highview parking ltd

Dob6969

Hi
On following advice written on your page I have sent my defence to 'County Court Business Centre' and have now received the DCB legal ltd letter saying they are proceeding with the claim. A copy of the directions questionnaire has been sent to myself.
What happens next and what do you expect will happen next?

Coupon-mad

What to expect is:

- Exactly what the 12 first steps of the Template Defence thread set out,

- followed by the info that the NEWBIES thread sets out under the red heading in capitals 'IMPORTANT KNOW WHAT HAPPENS WHEN'.

Dob6969

The thing is it wasn’t me who was driving and the photo clearly shows it wasn’t me although no face is shown. 

It was a female although this was five years ago!
Do they normally win or does the court throw these out 

Dob6969

Or in some posts they give up 

Fruitcake

If Highview don't know who was driving, and the NTK received by the Keeper was non-PoFA compliant, and they don't know the identity of the driver, then the keeper should win because they cannot be liable for the charge, but nobody can predict what is in the mind of a judge.

It would be helpful if you could give us some more background.

What happened when you complained to the landowner?
Have you complained to your MP?
When and where did the alleged event occur?
Was the NTK PoFA compliant?
Does the claimant know the identity of the driver?
What did you put in your defence?
Have you sent an SAR to the DPO of the claimant?
Are you following the guide to court written by bargepole that you will find in the second post of the NEWBIES Announcement?

Acronyms and abbreviations common to this forum can be found in the fifth post of the NEWBIES.

Coupon-mad

Dob6969 said:

The thing is it wasn’t me who was driving and the photo clearly shows it wasn’t me although no face is shown. 

It was a female

Did you include that in your defence?  Plus the fact that Highview don't use the POFA para 9 wording (at all, never have)?

Dob6969

What happened when you complained to the landowner? it was a Morrisons carpark not owned by Morrisons they would tell me who the landowner was.
Have you complained to your MP?no
When and where did the alleged event occur? 5 years ago
Was the NTK PoFA compliant? not sure will check
Does the claimant know the identity of the driver? no doesn't know
What did you put in your defence? I have a copy and said the photo doesn't show who was driving
Have you sent an SAR to the DPO of the claimant? no
Are you following the guide to court written by bargepole that you will find in the second post of the NEWBIES Announcement? yes am following the guide

Did you include that in your defence?  Plus the fact that Highview don't use the POFA para 9 wording (at all, never have)?

yes put it in my defence as it didn't show the face of who was driving 

Dob6969

just looking at the acronyms

Coupon-mad

Ok.  Can you show is your defence, word for word, so we know what you can build on at WS and evidence stage?

Dob6969

Statement of Defence

1.
The claim is defended for the following reasons:

a. The Claimant has no standing to bring a case
b. The Claimant has no capacity to form a contract with the Defendant
c. The signage does not offer a contract with the Defendant
d. The Claimant provided no service to the Defendant
e. The Claimant’s practices do not comply with current Practice Direction
f. Even if a contract could be formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations

2.The Claimant does not own the car park and nor does he have any other interest in it and therefore lacks capacity to offer parking. Nor did the Claimant provide any service to the Defendant. The Defendant requests the Claimant to produce evidence of standing by way of a deed, lease or contract.

3.If the Court determines that the Claimant does have the standing to bring a case, the Defendant disputes that the signs displayed at the carpark make a genuine contractual offer. In any event as a unilateral offer these signs cannot be seen to constitute a representation of a meeting of minds. There was no genuine offer and the Claimant provided no consideration. The elements of a contract are absent and the Claimant has no case.

4.Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive :
With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.

5.In purchasing the alleged debt, the Claimant has done nothing but “wantonly and officiously” intermeddled in the dispute of another, having had no prior interest in the debt. This “savours of maintenance” and the court is asked to refer to the reaffirmation given to the matter of maintenance by Moore-Bick LJ in the case of Simpson –v- Norfolk & Norwich University Hospital NHS Trust (2011) AC 1149 and as found by the Deputy District Judge in the case of MIL Collections Ltd -v- Bowker heard at Oldham County Court on 15 January 2016 (Case number B1QZ7N32).

6.The Claimant has not explained what authority it has to bring the claim. The reference below is a relatively important point because if JAS lack standing to issue parking charges or to issue proceedings in their own name, then the Claimant also lacks standing. The Claimant cannot create standing out of assigned debt if their assignor did not have any in the first place.
The Defendant therefore will not accept the Claimant’s assertion and requests “strict proof” by producing evidence of standing by way of a deed, lease or contract.

ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land; it followed that the Claimant, acting as an agent, had no locus standing to bring court proceedings in its own name.
Reference to the contradiction between Clause 3.7, where the landowner appoints ParkingEye as their agent, and Clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land.
ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings.

The Claimant does not have the right to bring the case in their own name.1SE09849, VCS v Ibbotson, Scunthorpe County Court, 16/5/2012. District Judge McIlwaine (page 10, line 16, to page 14, line 31) strikes out the case as the claimant does not have the right to bring the case in their own name, and also considers whether the offices of the company are in contempt of court for bringing the case


7.The charge must be shown not to be “excessive or unconscionable.” A comparison with the penalty charges imposed by Manchester City Council shows that their charge for a comparable situation is £50 reduced to £25 if paid within 14 days. One might therefore argue that the charge of £140 is “excessive and unconscionable”. With the current amount claimed of £189.62 further arguing it is “excessive and unconscionable”.

8.The Defendant has the reasonable belief that the Claimant has attempted to claim an expense that was not incurred. Specifically, the administrative and collection fee in the £140 has been inflated as such the amount claimed of £189.62. The agent advertises its charges as “no collection, no fee”. The Claimant did not therefore incur the additional charge. Also the interest rate associated with these costs did not incur any of these charges.

9.The Defendant invites the Court to strike out the claim as having no prospect of success. Alternatively, the Defendant requests the Court to order the Claimant to provide Further and Better Particulars of Claim, the same to include evidence that the Claimant has the legal standing to bring the Claim.

 

10Further to this, No clear evidence of Defendant shown driving said vehicle so unsure who was actually driving. Thus the defendant invites the court to strike out the claim.

 

11.Parking time is reduced on match days to 90 minutes which makes it extremely hard to complete your shopping, normal time is only 2 hours which still is extremely difficult and unreasonable to complete, thus making this charge excessive.

 

12. Being in the carpark is not the same as being parked! Due to congestion associated with the carpark this further reduces the time allocated for parking, thus time taken to taken to leave the carpark is very much reduced. I invite court to strike out the claim.
I believe the facts stated in this defence are true.

 

 

 

Coupon-mad

Ok, some good stuff hidden in there (thankfully) but that's a more than seven year old version!  Well out of date and superseded by the Beavis case and Consumer Rights Act in 2015, which replaced the old Unfair Terms in Consumer Contract Regulations.