Premier Park claim - UPDATE: I now have a hearing date

Redx

That is why we expect questions to be answered , because you asked for advice , you accept that respondents provide it for various reasons , once the basics are known

Just go with the flow !!

If you are using the template defence by coupon mad , just post your draft of paragraphs 2 and 3 , the ones you adapt , below , various people will critique it for you

Coupon-mad

The template defence already has the stuff about signage in it.

Paras 2 and 3 are meant to cover the facts, such as if the D was driving/keeper (or doesn't know) and if it was dark or other facts about the car park and why the car was there and in what way the D feels they are not liable.

heckin_pupper

Update with my Defence draft
Hi everyone, this is what I have so far for my defence. I'm a bit embarrassed posting it, but I'm hoping I can get some feedback so I can improve my points. Please let me know if I need to put this in a new thread, I pasted it here for continuity.

I submitted a SAR to Premier Park and received confirmation of receipt, but nothing else yet. BWLegal have meanwhile sent me two photos of the car (reg is visible, driver isn't) in motion, they are claiming these are of the car entering and exiting the car park. I am now even more confused as to which parts of the that car park belong to PP and which don't..

My Defence draft is below, adapted from the template and a few other cases/threads. Redacted info and my comments are in [brackets].

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant has standing to sue, nor to form contracts in their own name at the location.
The facts as known to the Defendant:
2.       It is admitted that the Defendant was the registered keeper of vehicle registration mark [REG] on [DATE].
2.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver of the vehicle on [DATE]. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (“POFA”) .
2.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
2.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
2.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.
2.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
3. According to Schedule 4 POFA paragraph 9, a notice which is to be relied on as a notice to keeper must meet the following requirements: [ not sure if I should paste the requirements there or is it better to just reference ]
It is disputed that the Claimant has complied with these requirements.
4. The Particulars of Claim set out an incoherent statement of case. It is unclear what the alleged contractual breach is or which terms and conditions the Defendant supposedly did not comply with. The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5:
Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.
4.1. The Claimant has failed to present evidence of any alleged contractual breach through the vehicle in question in the Parking Charge Notice sent to keeper, as well as in subsequent communications from the Claimant and their legal representative.
4.2. The Claimant has failed to set out their contractual terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The Defendant submits the car park encroaches public access to the Royal Mail Customer Service Point. It is denied that the Claimant's signage in the location effectively and clearly specifies the section of land that they apply to.
4.3. The Claimant is put to strict proof of a chain of authority flowing from the landholder of the relevant land to the Claimant. It is not accepted that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary is, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name. 
5. The quantum has been enhanced in excess of any sum hidden in small print on the signage at the location that the Claimant may be relying upon to pursue this claim. Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, paragraph 5.14.3. S71(2) of the Consumer Rights Act 2015 requires the Court to consider the fairness of a contract term and the provision of additional charges falls into example 6, 10 and 14 of the indicative list of unfair terms in schedule 2 of the act.
5.       It is denied that this exaggerated sum sought is recoverable. The Defendant's position is that this money claim is wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135. Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper. At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable. The Defendant submits that the Claimant is attempting double recovery of the cost of their standard automated letter-chain.
5.1. [I will research the following cases and reference them properly] 
F5DP83QY - DJ Brown at Bath County Court - 1st July 2020
F4DP5264 & F4DP5279 - DJ Giddings - September 2019
F0DP163T - DJ Grand - 11th July 2019.
F0DP201T - DJ Taylor - 10th June 2019 - echoed an earlier General Judgment or Order of DJ Grand, 21st February 2019 Newport (IOW) County Court
6.      The Defendant disputes that the Claimant has incurred £50 in additional legal costs for the same letters that the Beavis case decision held were a justification for the parking charge sum of £85. 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. The Claimant is put to strict proof to show how this cost has been incurred. 
7. Pursuant to Section 4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case). 
In the matter of costs, the Defendant seeks:
8.  (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 late Notice of Discontinuance. The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.
9. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in attempting to claim fanciful costs which they are not entitled to recover.

Please let me know what you think. Thank you for your time!

Coupon-mad

You have 2 x number 5.

Remove #6.  You've been reading a really old defence example.  They can add £50 in legal costs.

