CCJ Sent to old address - Napier Parking, BW Legal

ngwino88

That is my witness statement. I would appreciate your feedback on if it is okay to now be sent?

Coupon-mad

Remove 2.6 to 2.15 inclusive because that's all defence-related, and you are already appending a draft defence (hopefully the forum;s template defence, suitably adapted at para 3, as all newbies do with any claim that's not from ParkingEye).

Google wilfully and get rid of it.  Flipping heck the person who first used that word in an example people keep copying, has something to answer for!  We say that all the time - do people really not know what wilfully means?!  It's not what you want to say.

And because the hearing will be remote by phone, don't say this (below) because you can't produce documents on the day at a phone hearing:

Confirmation of this will be provided at any set aside hearing, in the form of emails acknowledgement of change of address from different sources as well as attached tenancy agreements and utility bills Schedule (X). I thus was not aware of the Default Judgement until 23 September 2020 following a notification of an automated credit report update.

Instead, you will have to append all that now with your N244, your WS & draft defence (signed and dated PDFs) and draft order (word doc so the Judge can use it)

ngwino88

Coupon-mad said:

Remove 2.6 to 2.15 inclusive because that's all defence-related, and you are already appending a draft defence (hopefully the forum;s template defence, suitably adapted at para 3, as all newbies do with any claim that's not from ParkingEye).

Google wilfully and get rid of it.  Flipping heck the person who first used that word in an example people keep copying, has something to answer for!  We say that all the time - do people really not know what wilfully means?!  It's not what you want to say.

And because the hearing will be remote by phone, don't say this (below) because you can't produce documents on the day at a phone hearing:

Confirmation of this will be provided at any set aside hearing, in the form of emails acknowledgement of change of address from different sources as well as attached tenancy agreements and utility bills Schedule (X). I thus was not aware of the Default Judgement until 23 September 2020 following a notification of an automated credit report update.

Instead, you will have to happen all that now with your N244, your WS & draft defence (signed and dated PDFs) and draft order (word doc so the Judge can use it)

@Coup@Coupon-mad Thank you for taking a look, I will make the recommended changes and resend the final version.
Below is the updated version:

WITNESS STATEMENT

IN THE COUNTY COURT AT READING (Claim Number – XXXX)

NAPIER PARKING LIMITED (Claimant), Ref XXXXXXXXX

And

XXXXXXXXXX (Defendant)
District Judge

WITNESS STATEMENT

I am XXXXXXXXX and I am the defendant in this matter. This is my supporting statement to my application dated 23 September 2020 requesting to:

a. Set aside the default judgment dated 14 January 2020 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. Order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee.

DEFAULT JUDGMENT

1.1. I was the registered keeper of the vehicle mentioned at the time of the alleged offence.

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 14 January 2020. I am aware that the Claimant is Napier Parking Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice from 22 September 2018 at a car park in Peterborough. I contest this charge for the reasons outlined in the attached draft defence.

1.3. I learnt of the existence of this claim on 23 September 2020 when I received an email from a credit report update subscription, as found in Schedule (X), that there was a new change in my Credit File after being refused credit.

1.4. The claim form was not served at my current address and instead was served at MY OLD ADDRESS (XXXXXXXXX) and not served at my current address at the time (XXXXXXXXXXX) where I had moved in April 2018. Confirmation of this is attached, in the form of email acknowledgement of address from different sources as well as tenancy agreements and utility bills Schedule (X). I thus was not aware of the Default Judgement until 23 September 2020 following a notification of an automated credit report update.

1.5. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant, myself Amanda, should be taken into consideration on the basis that;

1.5.1 I discovered a CCJ was lodged onto my credit file on the 23rd of September 2020.

1.5.2 On that same day the 23rd of September I contacted the County Court Business Centre to obtain relevant information relating to this default judgement and to let them know that I had not received the parking ticket, notices and other documents related to this; Schedule (X). I also sought advice from Citizens Advice bureau as this was a new experience for me and I wanted to ensure I carried out the correct steps.

