The deadline is 4pm, 8th of January 2021 and I will need just a bit more time to get hold of the needed information to build my final defence. Is it unreasonable for me to ask for an extension at this point?DON'T DON'T DON'T! See nosferatu1001's advice above and flipping well comply with the Order. You don't need more time. You now have one day to comply with that order.You don't need the SAR back first (but do request one, but from the CLAIMANT). No solicitor has claimed anything from you so why on earth would you send the solicitor a SAR? That is the opposite of what the NEWBIES thread says about a SAR!
2. Default Judgment2.1 I understand that the Claimant obtained a default judgment against me as the Defendant on the 21st of March 2019. However, this default judgment was not served at my current address. Therefore, I was not aware of the County Court Judgment until I received a debt recovery letter from Equita on behalf of Gladstones Solicitors dated 25th of September 2020.2.2 As the letter stated, a debt collector would come knocking on my door if I did not pay the outstanding amount and there did not seem to be any way out of it. The situation was extremely stressful and although I could have handled it better I did my best to keep composure. I proceeded to contact the debt collector to ask for more information then shortly after I submitted my claim to set the order aside.
2.3 I understand that the judgment was served at 5 Waterside Drive, Hockley, Birmingham, B18 5RY. However, I had moved to a new address on the 19th of June 2018 which is the day my tenancy ended. I have attached documents that attest to the aforementioned date and to also indicate when my new tenancy began. Furthermore, the address on my driver’s licence was updated promptly on the 4th of July 2018 with the V5 being updated slightly later on the 19th of September 2018. See EVIDENCE A2.4 I have never received any previous documentation in regards to the matter from the Claimant and I therefore await full disclosure of the Penalty Charge Notice issued which was requested on the 7th of January 2021 via a Subject Access Request.2.5 I suggest that the Claimant did not make reasonable enquiries as to my current address before pursuing the court order especially considering they had good reason to believe that they did not hold my current contact details. As stated in the Civil Procedure Rules CPR 6.9(3), where a claimant has reason to believe that the address of the defendant referred is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business . At the time of the County Court Judgment, my V5C, driving license and HMRC records were updated to reflect my new address. SEE EVIDENCE C. Furthermore, considering they had not received any reply to their correspondence I believe the Claimant had a reasonable cause to question whether their information was up to date.2.6 I believe that the Claimant behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details. According to publicly available information, my circumstances are far from being unique. The Claimant appears to have consistently failed to reasonably pursue claims, and is known to be into the practice referred to as ‘Credit Clamping’, which several members of the Government have strongly condemned. Theresa May pledged to investigate the ‘abuse’ of the CCJ system, while the Rt Hon Sir Oliver Heald QC MP was quoted as saying on the 23rd December 2016: "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address." and "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses."2.6 On the basis provided above I believe that the Claimant did not fulfil their duty to use the Defendant’s current address when sending the claim.2.7. Considering the above, I as the Defendant was unable to defend the claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.3. Order dismissing the Claim3.1 I further believe that the original claim has no merit and should thus be dismissed. I understand the Claimant to be a Private Parking Company that uses ANPR in order to issue “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.2.1. It appears that the Claimant obtained details of the vehicle for which I was the Registered Keeper at the time and used those details to make a claim for a ‘Parking Charge Notice’. Any Notice to Keeper served by the Claimant must comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. This includes the requirement to issue the Notice to Keeper within 14 days of the alleged incident. If the Claimant did not comply with the requirements of the Act they cannot claim this charge against me as the Registered Keeper in any case. Since I had not received any documentation from the Claimant prior to finding out about the Default Judgement, I suspect that the Claimant will did not comply with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.3.3 If the Notice to Keeper is not issued within 14 days, then the Claimant is required to prove who the driver of the vehicle was at the time of the alleged incident. The vehicle to which I was the Registered Keeper at the time was insured to be driven by two adults (see EVIDENCE C) I submit that the Claimant cannot provide such evidence to prove the driver of the vehicle they claim was involved in the alleged incident.2.5. I dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.2.6. I submit that this is not a penalty charge notice but an agreement based on contract law and therefore the Claimant must:a) show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that they are after the right personb) set out the facts on which it is asserted that the claimant has a cause of action against this defendant, andc) identify the 'relevant obligation' of the defendant to pay parking charges and the 'relevant land' on which the parking is said to have occurredd) state whether the claim is in relation to a 