New County Court claim from PE

flamjam

Coupon-mad said:

I'd remove #10 and #11 and then you are pretty much there.  But yes, add this too:

should i also mention anything about the driver parking in same place for over 5years, up until the ANPR cameras were put in place(without planning permission), and the alleged breaches were all in the week following the installation of the camera

thanks for your advice again, i have removed #10 and #11, and also added the txt above in part3..
3. The driver of the vehicle admits to accessing the car park via the entrance and has been doing so for over 5years prior to the ANPR camera being installed, with all alleged offences taking place within 2 weeks of the camera being installed, however the entrance was only used to park the vehicle in question on a separate strip of private land, not within the parking enforcement boundary of the retail car park. The location of parking belongs to the property owner of the house adjacent to the car park, who has given his permission to use his land and all the driver has done, on each occasion, is drive through. This claimant's  ANPR cameras have been placed in an inappropriate place at this location, with the potential to capture drivers lawfully accessing the separate strip of land adjacent to the house.  This is what has happened in this case and the Claimant lacks any cause of action and had no lawful reason to obtain the registered keeper's data from the DVLA.

flamjam

this is where im at now

1. The Defendant is the registered keeper of the vehicle in question The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at Home Bargains car park between the dates of 26/11/2019 and 02/12/2019. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notices ('PCN')'. for the lawful conduct described below.

2. The allegation appears to be that the driver has overstayed the max period of free parking based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the driver staying on the car park for the alleged amount of time.

 

3. The driver of the vehicle admits to accessing the car park via the entrance and has been doing so for over 5years prior to the ANPR camera being installed, with all alleged offences taking place within 2 weeks of the camera being installed, however the entrance was only used to park the vehicle in question on a separate strip of private land, not within the parking enforcement boundary of the retail car park. The location of parking belongs to the property owner of the house adjacent to the car park, who has given his permission to use his land and all the driver has done, on each occasion, is drive through. This claimant's  ANPR cameras have been placed in an inappropriate place at this location, with the potential to capture drivers lawfully accessing the separate strip of land adjacent to the house.  This is what has happened in this case and the Claimant lacks any cause of action and had no lawful reason to obtain the registered keeper's data from the DVLA.

4. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

5. The Defendant is aware that the Claimant relies on ParkingEye v Beavis. The Defendant submits that the present case can be distinguished for two reasons
• It was established that ParkingEye paid a premium of £1000 per week to operate at the site. This was ruled to give them standing as Principal. In the present case they are acting as an contractor to the land-owner
• In the Beavis case there was also a clear chain of command between the land-owner and ParkingEye established by the production of original copies of the contracts

​If the Claimant wishes to rely on Beavis, the Defendant is put to proof that such a ​contract exists and of its content.

Also the Claimant has claimed that “ParkingEye v Beavis” confirms that any amount will be recoverable provided it is proportionate to a legitimate interest” which is not true. The Beavis case found that the sum of £85 in that case alone, with the particular signage and adequate notice in that case, was not a penalty.

6. The signage at the entrance are of a poor visible quality and state that the Car Park was for Post Office and Home Bargains customers ONLY, as the driver didn’t shop at either of these premises, no contract can be formed, the signs were also placed so high creating an illegible condition to read the terms and conditions required to enter a contract. The signs do not comply with BPA Code of Practice.

7. Such is the density and complexity of the text on the sign that the most onerous term – the parking charge – is buried amongst a mass of small print and does not comply with Denning MR’s “Red Hand Rule

8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons

 

Due to any combination of the above points, the Claimant has no case and the Defendant invites the Court to strike the matter out.

9. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.



Denial of contract and denial of any breach, or liability

10. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

11. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

No standing or authority to form contracts and/or litigate

12. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation against patrons of the car park


No 'legitimate interest' or commercial justification - Beavis is distinguished



13. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

14. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which have not actually been incurred by the Claimant.

15. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.



16. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.

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.