1.5.3. My Driving licence and other records were updated with my new address however, I am uncertain as to whether my V5C was up-to-date with my new address when the PCN was issued (I have as a result contacted DVLA with a Subject Access Request). However, my V5C was updated to the new address I was living, by September as I had a new car and new V5C when the CCJ had been issued. I also received other correspondence relating to the vehicle that is related to this from other organisations, to my address at that time then, but not anything related to this CCJ (see evidence attached). The person I spoke to from the County Court Business Centre explained to me the process to set aside the CCJ and sent me the relevant information through email.

1.5.4 Although all my details had been changed to my address at that time, including my driving licence, I may have overlooked my V5C and was not aware (assuming change of address on Driving License will hold good for the vehicle as well). This serves as further evidence that I acted in good faith and have not attempted to avoid any debt or contact. SEE EVIDENCE X.

1.5.5 On the same day I found out about the CCJ, 23rd September 2020, I filled out the N244 form, wrote up my witness statement and submitted my case in order to set-aside this judgement and fairly present my case.

1.5.5 I have never received any previous documentation from the Claimant in this matter and I was never able to properly challenge the Claimant’s claim. Further I put the Claimant to strict proof that they did post such communications to the Defendant’s current address.

1.5.6 I have never received any correspondence and at no point prior to 23 September 2020 did I have any contact with the Claimant.

1.6. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

1.7. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that I the Defendant no longer resides. The Claimant did not take reasonable steps to ascertain the address of my current residence or place of business despite having some 16 months to establish an address, therefore having good reason to believe they did not hold my current contact details. At the time of the County Court Judgment (January 2020), driving license, V5C logbook and HMRC records were registered at my new address so I was there to be found by a simple trace. SEE EVIDENCE X. Furthermore, considering they received no response from me to their correspondence, I believe the Claimant had reasonable cause to question whether they were using an accurate address and that simple searches could have provided them with the correct address. This has led to the claim being incorrectly served to an old address and an irregular judgement. I was not afforded any method by which to appeal, nor any opportunity to get this charge cancelled, which I would have done was I aware of the charge.

1.8. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "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."

The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That 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.” Furtherance to points raised in 1.4 above.

1.9. Considering the above, I was unable to defend this claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

 2. Order dismissing the Claim

 2.1 On discovering this CCJ and after promptly contacting the County Court Business Centre on the 23rd of September 2020 to find out details of the Default Judgement, I was informed that the CCJ was related to a PCN from September 2018 in a car park in Peterborough. No further details were provided or available as informed by the advisor I spoke to.

2.2. The address on the details supposedly sent to me, as provided to me by BW Legal and County Court Business Centre, is XXXXXXXXXX. I have moved out of that address from April 2018. From April 2018 to October 2019, I have resided at XXXXXXXX then October 2019 to September 2020 to XXXXXXXXXXX. I moved to my now current address at XXXXXXXXX on the 25th September 2020 after I got married. In support of me living at the addresses, I can provide a scanned copies of my old driving licences, insurance forms, bank statements, tenancy agreements to which they were posted and pay slips. See Exhibit XX.

2.3 The Defendant understands 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.

2.4 If the Claimant has obtained details of the vehicle for which I was the Registered Keeper, and used those details to make a claim for a ‘Parking Charge Notice’, I thus 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.

2.5 The Defendant has at no time tried to avoid paying for any known debt, and was at all times there to be found by a simple trace, a phone call or email. It is submitted that the Claimant should have taken those reasonable steps, and would have known or should have surmised that it was likely that the Defendant was not at the old address, given the length of time from the alleged parking charge and the fact that the Claimant was receiving no reply from the Defendant.

I have not ever received any previous documentation from the Claimant about this matter so await full disclosure of the Penalty Charge Notice issued that I have requested via a Subject Access Request (please see EVIDENCE X).

2.6. 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.

