Court Claim received

leftit2long

Hi All,

I have been researching this for hours now and I I would appreciate advice on me defence statement

background:

October 2021 - Receive a Parking charge notice from JD parking solutions - ignored it.  I have it safely stored.
Some time after that - I received a letter before action that looked like the usual template threatening junk.   So I ignored it.  Oops.  I have somehow lost it.

I have now received a claim form in the post from money claims online.  It is legit.  I have acknowledged service through www.moneyclaim.gov.uk - I have mistakenly clicked the contest jurisdiction tick box which I now understand to be wrong.

I'm just trying to work out how to link pictures but I've just been called off the computer to help with kids bedtime!

below is my first attempt at a defence:

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1.       All parts of the claim are denied apart from the fact that the defendant is the registered keeper of the vehicle ***** and that the vehicle ****** was parked opposite 4 Challenge Way on the ***October 2021.

2.       The defendant would like the court to be aware that he works in IT security and regularly deals with queries around scams.  The first step of the vast majority of scams involve the scammer initiating unsolicited communication.  Since the defendant had no recollection of driving the vehicle on the date alleged and no one connected to the defendant had reason to be there on the date alleged, the defendant assumed that either:

a.       The letters were simply a scam.

b.       The letters were a result of overzealous enforcement of parking which the claimant has no right to through incompetence or wilful negligence.

c.       Neither of which justified the effort to write a formal response during an extremely busy time in the defendants life.

3.       No contract exists between the driver and the claimant

a.       A check on google maps indicates that 6 Challenge Way is 30 meters or more from where the car was parked.  Thus the defendant believes that the claim the vehicle was parked at 6 Challenge way to be inaccurate.  The PCN issued has a photograph that when comparing to google street view proves this.

b.       The signage at the car park was not clear enough to form any kind of contract.  Should the claimant have any contract to manage parking at 4 Challenge way, evidence from the photo and google street view shows that the signage was obscured by a tree on approach to the space and that the sign is too high up to be seen by a normal car entering or exiting the parking bay.

c.       The defendant invites the claimant to be clear if the alleged breach of contract occurred at 4 challenge way or 6 Challenge way and to provide evidence that the claimant is authorised to manage the parking space where the car ***** was parked on the **** October 2021

4.       The claimant has not met the requirements to bring a claim against the registered keeper under The Protection of Freedoms Act 2012

a.       The Protection of Freedoms Act 2012, Schedule 4 (POFA) clearly states that for any sum to be recoverable from the keeper, the claimant must fully comply with the statute:

b.       The notice to keeper dated ****h October 2021 was not compliant with paragraph 9 of the statute.

5.       The claimant has no standing to bring a case.

a.       There is no evidence on the claim of a contract between the landowner and the claimant in any of the correspondence so far, including in the particulars of claim.

6.       The claimant alleges a letter before action was sent.  The defendant has just found out about practice direction and notes that the so called letter before action does not direct the defendant to the practice direction, does not state how the costs were calculated and does not state which documents the claimant intends to rely on should court proceedings be initiated.  The defendant has still not seen any of the documents that the claimant intends to rely on, including in the claim form pack received by the defendant.

7.       The claimant is abusing the court system to claim money they have no entitlement to

a.       The maximum claimable is capped at £100 for private parking tickets under the private parking code of practice

b.       A spurious cost of £70 has been added to the claim with no justification.  It is not recoverable under The Protection of Freedoms Act.  It is also made clear Parking (Code of Practice) Act 2019 that the total charge is capped at £100

c.       The defendant’s position that the £70 addition to the claim is wholly a penalty clause as defined in the Consumer Rights Act 2015, further clarified in Unfair Contract Terms Guidance, CMA37, para 5.14.3 and is known by the claimant to be as such.

8.       In the matter of costs, the Defendant seeks:

a.       standard witness costs for attendance at Court, pursuant to CPR 27.14, and

b.       that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

c.       The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

go-on-then

Have you read the  Newbies  thread?

Template defence in there for you to add just a couple of paragraphs of your own.

Trainerman

Hello and welcome. I would really suggest you read the Newbies thread and have a good look in particular at the template for a defence and adapt it. Usually, it is just a couple of paragraphs to adapt, and it addresses the usual fake add ons which  you have too.