'relevant contract' or in respect to an alleged trespass or other tort (as per the POFA 2012 Schedule 4)e) disclose full particulars and a contract, in order to evidence a claim in lawf) evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a brazen attempt at triple 'recovery' reaching £266 despite the POFA, 2012 also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed).3.6. On this basis I believe that the Claimant has not provided any reasonable cause of action and absent the above being produced in short order, I ask the court of its own volition to strike out this claim.3.7 If required to defend at a further hearing, I will require all copies of paperwork, letters and other documentation including pictures of all signage from the Claimant in order to make informed decisions and statements in a comprehensive defence as keeper of a vehicle.Statement of Truth:I believe that the facts stated in this Witness Statement are true.Full name: XXXXXXXXXXXSigned: ______________________
Should I be also submitting tenancy agreements, photos of driver's licence and V5 + HMRC updates and ultimately a copy of the insurance policy I had at the time?
Also, I'm not too fond of the part with Theresa May and Sir Oliver Heald quotes. It feels a bit out of touch. Should I keep it?
IN THE COUNTY COURT at XXXXX
Claim No.: XXXXX
- and -
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. The Defendant was not the driver at the moment of the alleged offence.
3. The Defendant was made aware of the parking charge via a debt recovery letter sent by Equita on behalf of Gladstone Solicitors (the legal representative of the Claimant) dated 25th of September 2020. A further credit check revealed that the claimed sum was in relation to the previous home address of the Defendant. The Defendant had not received any correspondence from the Claimant in regards to the matter and presently awaits full disclosure of the Penalty Charge Notice issued which was requested on the 7thof January 2021 via a Subject Access Request. If the Parking Charge Notice in this matter did not include ‘Protection of Freedoms Act 2012’ wording, the Claimant cannot hold the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of the vehicle involved in the alleged offence. Upon researching similar cases, it was revealed that the standard charge for failing to display a valid parking ticket issued by Euro Parking Services Limited is £100. The default judgment as it appears on the Defendant’s credit score is for the sum of £266 although the latest modification to the outstanding amount requires the Defendant to pay only £243.85. Under the Protection of Freedoms Act 2012, a keeper can only be pursued for the sum on the Notice on the Keeper whereas in this case the amount has almost tripled.
4. The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon. Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3. That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2. NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.
5. It is denied that the exaggerated sum sought is recoverable. The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis  UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD  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. ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.
6. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain. It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.
7. The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties. It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing. He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice. He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed. It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').
8. Pursuant to Sch4 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). It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land. There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.
The ParkingEye Ltd v Beavis  UKSC 67 case is distinguished
9. 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 dismissed as punitive and unrecoverable. However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.
10. Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text. The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.
11. Without the Beavis case to support the claim 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.
12. The Supreme Court held that 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. In the present case, the Claimant has fallen foul of the tests in Beavis.
13. 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 Sch2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.
14. 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  1 WLR 461 (the ‘red hand rule’ case) and
(ii) Thornton v Shoe Lane Parking Ltd  EWCA Civ 2,
both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and
(ii) 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 many cases where parking firm Claimants 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 ratio. To pre-empt that, 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.
15. Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed: 'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.
16. In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder 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 Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.
In the matter of costs, the Defendant seeks:
17. (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.
18. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.
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.
I currently have no costs since I had applied for a fee remission so should I delete the part about seeking reimbursements? Or should I expect some costs if the PPC goes on with the the claim?
What's your best story from 2021?
All 105,000 policyholders affected
Organic fruit & veg