Name

Signature

Date

Coupon-mad

Remembering this is a ParkingEye defence you have covered the bases.  I would add into #2 whether the D was the driver or not.  A more honest defence stance and you are required to deal with (admit or deny) every allegation in the Particulars.

flamjam

Coupon-mad said:

Remembering this is a ParkingEye defence you have covered the bases.  I would add into #2 whether the D was the driver or not.  A more honest defence stance and you are required to deal with (admit or deny) every allegation in the Particulars.

Thanks for your reply again. I have amended #2 as follows..
2. The allegation appears to be that the defendant, who has acknowledged responsibility as the driver, has overstayed the max period of free parking based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the driver staying on the car park for the alleged amount of time.

Would you recommend changing the start of #3 from “the driver” to the defendant? 

Thanks 

Coupon-mad

Would you recommend changing the start of #3 from “the driver” to the defendant? 

Yes I would in this case. There are plenty of cases where it's not a good idea to say who was driving, but this isn't one.

flamjam

ok so this is looking like my final draft, any final adjustments before i change all font etc and print, sign and email

Background


1. The Defendant is the registered keeper of the vehicle in question The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at Home Bargains car park between the dates of 26/11/2019 and 02/12/2019. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notices ('PCN')'. for the lawful conduct described below.

2. The allegation appears to be that the defendant, who has acknowledged responsibility as the driver, has overstayed the max period of free parking based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the driver staying on the car park for the alleged amount of time.

 

3. The defendant admits to accessing the car park via the entrance and has been doing so for over 5years prior to the ANPR camera being installed, with all alleged offences taking place within 2 weeks of the camera being installed, however the entrance was only used to park the vehicle in question on a separate strip of private land, not within the parking enforcement boundary of the retail car park. The location of parking belongs to the property owner of the house adjacent to the car park, who has given his permission to use his land and all the driver has done, on each occasion, is drive through. This claimant's  ANPR cameras have been placed in an inappropriate place at this location, with the potential to capture drivers lawfully accessing the separate strip of land adjacent to the house.  This is what has happened in this case and the Claimant lacks any cause of action and had no lawful reason to obtain the registered keeper's data from the DVLA.

4. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

5. The Defendant is aware that the Claimant relies on ParkingEye v Beavis. The Defendant submits that the present case can be distinguished for two reasons
• It was established that ParkingEye paid a premium of £1000 per week to operate at the site. This was ruled to give them standing as Principal. In the present case they are acting as an contractor to the land-owner
• In the Beavis case there was also a clear chain of command between the land-owner and ParkingEye established by the production of original copies of the contracts

​If the Claimant wishes to rely on Beavis, the Defendant is put to proof that such a ​contract exists and of its content.

Also the Claimant has claimed that “ParkingEye v Beavis” confirms that any amount will be recoverable provided it is proportionate to a legitimate interest” which is not true. The Beavis case found that the sum of £85 in that case alone, with the particular signage and adequate notice in that case, was not a penalty.

6. The signage at the entrance are of a poor visible quality and state that the Car Park was for Post Office and Home Bargains customers ONLY, as the driver didn’t shop at either of these premises, no contract can be formed, the signs were also placed so high creating an illegible condition to read the terms and conditions required to enter a contract. The signs do not comply with BPA Code of Practice.

7. Such is the density and complexity of the text on the sign that the most onerous term – the parking charge – is buried amongst a mass of small print and does not comply with Denning MR’s “Red Hand Rule

8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons

 

Due to any combination of the above points, the Claimant has no case and the Defendant invites the Court to strike the matter out.

9. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.



Denial of contract and denial of any breach, or liability

10. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

11. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

No standing or authority to form contracts and/or litigate

12. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation against patrons of the car park


No 'legitimate interest' or commercial justification - Beavis is distinguished



13. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

14. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which have not actually been incurred by the Claimant.

15. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.



16. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.

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.

Name

Signature

Date

Coupon-mad

I would add here, to point the way ahead to the next paragraph:
2. The allegation appears to be that the defendant, who has acknowledged responsibility as the driver, has overstayed the max period of free parking based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the driver staying on the car park for the alleged amount of time.  The crux of the defence is that, as a matter of fact, the driver neither stayed nor parked in the retail car park.

flamjam

Thanks again.. I have added that final part.. All ready to be printed and signed etc now??

