Duplicate thread, please ignore

Devonisheaven11

Thank you for all the advice and documents posted in this forum, they've been of great help and can't wait for this to be over and done with.

The Aos has been submitted on time and a draft defence is attached below. Also attached is an image of the PPS sign located at the car park for reference.

In this case, the defendant was issued a PCN by Premier Parking Solutions Limited for delayed payment on entry on the 3/1/2020. The defendant paid the full amount however this has been deemed as 'delayed'. BW legal have also been involved and added additional fake charges. 

The defendant has written a short paragraph at the beginning of the facts section and would really appreciate any feedback. Facts from the defence templates have also been included however the defendant is unsure how many to include and which ones best suit this event.

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Premier Parking Solutions Limited

- and -  

……………….

____________________

DEFENCE

____________________

 

The facts as known to the Defendant:

 It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.  

The Claimant’s case has been based on a supposed delayed payment on entry recorded on the 03/01/2020 at Bovisand car parks. The defendant paid in full for the time spent at the car park and was shocked to hear that this event was even a case to be considered. The Claimant had not stated a set time that the payment needs to be made, therefore making the bases of their case invalid. The defendant did not knowingly accept being punished for 'paying late’. The Claimant’s signs include vague terms in a mixture of small fonts, much too small to be made out when purchasing the ticket.

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’).

 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 £160 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]. 

 It is an abuse of process for a Claimant to issue an inflated claim for a sum which it is not entitled to recover.  The above authorities could not be clearer.  Parking firms must choose between a ‘Beavis-level’ charge calculation or loss-based damages.  A parking firm cannot seek to plead their claim in both but this Claimant routinely does - and has done in this case. 

 The Claimant’s notices/demands vaguely allude to unidentified sums being claimed ‘on an indemnity basis’.  Such imprecise terms 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.  Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas. Recent examples include multiple Orders from District Judge Fay Wright sitting at Skipton County Court, with similar Orders seen in the public domain from Deputy District Judge Josephs sitting at Warwick County Court, District Judge Taylor at the Isle of Wight and Deputy District Judge Colquhoun sitting at Luton County court in March 2020.   All were summarily struck out, solely due to parking firms falsely adding £60 to inflate the claim. 

 This matter was recently determined by District Judge Grand, sitting at Southampton County Court on 11 November 2019, where the Claimants sought to have multiple strike out Orders set aside. The application was dismissed, and a copy of the Approved Judgment is appended to this defence.  No appeal was made in that case, where the learned Judge found that £160 parking claims represented an abuse of process that ‘tainted’ each case.  It was not in the public interest for courts to allow exaggerated claims to proceed and merely disallow the added £60 at trial on a case-by-case basis.  To continue to do so would restrict the proper protections only to those relatively few consumers robust enough to reach hearing stage.

 That hearing was attended by BW Legal’s barrister, acting for an AOS member of the British Parking Association (‘the BPA’) but in February 2020, Skipton County Court refused a similar application from a barrister for Excel Parking Services Ltd (members of the rival Trade Body, the International Parking Community -‘the IPC’).  Whilst these cases are not precedents, it is only right that Defendants should use them and expect no less protection and proactive sanctions against parking firms whose claims happen to fall to other courts.

 In this situation, it ought not to be left to hardy individuals to raise this issue time and again at trial, yet other disputing consumers are being so intimidated by the threats in a barrage of debt demands and the possibility of facing court, that they pay a legally unrecoverable sum to make it go away.  Such conduct has no proper function in the recovery of alleged consumer debt.  To use the words of HHJ Chambers QC [ref: Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) - https://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html ]:

‘‘Whatever the strength of the suggestion that the courts should only be a last resort, there can be no excuse for conduct of which the sole purpose must have been to make [...] life so difficult that they would come to heel.  In a society that is otherwise so sensitive of a consumer's position, this is surely conduct that should not be countenanced’’

 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 costs.  The sum also exceeds the maximum amount which can be recovered from a registered keeper as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’).  It is worth noting that in the Beavis case, even though the driver was known, the Supreme Court considered and referred more than once to the POFA because it was only right that the intentions of Parliament regarding private PCNs were considered.

 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.

 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.

In the matter of costs, the Defendant seeks:

(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].

 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.

Defendant’s signature: ……

Defendant’s name: ……

Date: ……

nosferatu1001

1) date of issue
2) date of aos
3) all para must be numbered 
4) we don't need to see the standard para. Just the 2 that you're asked to alter. 

KeithP

Is this a continuation of your other thread?

If so, please copy the above post as a reply onto your existing thread.

Having done that, please edit the title of this thread and the content of the opening post so that they read something like:

Duplicate thread - please ignore

KeithP

See what happens when you start a second thread? People ask questions that have already been answered.

Devonisheaven11

Apologies, I'll do that now.