DCBLegal/CCPC County Court

Coupon-mad

Your point #3 sounds like you won at POPLA in both cases.  I'd remove that, if you are merely talking about other POPLA appeals made for other PCNs.

Check for typos and errors, such as:

The defendant first recalls hearing of these offences some months letter 

4.         There is a clarity with regards to who is bringing the claim, a

This needs amending because the defence is about two car parks, not one:

6.         The signage in the car park is of a “forbidding” nature.

FineFighter

Coupon-mad said:

Your point #3 sounds like you won at POPLA in both cases.  I'd remove that, if you are merely talking about other POPLA appeals made for other PCNs.

3. The invoices in question are for two separate streets, Phoenix Avenue and East Parkside. In both of these areas, the signage is poor, not reaching the standards of visibility necessary to form a contract.

In Phoenix Avenue, there is no entrance sign, contrary to BPA code of practice 18.2. The signage here is poor and confusing, with signs from the local council and from the claimant, with no clear demarcation of who is responsible for what and no clear delineation between what is controlled by whom.

In East Parkside, there is no signage in the bay itself where the car was parked, hindering the drivers ability to see this when parked. There is a sign on entry to the bay in question, however, this is obscured by a speed limit sign placed in close proximity, as well as overgrown foliage.

Both of these locations have been challenged independently at the Parking on Private Land Appeals (PoPLA) service in January 2017 and May 2018 (PoPLA reference 1213286013 and 1210858013 respectively), both of which were upheld by PoPLA and the invoices cancelled, on the basis of signage not clearly conforming to British Parking Association (BPA) Code of Practice Section 18.1 and 18.3.

Thank you for your comments, I've gone through and corrected these grammatical errors.

Point 3 seeks to give some particulars about how poor the signage was, and citing specific problems, eg the speed limit sign in front of the claimant's sign, as well as the local authority sign (I realised I forgot to mention this so have added a paragraph in, in bold in the quote above).

I have challenged both of these locations at Popla for subsequent PCNs and for the same location. I intend to enclose these in evidence with my witness statement as I believe it shows the case has been considered independently previously (given the LBC stated they agreed to consider alternative dispute resolution) and also shows the PoPLA adjudicator agreeing regarding the problems with signage, which I thought could only strengthen my case. 

Would you still remove this?

Coupon-mad

I have challenged both of these locations at Popla for subsequent PCNs and for the same location. 

You didn't make that clear.  If you make it clear, then leave it in.

FineFighter

Coupon-mad said:

I have challenged both of these locations at Popla for subsequent PCNs and for the same location. 

You didn't make that clear.  If you make it clear, then leave it in.

Thank you. I've tried to make it more clear and have also linked it to their LBC alternate dispute resolution offer. As ever, I'm grateful for any comments you can offer.

 

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. Given these invoices were issued four years ago, the Defendant cannot recall these events nor who was driving at the time.  The defendant first recalls hearing of these offences some months later with a barrage of threatening letters from debt collection agencies threatening court action which left the defendant feeling harassed and intimidated, and wondering whether this may be a scam.

 

3.         The invoices in question are for two separate streets, Phoenix Avenue and East Parkside. In both of these areas, the signage is poor, not reaching the standards of visibility necessary to form a contract.

3.1.      In Phoenix Avenue, there is no entrance sign, contrary to BPA code of practice 18.2. There is also local authority signs next to the private parking company signs, with no differentiation in their jurisdiction or which area which body is responsible for.

3.2       In East Parkside, there is no signage in the bay itself where the car was parked, hindering the drivers ability to see this when parked. There is a sign on entry to the bay in question, however, this is obscured by a speed limit sign placed in close proximity, as well as overgrown foliage.

3.3        In the letter before claim, the claimant offers alternate dispute resolution as a means to avoiding legal action. Both of these same locations have been challenged independently at the Parking on Private Land Appeals (PoPLA) service in January 2017 and May 2018 (PoPLA reference 1213286013 and 1210858013 respectively), both of which were upheld by PoPLA and the invoice cancelled on these same grounds outlined in this defence.

 

4.         The defendant denies liability because there is a lack of clarity with regards to who is bringing the claim, and to whom the alleged contract is made, with these entities being materially different. The claimant is named as Terry Szmidt T/A Capital Car Park Control, however the signage in the area refers only to Capital Carpark Control, which is different to the trade name given above, and there is no mention of the sole trader on the signage. This clearly disadvantages the defendant in knowing with whom the alleged contract is, and calls into question the validity of any contract allegedly established.