Background


1. The Defendant is the registered keeper of the vehicle in question The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parking at Home Bargains car park between the dates of 26/11/2019 and 02/12/2019. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notices ('PCN')'. for the lawful conduct described below.

2. The allegation appears to be that the defendant, who has acknowledged responsibility as the driver, has overstayed the max period of free parking based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the driver staying on the car park for the alleged amount of time.  The crux of the defence is that, as a matter of fact, the driver neither stayed nor parked in the retail car park.

 

3. The defendant admits to accessing the car park via the entrance and has been doing so for over 5years prior to the ANPR camera being installed, with all alleged offences taking place within 2 weeks of the camera being installed, however the entrance was only used to park the vehicle in question on a separate strip of private land, not within the parking enforcement boundary of the retail car park. The location of parking belongs to the property owner of the house adjacent to the car park, who has given his permission to use his land and all the driver has done, on each occasion, is drive through. This claimant's  ANPR cameras have been placed in an inappropriate place at this location, with the potential to capture drivers lawfully accessing the separate strip of land adjacent to the house.  This is what has happened in this case and the Claimant lacks any cause of action and had no lawful reason to obtain the registered keeper's data from the DVLA.

4. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

5. The Defendant is aware that the Claimant relies on ParkingEye v Beavis. The Defendant submits that the present case can be distinguished for two reasons
• It was established that ParkingEye paid a premium of £1000 per week to operate at the site. This was ruled to give them standing as Principal. In the present case they are acting as an contractor to the land-owner
• In the Beavis case there was also a clear chain of command between the land-owner and ParkingEye established by the production of original copies of the contracts

​If the Claimant wishes to rely on Beavis, the Defendant is put to proof that such a ​contract exists and of its content.

Also the Claimant has claimed that “ParkingEye v Beavis” confirms that any amount will be recoverable provided it is proportionate to a legitimate interest” which is not true. The Beavis case found that the sum of £85 in that case alone, with the particular signage and adequate notice in that case, was not a penalty.

6. The signage at the entrance are of a poor visible quality and state that the Car Park was for Post Office and Home Bargains customers ONLY, as the driver didn’t shop at either of these premises, no contract can be formed, the signs were also placed so high creating an illegible condition to read the terms and conditions required to enter a contract. The signs do not comply with BPA Code of Practice.

7. Such is the density and complexity of the text on the sign that the most onerous term – the parking charge – is buried amongst a mass of small print and does not comply with Denning MR’s “Red Hand Rule

8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons

 

Due to any combination of the above points, the Claimant has no case and the Defendant invites the Court to strike the matter out.

9. The Defendant avers that the claim was premature and the Claimant is put to strict proof of the letters they say were sent and where they were posted to, after the PCN itself, and evidence from their case status data that a Letter before Claim and attachments required under the Protocol, were issued, and when/where they were sent.



Denial of contract and denial of any breach, or liability

10. Due to the sparseness of the POC it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

11. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

No standing or authority to form contracts and/or litigate

12. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation against patrons of the car park


No 'legitimate interest' or commercial justification - Beavis is distinguished



13. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

14. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which have not actually been incurred by the Claimant.

15. Whilst £50 may be recoverable in an instance where a claimant has used a legal firm to prepare a claim, ParkingEye Ltd have not expended any such sum in this case. This Claimant has a Legal Team with salaried in-house Solicitors and it files hundreds of similar 'cut & paste' robo-claims per month, not incurring any legal cost per case. The Defendant puts the Claimant to strict proof to the contrary, given the fact that their in-house Solicitors cannot possibly be believed to be paid in the millions per annum for their services.



16. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.

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.

Name

Signature

Date

Coupon-mad

This doesn't make grammatical sense:

4. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

flamjam

Coupon-mad said:

This doesn't make grammatical sense:

4. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

thanks again, i've tried to re-word it, is this better:
4. The defendant is of the belief that there is no chain of contracts showing authorisation stemming from the lawful owner of the land, therefore the defendant believes the claimant  does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.