Is the NTK really not PoFA compliant? That may well give you a win if you really were not driving. Otherwise, you would surely only have to be asked in court "were you driving" to be in difficulty there

KeithP

What is the Issue Date on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Don't worry about having ticked the 'contest jurisdiction' box.
If you don't pay the associated fee - which of course you won't - it will be ignored.

leftit2long

Issue date: 23/02/22
Acknowledgement was 25/02/2022

leftit2long

Thanks for the replies everyone.  I have read the newbies thread and I wrote this draft defence after reading through that.  There is such a deluge of information there I have probably missed some good advice.  I looked at the template letter but I thought it was frowned upon sending boilerplate letters?  Also, I believe the NTK to be non PoFA compliant.  I can't see how to link photos here right now.  I'll attach when I've got it sussed.

Coupon-mad

There are two defences on page one right now where people have included in their facts, that the NTK is non POFA (useful if you were not driving).

Read a few other threads.

KeithP

leftit2long said:

Issue date: 23/02/22
Acknowledgement was 25/02/2022

With a Claim Issue Date of 23rd February, and having filed an Acknowledgment of Service on 25th February, you have until 4pm on Friday 25th March 2022 to file your Defence.

That's nearly four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

epsf

leftit2long said:

Hi All,

I have been researching this for hours now and I I would appreciate advice on me 

Hi,
New here, having received court threats for a parking fine, I was researching and stumbled across this post.
Having read through it all, I believe my fine is for the same parking space as the OP. 6 challenge way.

Leftit2long. How are you getting on and are you willing to share your latest Defence letter with me? 

Can't go down the land owner route as the firm that owns the land also owns JD Parking Solutions.

Thanks!

Coupon-mad

No need to share defence letters as everyone should use the template defence (Announcement thread at the top of the forum) plus adding in their own case facts.

Do this (link below explains) and - unlike that OP - please don't remove other stuff from the template (only replace the stuff about the Semark-Jullien case with my suggested new words and let's see what it looks like)!

https://forums.moneysavingexpert.com/discussion/comment/79021699/#Comment_79021699

It will really help me to see someone try to replace the old words about double recovery with the new, because I'd then have something to work with to edit the current template defence:

I just have't had time yet!  Somewhat busy...

The OP and you should both do the above but please don't reply here, @epsf

You need to start your own discussion showing what stage you are at and if you have a Court claim, the issue date.

Not here please.  This is the OP's thread.

leftit2long

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver gave rise to a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or to form contracts in their own name at the location.

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. 

3. The defendant would like the court to be aware that he works in IT security and regularly deals with queries around scams.  The first step of the vast majority of scams involve the scammer initiating unsolicited communication.  Since the defendant had no recollection of driving the vehicle on the date alleged and no one connected to the defendant had reason to be there on the date alleged, the defendant assumed that either:

a. The letters were simply a scam.

b. The letters were a result of overzealous enforcement of parking which the claimant has no right to through incompetence or wilful negligence.

c. Neither of which justified the effort to write a formal response during an extremely busy time in the defendants life.

4. The claimant has not met the requirements to bring a claim against the registered keeper under The Protection of Freedoms Act 2012

a. The Protection of Freedoms Act 2012, Schedule 4 (POFA) clearly states that for any sum to be recoverable from the keeper, the claimant must fully comply with the statute:

b. The notice to keeper dated 13th October 2021 was not compliant with paragraph 9 of the statute.

5. The facts in this defence come from the Defendant's own knowledge and honest belief.  The Defendant should not be criticised for using some pre-written wording from a reliable source.  The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. This Defendant signed it after full research and having read this defence several times, because the court process is outside of their life experience.  The claim was an unexpected shock.

6. With regard to template statements, the Defendant observes after researching other parking cases, that the Particulars of Claim ('POC') set out a generic and incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) was served with a Letter of Claim.  The POC is sparse on facts about the allegation, making it difficult to respond in depth at this time.  

7. 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'.

8. 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: h**ps://www.gov.uk/government/publications/private-parking-code-of-practice

9. 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." 

10. 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." 

11. 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.  

12. 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.

13. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.

14. 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.

15. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).  Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.  In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made.  Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. The learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

16. POFA and CRA breaches

17. 15. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').  If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance. 

18. 16. 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.