County court defence statement help - First Parking Ltd

MillieMoo2

Hello,
I have a county court claim from First Parking Ltd after several threatening letters and I have followed the guidance on newbies and now have to submit my defence statement.
Can I please get some feedback/advice on my draft? I have seen the template has been updated again but I feel the earlier version was more applicable to my case but advice welcome! Thanks appreciate it :-)

Redx

Post the adapted draft below for critique , but only the paragraphs you altered

Also post the issue date from the claim form below , plus the date of receipt of the AOS on the MCOL website

Coupon-mad

Use the latest version.  It covers important issues and puts the facts earlier.

MillieMoo2

Redx said:

Post the adapted draft below for critique , but only the paragraphs you altered

Also post the issue date from the claim form below , plus the date of receipt of the AOS on the MCOL website

Thank you this is what I drafted below (I have emboldened the specific aspects of the claim that I added).
Issue date was 23/10/20 and AOS receipt date 2/11/20

Defence Statement

Preliminary Matters.

(1). The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade
Association's Code of Practice B1.1 which says 1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient
right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.

(2). The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed, the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).

On the basis of the above, we request the court strike out the claim for want of a cause of action.

Statement of Defence

I am XX, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

The Defendant denies liability for the entirety of the claim for the following reasons.

(1). The identity of the driver of the vehicle on the date in question is unknown and has not been
ascertained.
1. The Claimant did not identify the driver
2. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
3. The code of practice for BPA registered parking companies clearly states ‘The driver is responsible for paying the parking ticket. ‘

(2) The claimant has not provided enough details in the particulars of claim to file a full
defence. In particular:
1. The Claimant has not explained or shown photographic evidence of how the car was “not within bay markings”.
2. The Claimant has not disclosed the alleged car park of the incident as the location has many.
3. The Claimant has given no indication of how the greatly increased outstanding amount and costs came to be from the original alleged offence.

(3) The Claimant does not own the land therefore, there is reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and have no locus standing to bring this case.
1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
2. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
3. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge.

(4) The Claimants Letter Before Action did not comply with the Practice direction on pre-action conduct. The Letter before Action can be seen to miss the following information
a) A clear summary of facts on which the claim is based.
b) A list of the relevant documents on which your client intends to rely, unless I am to assume they will be relying on no documents.

(5) The Claimant has at no time provided an explanation how the sum has been
calculated, the conduct that gave rise to it or how the amount has climbed from £80 to £224.64. This appears to be an added cost with apparently no qualification and a blatant attempt at double recovery, which the POFA Schedule 4 specifically disallows. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

(6) The signage was inadequate to form a contract with the motorist.
1. The signage on this site is inadequate to form a contract. It is illegible from the driver’s seat due to size and often foliage blocking the sign itself in some locations after further inspection. This is as well as the sporadic and random location of said signage.
2. The BPA code of practice states: ‘There will be a sign at the entrance to the car park that
will explain in the broadest terms that the car park is private land and that it is managed by an AOS operator’. The signage does not mention any details of parking must be “within bay markings”.
3. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

(7) The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

(8) The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a ‘local’ recovery agent (which suggested to the Defendant they would be
calling round like bailiffs) adding further unexplained charges with no evidence of how this extra charge has been calculated. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were
incorporated into the small print when they were not.

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.

Thank you for you advice as this feels very stressful despite me paying for parking, having a permit they are claiming that I apparently did not park in a marked bay (that do not exist!)!

KeithP

elliehickman said:

Issue date was 23/10/20 and AOS receipt date 2/11/20

With a Claim Issue Date of 23rd November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 25th November 2020 to file your Defence.

That's less than a week away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

KeithP

OP, have you based your forum username on your real name? If so, you may want to get your forum username changed to something completely anonymous.

To help with that, have a read of this item from the Forum's FAQs:

Can I change my username?

In most circumstances, we don't allow this.

The only reason we will change your username is if it puts your privacy at risk e.g. you've inadvertently registered using your name, email address or something which gives away your identity within your username.

If you fall into this category, email forumteam@moneysavingexpert.com your current username, the email address you registered with and three alternative usernames in order of preference.

Coupon-mad

On the basis of the above, we request the court strike out the claim for want of a cause of action.
Statement of Defence
I am XX, defendant in this matter.

'We' and then 'I' is confusing.  I though from the 'we' that this was a company defendant.

By not using the template defence, I can't see that you have anything pre-empting what the C will say about the Semark-Jullien case, which is well-covered in the current defence template.

MillieMoo2

Coupon-mad said:

On the basis of the above, we request the court strike out the claim for want of a cause of action.
Statement of Defence
I am XX, defendant in this matter.

'We' and then 'I' is confusing.  I though from the 'we' that this was a company defendant.

By not using the template defence, I can't see that you have anything pre-empting what the C will say about the Semark-Jullien case, which is well-covered in the current defence template.

Shall I change to this template? Start of it below? Keeo all that info on parking eye in there even though its not a parking eye case? Thank you

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (Defendant)

____________________

DEFENCE

____________________

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 (understood to have a bare licence as managers) 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 the vehicle in question but liability is denied. 

^^^ CHANGE THE ABOVE IF NOT TRUE, OBVIOUSLY! ^^^ 

(Also, continue here in your words, by either also admitting to being the driver, or hirer/lessee, if you were.   Alternatively, deny being the driver in #2, but ONLY IF TRUE.  If you DON'T KNOW, say so).

 

MillieMoo2

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

Coupon-mad

Keep all that info on parking eye in there even though its not a parking eye case?

Do what?  If you don't understand why the ParkingEye v Beavis and ParkingEye v Somerfield cases are relevant to ALL cases, you need to slow down and actually read what it is telling the Judge.

That template is for ALL NON-PARKINGEYE CASES...this is meant to be simple.  Just add your facts.  Takes mere minutes.

MillieMoo2

OK so I only need to change sections 2 and 3 and keep all 18 points? Just wanted to double check thank you