I would remove 5.1. because those cases add nothing much (one was appealed) as is shown in the template defence thread, which you haven't used.  I suggest you should use the template defence instead and remove pretty much all the stuff in #2 and #3 about the POFA 2012 because Premier Park do comply with it and your case is surely more about the unclear delineation between shared car park areas and that there is no evidence of a contravention or where the car parked. 

This is what your defence is really about and all you need to do is put this in as #3 in the template defence:

I don't have the original PCN anymore but I recall the contravention was something vague like "Unauthorised Entry/Parking" and the CCTV picture was of the car not even in a parking bay - this is in a shared car park, partly managed by PP and partly free of charge for customers of another business. Everyone in the family has used the shared car park but we have always thought we were on the free side, however I drove there yesterday and I can't really tell where the restricted area begins and ends, so at this point I legitimately don't know.

Le_Kirk

heckin_pupper said:

Please let me know if I need to put this in a new thread, I pasted it here for continuity.

It is absolutely the right thing to do to use your own thread for continuity.  Post the amendments to only paragraphs 2 & 3 of the template as advised by @Coupon-mad.

heckin_pupper

Thank you for your help @Coupon-mad and @Le_Kirk !
I've now changed my defence to use the template, and customised only points 2 and 3. The deadline is tomorrow 4 pm so I intend to submit my defence per email as advised by KeithP in the defence template thread, tonight or tomorrow morning.

Let me know what you think 

2.       It is admitted that the Defendant was the registered keeper of vehicle registration mark [REG] but liability is denied. The vehicle in question is used by multiple members of the Defendant’s family and the Defendant has no recollection of whether they were the driver of the vehicle on [DATE]. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver of the vehicle on the day of the alleged contractual breach. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (“POFA”) . 
3. The Claimant has failed to present photographic evidence of any unauthorised parking through the vehicle in the Parking Charge Notice served to keeper. The land at [ADDRESS IN POC] is the only public access point for staff and customers of the Royal Mail Customer Service Point at [ADDRESS IN POC] and is used for this purpose by members of the public. It is denied that the claimant's signage in the location sets out the terms and land enforcement boundary in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The unsubstantial grounds for this claim are apparent in the original Parking Charge Notice and subsequent communications from the Claimant and their legal representative, each containing additional fabricated costs and increasingly threatening warnings. The Defendant submits that the Claimant’s bright, alarmist letters were seen as a scam or spam, and discarded.

Coupon-mad

Great, that's better.  I would just add:
The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (“POFA”).  The Defendant denies that this Claimant fully complied with Schedule 4 of the POFA and the Claimant is put to strict proof.

Le_Kirk

The Claimant has failed to present photographic evidence of any unauthorised parking through the vehicle in the Parking Charge Notice served to keeper. 

Not sure I understand what you are trying to say here.  Did you mean: -

The Claimant has failed to present photographic evidence of any unauthorised parking through  by the vehicle in the Parking Charge Notice served to keeper. 

heckin_pupper

Hi all,
We're actually going to court now ! 
My Notice of Allocation states "Each party must deliver to the other party and to the court office copies of all documents on which that party intends to rely at the hearing by 4 pm on 21 April 2021. [...] The documents to be sent to the other party and the court must include the statements of all witnesses (including the parties themselves)."
I am therefore working on my Witness Statement now and I have the following questions:
1. As I am just the Keeper in this case, I haven't "witnessed" anything per se, from looking at other examples on this forum I gather my WS should be further elaborating on the points in my Defence, with evidence. Is this correct?
2. The fact that the case was not struck out and we are now actually having a hearing (in June 2021) is not filling me with hope, especially after reading this thread in which the Defendant put together a compelling WS, only to then have the judge side with the Claimant on every single point, and the total payable amount increased. I'm on the fence due to the possibility of investing days and days of work into preparing for this hearing and then being eviscerated like that. Is there anything I can do to increase my chances? This is Deputy District Judge Kirkcionel (according to the Notice of Allocation).

Coupon-mad

No cases are being struck out now, except in Leeds/Bradford.  Judges are scared to strike them out without hearing more detail.

Getting a hearing date does NOT mean there will be a hearing.  PPCs often discontinue when they see a decent WS.  Literally every week!

The Judge will not the the one who allocated the hearing.  Unlikely.  It'll be whoever is available for a phone hearing that day, if the PPC has not discontinued.  99% of cases are either discontinued, or we win.