, www.connectcashlessparking.com, as identified on the Claimant’s signs. I have attached email confirmation of this purchase MMXX. As the fee was paid for online, it was impossible for me to display this ticket as no ticket had been produced to display.

2.3. On the date of the alleged breach, after entering the car park, I parked my vehicle and proceeded to the ticket machine and signs to read the extensive terms and conditions of parking and fees and to purchase a ticket. I searched for some change but could not find enough and proceeded to a local business in order to obtain some. After failing to obtain some change, I proceeded to pay via the alternative online payment system instead.

2.4. One of the terms and conditions of parking state that parking should be made within 5 minutes of entering the car park; however, this is highly unfair given the time it takes to complete the actions mentioned above, when the 5 minutes has already started to be counted before a parking space has even been found. This term is also non-compliant to the BPA code of practice which states that a reasonable grace period should be allowed (MMXX), and also the CRA 2015 which requires terms to be fair and transparent. Furthermore, I was accompanied by 2 very small children at the time, making compliance to this already unfair term even more difficult

2.5. I submit that the Claimant’s claim is without merit as the claimed charge is an Unenforceable Penalty: I further submit that the Parking Charge that the Claimant claimed, given it is not based on any loss suffered due to the alleged breach, is nothing but an unenforceable penalty.

2.6. On this basis I believe that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety.

2.7. I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14, please see MMXX

FGLLA

updated defence:

The facts – an online ticket could not be displayed and unfair grace period

 

16.      The Claimant identifies the breach as “parked without displaying a valid ticket/permit”. However, a ticket had been paid for via the Claimant’s online system identified on the Claimant’s signs as www.connectcashlessparking.com. As the fee was paid for online, it was impossible to display a ticket as no ticket had been produced to display.

 

17.      The PCN was issued at a time when the defendant was in the process of obtaining a ticket. After parking the vehicle at the Copeland car park, the defendant proceeded to the ticket machine and signs to read the extensive terms and conditions of parking and fees and to purchase a ticket. The defendant searched for some coins to pay but could not find enough and proceeded to the closest business in order to obtain some. There was a large queue and after some time, the defendant proceeded to pay via the alternative online payment system instead, in the hope that it would be quicker. The defendant found that paying online also took a considerable amount of time, however, eventually was successful in obtaining a ticket. All of this was conducted whilst the defendant was caring for and allocating time to 2 small children.

 

18      One of the terms and conditions of parking state that parking should be made within 5 minutes of entering the car park; however, this is highly unfair given the time it takes to complete the actions mentioned above, when the 5 minutes has already started to be counted before a parking space has even been found. This term is also non-compliant to the BPA code of practice which states that a reasonable grace period should be allowed, and also the CRA 2015 which requires terms to be fair and transparent. It is doubted the intentions of the landowner were that everyone who attempts to pay – goes to get coins, or download an app that takes more than 10 minutes in itself, is penalised within minutes whatever they do, such that payers are treated unfairly, the same as non-payers. Furthermore, the defendant was accompanied by 2 very small children at the time, making compliance to this already unfair term even more difficult. The defendant invites the Court to agree that 5 minutes is not a fair term.

Coupon-mad

FGLLA said:

Coupon-mad said:

£185 per alleged PCN

Surely it's £160 on the left of the claim form (or have you not seen the Particulars of Claim)?  £185 is never seen...

I had a question related to the template documents:
- Do any of the sections no longer count as I did in fact purchase a ticket? for example my section 16 and/or 20?

I agree, change it to make sense. 

Change the bits that don't fit and (if this is all about somewhere where you did pay) then be honest and  admit to driving and remove the POFA/keeper liability/more than one driver stuff. So #17 is not needed.  Put something else, such as admitting to driving (if true) and saying what happened and what sort of car park it was, and if the issue seems to be that you took too long to pay then talk about how busy it was, or did an app take an age to load, or was there a queue to pay at a machine... 

YOUR FACTS. 

But written in the third person, e.g. if you are admitting to driving then: ''the Defendant did this/that...'

But you DON'T append evidence to a defence.  That goes with the WITNESS STATEMENT.

The total on their claim form is 185, which is 160 plus a court fee of 25. Should I only mention 160 in point 2 then?

Yes, the court fee is not the claimed sum of money, it's a fee. So £160 is the global sum they've made up!

The rest looks great but I would hold off with the Warrant a bit longer (add another 7 days onto it to be reasonable) because that adds costs and the Order only just arrived, you said, so maybe they were waiting for the written order. 

How about copy in the other side and see how long it takes them to rush and pay when they see you are saying you will get a Warrant of Control!

FGLLA

Coupon-mad said:

FGLLA said:

Coupon-mad said:

£185 per alleged PCN

Surely it's £160 on the left of the claim form (or have you not seen the Particulars of Claim)?  £185 is never seen...

I had a question related to the template documents:
- Do any of the sections no longer count as I did in fact purchase a ticket? for example my section 16 and/or 20?

I agree, change it to make sense. 

Change the bits that don't fit and (if this is all about somewhere where you did pay) then be honest and  admit to driving and remove the POFA/keeper liability/more than one driver stuff. So #17 is not needed.  Put something else, such as admitting to driving (if true) and saying what happened and what sort of car park it was, and if the issue seems to be that you took too long to pay then talk about how busy it was, or did an app take an age to load, or was there a queue to pay at a machine... 

YOUR FACTS. 

But written in the third person, e.g. if you are admitting to driving then: ''the Defendant did this/that...'

But you DON'T append evidence to a defence.  That goes with the WITNESS STATEMENT.

The total on their claim form is 185, which is 160 plus a court fee of 25. Should I only mention 160 in point 2 then?

Yes, the court fee is not the claimed sum of money, it's a fee. So £160 is the global sum they've made up!

The rest looks great but I would hold off with the Warrant a bit longer (add another 7 days onto it to be reasonable) because that adds costs and the Order only just arrived, you said, so maybe they were waiting for the written order. 

How about copy in the other side and see how long it takes them to rush and pay when they see you are saying you will get a Warrant of Control!

Ok Thanks! I've updated the docs and will send them shortly.
Regarding the warrant, well we received the written orders on around the 4th Sept, then one payment was due on 10th Sep, and the 2nd payment due on 17th.
I know they received the order as they complied with one part which was to re-send the claim form by 11th Sept.
i'll give them till 24th then to be even more reasonable, and yes i will copy them in!
If they haven't paid by the next hearing, does it have any effect on the judge or the hearing? are they viewed negatively due to it? 

Coupon-mad

They will face a roasting by the Judge if he/she is good, and you raise it as a first preliminary matter at the start!

Don't forget to do the two BSI & MHCLG Consultations online now!  Friends & family too.

FGLLA

Coupon-mad said:

Don't forget to do the two BSI & MHCLG Consultations online now!  Friends & family too.

Done!

Coupon-mad said:

They will face a roasting by the Judge if he/she is good, and you raise it as a first preliminary matter at the start!

Ok that's good to hear! All the docs have been submitted now.

They've made one of the payments this week, so I've amended the warrant of control. I gave them until Thursday, however as one of the smaller payments came through, should I hold off submitting the WoC in the hope the 2nd payment will arrive? Or just submit it ?
Also made the drop hands offer to Excel and ELMS legal who are representing them, gave them 7 days.