PCM Claim Form time to write a defence

Johnson2015

B789 said:

Johnson2015 said:

Long shot.... But is it worth asking my Landlord to advocate on my behalf or have we passed this point?? As I say I don't mind going to CC its just hassle in terms of finding a babysitter. 

Is your Landlord an advocate... solicitor/lawyer??? Unless they are one of those, which I doubt based on what you've written, you will have to do the leg work.  Pay a babysitter or pay a scammer?

Baby sitter gets my cash all day long! 

Johnson2015

KeithP said:

Johnson2015 said:

Issue date on my claim form is 8th March. 

With a Claim Issue Date of 8th March, you have until Monday 27th March to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 
HM Courts Service can be advised of your name and address change during the process of filing an Acknowledgment of Service.

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 11th April 2023 to file your Defence.

That's 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 again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service guidance.

Don't miss the deadline for filing an Acknowledgment of Service, nor that 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'.

Submitted my AOS last week, currently editing my defence using the skeleton provided kindly in the newbie thread. Please can I have some feedback on the following;

IN THE COUNTY COURT

Claim No: XXXXXXXXXXX

Between

PARKING CONTROL MANAGEMENT (UK) Ltd

(Claimant)

-and-

XXXXXXXXXXXXXX

(Defendant)

____________________

DEFENCE

 

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
3. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark XXXXX which is the subject of these proceedings. The vehicle was insured with xxxxxxxxxx with xxx named drivers permitted to use it.

4. It is admitted that on xxxxxxx the Defendant's vehicle was parked at xxxxxxxx

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and tenant of XXXXXXXXXXXXXXXXXXXXX, whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Defence - Failure to set out clearly parking terms
8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with Parking Control Management distinguished.

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

10. It is denied that the Claimant has any entitlement to the sums sought.

11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

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.

 

Defendant’s signature: xxxxxxxxxxxxxxx

Date:xxxxxxxxxxxxxxxx

P.S

1.the vehicle was not parked in a lettered residential bay, but in a visitor bay. Do I need to include this minor detail in my defence? 2. Last time I went to CC with PCM I won the case on the "forbidding signage" aspect, can I include this? And if so, where would it sit within the body of the text? Is there anything else that would be pertinent to add at this stage?

TIA

Coupon-mad

Yes you can add forbidding signage in that 'alternative defence' section. It's a good defence and I recognise it was written by @Johnersh.

But is it true that you were not driving?  Sounds a but odd to deny being the driver then say "The Claimant is put to strict proof" (sounds like you might have been).

ALSO, PCM normally do comply with the POFA, so I would not suggest hanging your hat on 'no keeper liability' unless you know that (unusually if so) PCM didn't comply,..?

Also you haven't used any of the Template Defence in the sticky thread of that name.  That means you are not (in this concise draft) challenging 'lack of landowner authority' and are not challenging the added false damages/DRA fees either.

We expect to see the Template Defence or a chunk of it used, so you cover all the bases.


EDIT:  

Just noticed the final phrase to this paragraph, which makes no sense at all (it's ParkingEye v Beavis that is distinguished - you don't change it!):

8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with Parking Control Management distinguished.

KeithP

You have shown us a Defence, but your Statement of Truth starts...
"I believe that the facts stated in this witness statement are true".

Johnson2015

Coupon-mad said:

Yes you can add forbidding signage in that 'alternative defence' section. It's a good defence and I recognise it was written by @Johnersh.

But is it true that you were not driving?  Sounds a but odd to deny being the driver then say "The Claimant is put to strict proof" (sounds like you might have been).

ALSO, PCM normally do comply with the POFA, so I would not suggest hanging your hat on 'no keeper liability' unless you know that (unusually if so) PCM didn't comply,..?

Also you haven't used any of the Template Defence in the sticky thread of that name.  That means you are not (in this concise draft) challenging 'lack of landowner authority' and are not challenging the added false damages/DRA fees either.

We expect to see the Template Defence or a chunk of it used, so you cover all the bases.


EDIT:  

Just noticed the final phrase to this paragraph, which makes no sense at all (it's ParkingEye v Beavis that is distinguished - you don't change it!):

8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with Parking Control Management distinguished.

Thank you for your contributions. 

I admittedly had no clue what that last sentence was talking about. I just assumed I would need to amend. But thank you for pointing that error out.

No the vehicle in question was my other half's work vehicle, and I had not driven it in a very long time. Shall I just remove that last bit, as you say, I literally have taken it from @johersh.

The compliance bit about POFA shall I omit that? I'm sure it's worth having...cover all bases as you say. 

And yes, you're right, I did see that mentioned somewhere r.e the above aforementioned challenge to 'lack of landownership authority' and false damages/ DRA fees, could I please ask that you post a link here?


TIA

Johnson2015

KeithP said:

You have shown us a Defence, but your Statement of Truth starts...
"I believe that the facts stated in this witness statement are true".

I shall rewrite as, "The facts stated in this witness statement are true..... "

Thanks for your eagle eyes! 

KeithP

Johnson2015 said:

KeithP said:

You have shown us a Defence, but your Statement of Truth starts...
"I believe that the facts stated in this witness statement are true".

I shall rewrite as, "The facts stated in this witness statement are true..... "

Thanks for your eagle eyes! 

No, don't do that. 
Please read again what you have written.  
It's a Defence and for some inexplicable reason you are now proposing to remove the words "I believe that...".

Coupon-mad

Just use the Template Defence, edit para 2 if you were driving, and add some facts as paragraph 3.

Johnson2015

KeithP said:

Johnson2015 said:

KeithP said:

You have shown us a Defence, but your Statement of Truth starts...
"I believe that the facts stated in this witness statement are true".

I shall rewrite as, "The facts stated in this witness statement are true..... "

Thanks for your eagle eyes! 

No, don't do that. 
Please read again what you have written.  
It's a Defence and for some inexplicable reason you are now proposing to remove the words "I believe that...".

Sorry, late nights with baby catching up with me.... . It's not a witness statement. I shall change it to defence. 😬

Johnson2015

Coupon-mad said:

Just use the Template Defence, edit para 2 if you were driving, and add some facts as paragraph 3.

Thank you for you're timely feedback I have added the forbidding signage and I have added facts to para 3. Please could I ask that you put a link here re the template defence on landownership and DRA fees. I have been trawling on the newbie thread and cannot seem to locate it. 

TIA