PCM Claim Form time to write a defence

Johnson2015

@KeithP
Made the following changes (section 8.2, 8.3, and statement of truth). Second draft below please can I have some feedback? N.B Still trying to locate the thorough defence on Landownership and DRA fees on the Newbie thread to cover all bases. Once located I will edit and post 3rd draft. TIA  

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 Eye distinguished.
8.3 The Particulars of Claim do not give any reasons why the Claimant requires a payment other than it results from ‘breaching the terms of parking on the land’. Signage displayed at XXXXXXXXXXXXXXX are forbidding signs that cannot create a contract. In the cases of B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W and B4GF26K2 PCM (UK) v Ms L it was demonstrated that forbidding signage at residential parking spaces did not create a contract.

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 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.

 

Defendant’s signature: xxxxxxxxxxxxxxx

Date:xxxxxxxxxxxxxxxx

Coupon-mad

You just need to go to the Template Defence sticky thread, top of the forum.

No link needed because you already have two on this page!  There's a breadcrumb trail link back to page one of the forum, top and bottom of every page you are on.  Not only does my signature tell you where the top linky is and what it looks like but the bottom link is right there in blue as a really clear link back, directly under the reply box you just used to reply.

B789

You have two paras #7. You only confuse it all by having this sub-numbering. Just number every paragraph sequentially. If you think something needs to be on a separate line without numbering, then indent it and maybe use something like i), ii), iii), iv) or a), b), c) etc.

For para #5.2.2 you clearly have a new para below it that is not numbered at all.

Johnson2015

B789 said:

You have two paras #7. You only confuse it all by having this sub-numbering. Just number every paragraph sequentially. If you think something needs to be on a separate line without numbering, then indent it and maybe use something like i), ii), iii), iv) or a), b), c) etc.

For para #5.2.2 you clearly have a new para below it that is not numbered at all.

No problem at all. Thank you for your feedback. I have literally copied and pasted from @johersh but I have yet to go through it with a fine toothed comb to check for punctuation grammar, spelling and layout. This will be my next draft. Thanks again. 

Coupon-mad

But your next draft should be based on the Template Defence.

Johnson2015

Coupon-mad said:

But your next draft should be based on the Template Defence.

Is the above not suitable as a template? I have found the landownership and DRA info I was looking for. I was just going to use the info from that thread and input into the doc above. Is that not right?!? There are so many great examples on here and I think I could get carried away with trying to cram it all into my defence. Is it not better to get all the necessary info down into a concise defence and avoid over complicating the matter with other bits and pieces. I'm worried I might annoy the DJ 🙈

Boat_to_Bolivia

Template defence here
 https://forums.moneysavingexpert.com/discussion/6108153/template-defence-to-adapt-for-all-parking-cases-where-they-add-false-admin-costs-edited-march-2022#latest


I suggest you follow CM's advice

(Apologies CM for leading a horse to water, when a pencil must be lead!..... unlike you, I'm having a !!!!!! day and needed to do something useful )

Johnson2015

Boat_to_Bolivia said:

Template defence here
 https://forums.moneysavingexpert.com/discussion/6108153/template-defence-to-adapt-for-all-parking-cases-where-they-add-false-admin-costs-edited-march-2022#latest


I suggest you follow CM's advice

No problem! Hearing you loud and clear. I will do the amendments and add everything that is within the TD thread as @Coupon-mad suggested. Heck, I've got the time so it's no bother at all. Thank you all again. I appreciate your time in giving much needed advice. 

Coupon-mad

I think it includes some irrelevant stuff; didn't we advise earlier (on the thread...maybe another similar PCM one?)  that PCM use the POFA, so the first section about whether you were driving or not has no legs.

It also misses criticising the false added DRA fee.

Having said that, this is your defence to draft, and you must feel comfortable with it, so all means be more concise than the template is, and amalgamate two defences.

Johnson2015

Yes, that was the advice, just not entirely comfortable at present doing the editing around that just yet. I'm thinking leave it in (for now) and if I have time at the end I will take it out. But right now I just want to get the salient points within the main body down first, and worry about taking out later on down the line. And Yes re the DRAs, that's the section I plan to add in the next draft as I've only just located it on here. I will amalgamate the info from the TD sticky thread re landownership and DRAs within the body of this template. It's going to take me a few more days....the clock is ticking now!