2.7 The Defendant has never received any previous court documentation from the Claimant in this matter and was never able to properly challenge the Claimant’s claim. Furthermore, the Defendant puts the Claimant to strict proof that they did post such communications to the Defendant’s old address, which was XXX XXXXX, without ever checking if it was the right address.

2.8 The Defendant believes the Claimant has behaved unreasonably in pursuing the claim against her without ensuring they held the Defendants current and correct contact details. According to publicly available information my circumstances are far from being unique. The Claimant’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

2.9. 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 and to order the Claimant to refund the Defendant's costs for attending, namely the £255 Court fee in bringing this set aside case, despite not being shown to be liable for any parking charge at all.

The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

 

Statement of Truth:

I believe that the facts stated in this witness statement 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.

Full name: XXXXXXXXX

Signed: ______________________

Evidence enclosed:

henrik777

1.7. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that I the Defendant no longer resides.

The claimant doesn't need to perform any due diligence (yeah you probably copied from elsewhere).

The claimant obtained the address from DVLA (i assume). that's good enough,

UNLESS they have a reason to believe.

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) 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 (‘current address’).

Your job is to argue they had a reason to believe.

1505grandad

A heads up:-

"DEFAULT JUDGMENT"  -  correct spelling of "Judgment" in this context (as stated in the Consent Order posted earlier)

BUT  - you have copious instances of the word incorrectly containing a middle "e".

ngwino88

@henrik777 thank you for the clarification and thanks for your patience, I can imagine you have fed back on so many of these. I will reword that section.  
Thanks so much for your help everyone, and feedback to date. I have drafted my defense using the template from NEWBIES but have to be honest, some of the legal jargon threw me and it was tricky to know what to include or exclude as I have not received anything at all about the PCN and original claim. All I know is the date it is said to have happened - 22 September 2018 and what car park - North Street Car Park, Peterborough and that the claimant is Napier Parking Limited. It was a bit tricky adapting the defence as a result; so any guidance you can offer will be extremely help and I will then send over everything as advised

• I added to section 15, 17 and 18 but mostly kept to the original draft. Also I cannot seem to find the Approved Judgment from Southampton Court that is referred to as being appended to show why claims such as this are being summarily struck out. Is anyone able to help by providing the link, I have re-looked through the threads I read previously but can't locate it.

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 £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]. 

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

 3.       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. 

 4.       Where it is clear as a matter of law at the outset that even if a Claimant were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks, a trial of the facts would be a waste of time and money, and the Defendant submits that it is proper that this action should be taken out of court as soon as possible.

 5.       When considering the Claimant’s case to the extent that is necessary at allocation or local directions stage, the court is invited to determine as a matter of law that the Claimant is not entitled to the remedy sought.  An exaggerated claim such as this will always constitute an abuse of process that can be determined by a glance at the Particulars (before any facts and evidence are even scrutinised) and by applying the court’s duty under s71 of the Consumer Rights Act 2015 (‘the CRA’) at the earliest opportunity.  For the avoidance of doubt and to demonstrate that this claim is unfair from the outset, the official CMA Guidance on the CRA clarifies under ‘Disproportionate financial sanctions’ and ‘Indemnities against risk’

[insert link]

‘‘Other kinds of penal provisions which may be unfair are clauses saying that the business can:

· claim all its costs and expenses, not just its net costs resulting directly from the breach;

· claim both its costs and its loss of profit where this would lead to being compensated twice over for the same loss; and

· claim its legal costs on an ‘indemnity’ basis, that is all costs, not just costs reasonably incurred. The words ‘indemnity’ and ‘indemnify’ are also objectionable as legal jargon – see the section on transparency in part 2 of the guidance...’’ (p87 - 5.14.3);

 ‘‘Terms under which the trader must be ‘indemnified’ for costs which could arise through no fault of the consumer are open to comparable objections, particularly where the business could itself be at fault. The word ‘indemnify’ itself is legal jargon which, if understood at all by a consumer, is liable to be taken as a threat to pass on legal and other costs incurred without regard to reasonableness.’’ (p119 - 5.31.7).

