Draft for defence against Parallel Parking ltd (& gladstones solicitors)-please check!

KeithP

star1800 said:

KeithP said:

I think your paragraph 4 should start "The Claimant has failed to comply...".

Unless you are planning to use the latest version of the Defence template?

Either way, it is probably not a good idea to file a Defence until Monday morning now.
Too often we have seen the CCBC fail to record Defences properly when they are file outside normal working hours - leading to a Default Judgment which then needs to be unravelled.

Yes I am using the new defence template. So should I stick with the word operator? 

The word 'operator' appears only twice in the template Defence and neither in the context you are using.

I don't know where you got it from, but as I said earlier, I would use the word 'Claimant' rather than 'operator' in that situation.

star1800

KeithP said:

star1800 said:

KeithP said:

I think your paragraph 4 should start "The Claimant has failed to comply...".

Unless you are planning to use the latest version of the Defence template?

Either way, it is probably not a good idea to file a Defence until Monday morning now.
Too often we have seen the CCBC fail to record Defences properly when they are file outside normal working hours - leading to a Default Judgment which then needs to be unravelled.

Yes I am using the new defence template. So should I stick with the word operator? 

The word 'operator' appears only twice in the template Defence and neither in the context you are using.

I don't know where you got it from, but as I said earlier, I would use the word 'Claimant' rather than 'operator' in that situation.

Hi guys, a quick update. SO i received a letter from Gladstones, completed Directions questionnaire that they sent to the court. SO i received the copy. It states the 'claimant have elected to proceed with the claim' and then in last paragraph, it states the 'claimant have elected to mediate in an attempt to settle this matter amicably without need for further court intervention. Should you agree please inform court who will arrange mediation appointment'

I dont want to mediate, so do i need to reply stating that i wish not to mediate or I dont need to do anything and just wait?

thanks guys

Coupon-mad

Just wait.

KeithP

That list you were following when you filed your Defence includes...



Items 9, 10, 11 and 12 on that list are worth reading again too.

star1800

KeithP said:

That list you were following when you filed your Defence includes...



Items 9, 10, 11 and 12 on that list are worth reading again too.

Hi, maybe I’m going blind or acting dumb, but I can’t seem to find that page. Can you please post a link?? Thank you 

Coupon-mad

It's the first post of the Template Defence thread.

star1800

Coupon-mad said:

It's the first post of the Template Defence thread.

thanks i found it.

star1800

Coupon-mad said:

Just wait.

Its been two weeks since i received the copy of the claimants Directions questionnaire. Shall i still wait for mine or shall i download and send it?

KeithP

The CCBC sent you a letter, or will send you a letter, saying the Claimant had twenty eight days to consider your Defence.

What you don't know is when the CCBC sent a copy of your Defence to the Claimant. 

It follows from that that it is not known when the Claimant has to respond to the CCBC. 

Further, we don't know what delays there are in the CCBC that means they don't send you a Directions Questionnaire as promptly as you might like.

Can I suggest that you keep checking your MCOL Claim History and as soon as you see that the CCBC has sent a DQ to you, you are ready to download a DQ, complete it and fire it back to the CCBC, remembering to send a copy to the Claimant of course?

star1800

Hi, please find my WS below and please give me your feedback.

1. I am xxxxxxxx and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2. I was neither the registered keeper nor the driver of the vehicle in question and liability is denied. 

 

3. I admit to being the hirer but cannot be held liable under any rule of law, nor by presumption nor agency arguments. It is unclear how this Claimant believes it can hold me liable for the alleged breach of another driver. There is no cause of action.

4.  I provide the finance on the lease agreement for the car on behalf of a family friend.

5.  I cannot recall visiting this car park, and as I do not use this car, I have to stress the point that I cannot be held liable for this charge.

5. I have attached (exhibit 1) the insurance document of the vehicle which clearly shows another individuals name but I do not have any knowledge who was driving the car at the time of the alleged breach.

5. The claimant has failed to comply with Paragraph 14 of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). Paragraph 14.2(a) of PoFA states that in order to hold the hirer liable for the PCN, the claimant must obtain and provide to the hirer specific documents outlined in Paragraph 13.2 of PoFA. Those documents are: 13.2(a) a statement signed on behalf of the vehicle-hire firm to the effect that at the time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; (c) a copy of the statement of liability signed by the hirer under that hire agreement. No such documents were served.

6. According to Paragraph 14(2) and (3) of POFA 2012:
(2) The conditions are that —
(a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and
(c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
(3) In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.[/I]

7. The claimant was required to send this information to me within 21 days after receiving them from the lease/hire company (xxx). As this has not happened, the claimant cannot use POFA to assume keeper liability.

8. As the claimant has not complied with paragraphs 13 (2) and 14 (2) of POFA 2012, the claimant cannot rely on the provisions of the Act and hold me liable as keeper.

9. The judge in the very recent case of Excel v Lamoreux (C3DP56Q5) at Skipton held that without using POFA and with no evidence as to the identity of the driver, the claim against Mr Lamoureux was misconceived and so was dismissed.

10. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA report 2015).

11. The claimant may seek to rely on the case of Elliot v Loake and seek to persuade the court that this case created a precedent which amounts to a presumption that the registered keeper is the driver, with no evidence or admission to prove its allegations. In the Elliot v Loake case the finding that the keeper was the driver was based on the provision of forensic and other evidence, none of which has been presented here. Elliot v Loake was also a criminal case, which has no bearing on a civil matter. Two recent cases the Judges ruled Elliott v Loake as not relevant or applicable, (Excel v Mr C C8DP37F1 Stockport 31/10/2016) and (Excel v Mr B C7DP8F83 at Sheffield 14/12/2016)

 

 

Abuse of Process

12. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite indisputably knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied).  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that admin costs inflating it to £135 'would appear to be penal'.

13. This finding is underpinned by Government intervention and regulation.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

14. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued." The code of practice also stated “ to cap debt recovery fees at the existing industry level of £70’ 

15. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

16. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders.  Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis; essentially Trade Body Board member colleagues passing motorists' data around electronically to share inflated sums of money.  

17. This Claimant has not incurred any additional costs (not even for reminder letters) because the parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

19. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice.  The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'.  A clear steer for the Courts.

 

24. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'.  In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

25. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer.  In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith. 

 

26. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies.  In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." 

 

 

Conclusion

27. With the DLUHC's ban on additional costs, there is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only dismiss extortionate costs in the tiny percentage of cases that reach hearings, whilst allowing other such claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers every year, who suffer CCJs or pay inflated amounts due to intimidating tactics at pre-action stage. I believe that knowingly enhanced parking claims cause consumer harm on a grand scale and it is in the public interest that claims like this should not be allowed to continue.  I invite the court to dismiss the false 'costs' element at least, and to consider whether an appropriate sanction is to resume the policy of striking out parking claims altogether, where the POC include a vague but fixed sum in 'damages/costs'. 

28. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time.

 

 

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.