 

 

5.         The Notice to Keeper from the Claimant was well outside the 56 days stipulated in law by the Protection of Freedom Act (2012) and fails to comply with the strict requirements of the Protection of Freedoms Act 2012, Schedule 4, including paragraph 9 (2) (h). Thus the Claimant is incapable of transferring liability to the keeper.

 

6.         The signage in both these parking areas is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.            

 

7.         The Claimant has issued  a further claim, number XXXXXXXX, against the Defendant the same date, and with substantially identical particulars, for the same cause of action, despite this being flagged by the defendant at the Letter before Claim stage of the litigation and seemingly noted in further correspondence with the Claimant’s legal counsel.

7.1        The issuing of two separate claims, by the same Claimant and for essentially the same cause of action, is an abuse of the civil litigation process. The long-established case law in Henderson -v- Henderson [1843] 67 ER 313, and more recent authorities, establishes the principle that when a matter becomes the subject of litigation, the parties are required to advance their whole case. The Court is invited to consolidate the two claims to be determined together, and to apply appropriate sanctions against the Claimant.

7.2          In Arnold v National Westminster Bank plc [1991] 3 All ER 41 the court noted that cause of action estoppel “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.”

7.3          In Henderson -v- Henderson [1843] 67 ER 313 the court noted the following:
(i) when a matter becomes subject to litigation, the parties are required to advance their whole case;
(ii) the Court will not permit the same parties to re-open the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, or error;
(iii) this bar applies to all matters, both those on which the Court determined in the original litigation and those which would have been advanced if the party in question had exercised ''reasonable diligence''.

7.4         By the Claimant's negligence or by intent, filing two claims, allowing them to continue to three separate hearings and choosing not to pay the appropriate court fee to apply for leave to consolidate them and amend the particulars into one claim, permits of no reasonable explanation.  The Court and myself have had to make preparations for two separate court hearings, causing unnecessary cost in time and money, and specifically in terms of duplicating the paperwork, intimidation and distress for me as a Litigant in Person.

7.5          By filing the first claim and failing to advance their whole case, any cause of action was immediately extinguished for any other similar fact parking charges against myself as Defendant.   The courts may estop a second/third claim where the cause of action is substantially the same.  I invite the court to vacate the second and third hearings and summarily dismiss those claims under the grounds of cause of action estoppel.  In the alternative, the Court is invited to consolidate the claims to be determined together, and to apply appropriate sanctions against the Claimant.

[END OF MY ADAPTED PARAGRAPHS BASED ON 2 & 3 FROM THE COUPON MAD TEMPLATE]

Le_Kirk

4.         The defendant denies liability because there is a lack of clarity with regards to who is bringing the claim, and to whom the alleged contract is made, with these entities being materially different.

Should it not be: -

4.         The defendant denies liability because there is a lack of clarity with regards to who is bringing the claim, and to with whom the alleged contract is made, with these entities being materially different.

In paragraph # 5 you should state how far outside the 56 days by using dates.  You can then refer to this defence point in your WS when attaching the evidence of the NTK.  

In paragraph #6 you have used "I" and it should be "the defendant".  You also have some unnumbered paragraphs.

FineFighter

Thank you for your comments. I'll make the typographical changes you mentioned. 

I've kept paragraph 5 general as there are 3 invoices on one claim and one on another, so I planned to expand on this in my witness statement. I can make these changes though as the NtK is ridiculously past the 56 days lol

With regards to paragraphs, I'm a bit confused about layout. They're all expanding on the same point, but should it be 3.1, 3.2 etc (using the example of the paragraphs in point 3)?

Le_Kirk

Use simple numbering.  The point is to be able to verbally explain the judge (who may not be in the same room as you - think telephone hearing) that you are referring to paragraph 6 rather than the second unnumbered paragraph after paragraph 6.

FineFighter

Thank you for that, I hadn't thought of the video/telephone hearing. I've added numbering as suggested, does that look about right??

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. Given these invoices were issued four years ago, the Defendant cannot recall these events nor who was driving at the time.  The defendant first recalls hearing of these offences some months later with a barrage of threatening letters from debt collection agencies threatening court action which left the defendant feeling harassed and intimidated, and wondering whether this may be a scam.

 

3.         The invoices in question are for two separate streets, Phoenix Avenue and East Parkside. In both of these areas, the signage is poor, not reaching the standards of visibility necessary to form a contract.