 6.       The Claimant’s claim is entirely tainted by their ‘forum-shopping’ business model which relies on routine abuse of process and disregard for the protections in the CRA.  The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the private PCN are easily identified to be unlawful from the outset, without any need for a hearing to determine where the truth lies in terms of evidence.  The Court is, therefore, invited to strike out the claim ab initio as an abuse of process, using its case management powers pursuant to CPR 3.4 and also give serious consideration to Practice Direction 3C, as to whether the level of similar abusive (and thus, wholly without merit) claims cluttering up the courts may provide grounds for issuing an Extended Civil Restraint Order to protect consumers in future from this Claimant and to save the courts time and money.

 7.       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. 

 8.       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.

 9.       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.

10.   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) - [insert link ]:

‘‘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’’

 11.   The quantum claimed is unconscionable and the falsely added sum not there at all (or was buried in small print) on the sparsely-placed car park signs.  As such, the Defendant avers that the charge offends against Schedule 2 of the CRA, where s71(2) creates a duty on the Court to consider the fairness of a consumer contract.  The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair and the CMA Guidance linked earlier, and the Defendant invites the court to find this Claimant in breach. 

 12.   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.

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

 13.   Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a clause 'allowing' added costs/damages.  The CoP is a self-serving document, written in the parking firms’ interests.  Further, the ‘admin fee’ model was reportedly the proud invention of a member of the BPA Board, Gary Osner, owner of ZZPS and whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. 

14.   The BPA’s Mr Osner states in an article in the public domain since 2018: [insert link] ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''  The Defendant avers that it is clear that the competing ‘race to the bottom’ ATAs are sanctioning double recovery and both the BPA and the IPC/Gladstones (who had shared Directors) have engineered a veil of legitimacy to protect this industry for years.  The ATAs operate more like a cartel, not ‘regulators’ and the conflicting CoPs have failed consumers so badly that the Secretary of State is overseeing a new regulatory Code, following the enactment of the Parking (Code of Practice) Act 2019. 

In contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''  

 Pre-action protocol breach and nonsensical Particulars of Claim

 15.   In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the stylised Particulars of Claim are embarrassing and incoherent, lacking specificity re the status of the contracting parties and failing to detail any contract, conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the claim and even the exaggerated quantum has fluctuated, changing with each debt demand and/or letter of claim over the preceding months.

 Additionally, It appears that the Claimant Napier Parking Ltd has obtained details of the vehicle for which I was the Registered Keeper 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 has not complied with the requirements of the Act they cannot claim this charge against me as the Registered Keeper in any case and where said keeper is unable to identify the driver. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me as the Registered Keeper in any case.

 If the Notice to Keeper was 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. I submit that the Claimant cannot provide such evidence to prove the driver of the vehicle they claim was involved in the alleged incident.

I have not ever received any previous documentation from the Claimant about this matter so await full disclosure of the Penalty Charge Notice issued that I have requested via a Subject Access Request (please see EVIDENCE X). If the Parking Charge Notice in this matter did not include ‘Protection of Freedoms Act 2012’ wording, the Claimant cannot hold myself as the Defendant automatically liable for the alleged incident merely for being the Registered Keeper of a vehicle.

ngwino88

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.   The Particulars of Claim that are known, offer little to shed light on the alleged breach, which relates to an unremarkable date some time ago.  It is not established thus far, whether there was a single parking event, or whether the vehicle was caught by predatory ticketing and/or by using unsynchronised timings and camera evidence to suggest a contravention.  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.

The Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least all of the following information:

- Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge

- A copy of any contract it is alleged was in place (e.g. copies of signage)

- How any contract was concluded (if by performance, then copies of signage maps in place at the time)

- Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper

- Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

- If charges over and above the initial charge are being claimed, the basis on which this is being claimed

- If Interest charges are being claimed, the basis on which this is being claimed.

- Evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to an attempt at increase 'recovery' despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed).

- Show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant

- Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

 

 

 18.   It is neither admitted nor denied that on 22 September 2018 the Defendant's vehicle was parked at North Street car park in Peterborough. Due to the length of time passed since the alleged incident the Defendant is unable to accurately recall the date in question. However, when using car parks every effort has always been made to pay for parking with the Ringo app, always being the first choice and method of payment. If this car park was used the payment would have been made using Ringo and if not, this may have resulted from an error with the app not working or the pay machine not working. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car after over 16 months later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument. 2.9 Additionally, due to the length of time, the Defendant has little to no recollection of the day in question.

For the Claimant to have obliged the Defendant to provide the drivers details at the time of said breach the Claimant would be required to apply for a ‘Norwich Pharmacal Order’, the Defendant is not aware of any such order being made upon him.

Furthermore, given the time delay of approximately more than 16 months from the alleged breach of contract, it is unreasonable to expect the Defendant to have a record of who was driving the vehicle at the time of the offence.

 19.   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

 20.   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 struck out as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  Their decision was specific to that ‘unique’ set of facts: the legitimate interest argued, the car park location, and the ‘brief and clear’ signs with the parking charge itself in bold and the largest text.  The unintended consequence is that, rather than persuade courts considering other cases that all private PCNs are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and prominent signs) set a high bar that this Claimant has failed to reach.

 21.   Due to the authority set by their earlier Somerfield case - mentioned at the start of this defence - it is worth noting that ParkingEye no longer add ‘debt letter costs/damages’ to their private PCNs and their own claims have escaped any reports of being summarily struck out for abuse of process.  This Claimant has failed to plead their case or to set out their terms or construct their charges in the same way as in Beavis and the penalty rule remains firmly engaged. 

 22.   Without the Beavis case to prop it up, 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.  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.

 23.   Further, in its conduct and signage, this Claimant has failed to comply with the CoP that they are signed up for, such as it is.  Under the Consumer Protection from Unfair Trading Regulations, it is an unfair/misleading business practice to state that a Trader complies with a Code of Practice, but in reality, does not.  This Claimant’s conduct is also significantly different from the Beavis case [para 111.] where even the Supreme Court were wrongly convinced that the CoP was some sort of regulatory framework:  

“And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA.  In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.’’

 24.   A more relevant list of 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 [1956] 1 WLR 461 and

(ii) Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading examples of the ‘red hand’ rule, that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(iii) 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 other cases where parking firm Claimants and/or their legal teams 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 decision.  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.

 25.   The Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence of a chain of authority flowing from the Landowner or Lessor 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 particular Claimant (Companies House lists their company number as 06009471) to issue private PCNs or what the land enforcement boundary and start/expiry dates are/were, and whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to issue PCNs ‘on behalf of’ the landowner on an agency basis.  

 

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

26.   (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].

27.   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.

28.   Lastly, in order to make informed decisions and statements in my defence (to be updated if needed) as former keeper of the vehicle I will require copies of all paperwork and pictures of all signs at the time the PCN was issued (22 September 2018) from the claimant.

 

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: XXXX

Date: XXXXXXX

 Approved Judgment from Southampton Court is appended to show why claims such as this are being summarily struck out

 

Umkomaas

How does your draft Defence differ from the template Defence provided in the sticky near the top of the forum thread list?  We only expect to see your own version at paras 2 and 3, and if any other standard paras are changed, those highlighted as such. 

Please confirm. 

Coupon-mad

That's not the current template defence!  You needed to get it from the template defence sticky.  That is not it.

 the Penalty Charge Notice 

Nope, it was never one of them!

ngwino88

Coupon-mad said:

That's not the current template defence!  You needed to get it from the template defence sticky.  That is not it.

 the Penalty Charge Notice 

Nope, it was never one of them!

Hi all, my mistake, it seems l used the wrong template. I'll have a look and update. Thanks