3.1.      In Phoenix Avenue, there is no entrance sign, contrary to BPA code of practice 18.2. There is also local authority signs next to the private parking company signs, with no differentiation in their jurisdiction or which area which body is responsible for.

3.2       In East Parkside, there is no signage in the bay itself where the car was parked, hindering the drivers ability to see this when parked. There is a sign on entry to the bay in question, however, this is obscured by a speed limit sign placed in close proximity, as well as overgrown foliage.

3.3        In the letter before claim, the claimant offers alternate dispute resolution as a means to avoiding legal action. Both of these same locations have been challenged independently at the Parking on Private Land Appeals (PoPLA) service in January 2017 and May 2018 (PoPLA reference 1213286013 and 1210858013 respectively), both of which were upheld by PoPLA and the invoice cancelled on these same grounds outlined in this defence.

 

4.         The defendant denies liability because there is a lack of clarity with regards to who is bringing the claim, and to whom the alleged contract is made, with these entities being materially different. The claimant is named as Terry Szmidt T/A Capital Car Park Control, however the signage in the area refers only to Capital Carpark Control, which is different to the trade name given above, and there is no mention of the sole trader on the signage. This clearly disadvantages the defendant in knowing with whom the alleged contract is, and calls into question the validity of any contract allegedly established.

 

 

5.         The Notice to Keeper from the Claimant was well outside the 56 days stipulated in law by the Protection of Freedom Act (2012) and fails to comply with the strict requirements of the Protection of Freedoms Act 2012, Schedule 4, including paragraph 9 (2) (h). Thus the Claimant is incapable of transferring liability to the keeper.

 

6.         The signage in both these parking areas is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et al B4GF26K6 [2016], UKPC v Masterson B6QZ4H3R [2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.            

 

7.         The Claimant has issued  a further claim, number XXXXXXXX, against the Defendant the same date, and with substantially identical particulars, for the same cause of action, despite this being flagged by the defendant at the Letter before Claim stage of the litigation and seemingly noted in further correspondence with the Claimant’s legal counsel.

7.1        The issuing of two separate claims, by the same Claimant and for essentially the same cause of action, is an abuse of the civil litigation process. The long-established case law in Henderson -v- Henderson [1843] 67 ER 313, and more recent authorities, establishes the principle that when a matter becomes the subject of litigation, the parties are required to advance their whole case. The Court is invited to consolidate the two claims to be determined together, and to apply appropriate sanctions against the Claimant.

7.2          In Arnold v National Westminster Bank plc [1991] 3 All ER 41 the court noted that cause of action estoppel “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.”

7.3          In Henderson -v- Henderson [1843] 67 ER 313 the court noted the following:
(i) when a matter becomes subject to litigation, the parties are required to advance their whole case;
(ii) the Court will not permit the same parties to re-open the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, or error;
(iii) this bar applies to all matters, both those on which the Court determined in the original litigation and those which would have been advanced if the party in question had exercised ''reasonable diligence''.

7.4         By the Claimant's negligence or by intent, filing two claims, allowing them to continue to three separate hearings and choosing not to pay the appropriate court fee to apply for leave to consolidate them and amend the particulars into one claim, permits of no reasonable explanation.  The Court and myself have had to make preparations for two separate court hearings, causing unnecessary cost in time and money, and specifically in terms of duplicating the paperwork, intimidation and distress for me as a Litigant in Person.

7.5          By filing the first claim and failing to advance their whole case, any cause of action was immediately extinguished for any other similar fact parking charges against myself as Defendant.   The courts may estop a second/third claim where the cause of action is substantially the same.  I invite the court to vacate the second and third hearings and summarily dismiss those claims under the grounds of cause of action estoppel.  In the alternative, the Court is invited to consolidate the claims to be determined together, and to apply appropriate sanctions against the Claimant.

[END OF MY ADAPTED PARAGRAPHS BASED ON 2 & 3 FROM THE COUPON MAD TEMPLATE]

1505grandad

Just checking:-

Para 6  -  ".......PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016],...."

The Court ref seems to be the same for presumably two entirely different cases.

Also -  "...Bull et all ...."  -  should be et al

Per Parking Prankster case law site:-

CS036 PCMUK v Bull et al B4GF26K6 (forbidding signage)

CS035 UKPC v Masterson B6QZ4H3R (forbidding signage)

FineFighter

Well spotted @1505grandad, thank you for drawing my attention to it. I've amended above and on my defence document. Thank you very much!

Obviously at they're two separate cases for the same places, I will be using the same defence but modifying slightly for the 2nd case (which only refers to one of the two sites and is for one parking invoice).