CP PLUS claim form

KeithP

It is over three weeks since I wrote on your thread...

...you have until Wednesday 21st June to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

You haven't said, but did you file an Acknowledgment of Service within that timescale?

It also looks like you decided to ignore my suggestion...

Plenty of time to produce a Defence, but please don't leave it to the last minute.

Show us the opening paragraphs of your proposed Defence when you are ready.

Jojo2234

Hi.
Yes I submitted the Acknowledgment of Service on 18/06, says they've received it on 19/06.

Umkomaas - On the first NtK on the back it says "Data protection act Your information is confidental and is subject to the data protection act" and it is BPA does it mean  it it PoFA-compliant,surely they must follow rely on PoFa if they follow BPA ?

This is my brief defence.

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. There were multiple possible drivers on an otherwise unremarkable date. The Defendant cannot recall who the driver was.

 3. The driver is accused to have entered a contract with the Claimant and in turn, overstayed their time “permitted” within a free of charge carpark. In addition to this, The Claimant has failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the Act. The Claimant cannot, therefore, transfer liability for the alleged charge from the driver at the time to the defendant the keeper. 

Where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in PoFA, Claimant has included a clear falsehood in their POC which were signed under a statement of truth by the Claimant's legal representative who should know (as the Claimant undoubtedly does) that it is untrue to state that the Defendant is 'liable as keeper'.  This can never be the case with a CP Plus Limited claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition.  Not only does the POC include this misleading untruth, but the Claimant has also added an sum of £170 in false 'damages' to enhance the claims.  So sparse is their statement of case, that the Claimant has failed to even state any facts about the alleged breach or the amount of the parking charge that was on the signage, because it cannot have been over £100. Which then leads to the question, how does the Claimant arrive at the Amount Claimed for a Total of £311.11.The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point. 

The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (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 the operators should never suggest anything of the sort” (POPLA report 2015)

Coupon-mad

I'd remove this (below) because the POC don't accuse the driver of anything specific & this reads as if you admit overstay (don't even mention it):

"The driver is accused to have entered a contract with the Claimant and in turn, overstayed their time “permitted” within a free of charge carpark. In addition to this,"

Instead say something about what sort of car park it is (MOTO Services) and that the driver would have been a patron of the services and given where it is on a Motorway, would almost certainly have visited the petrol station and rested.  Filling up a vehicle with petrol/water/air is not part of any period of parking, and there is no evidence that any breach occurred.

Jojo2234

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. There were multiple possible drivers on an otherwise unremarkable date that has occurred more than five years ago. The Defendant cannot recall who the driver was.

 3. The defendant knows the Moto services very well as he lives locally, and visits the motorway services regulary.The driver would have been a patron of the services , would almost certainly have visited the petrol station. Filling up a vehicle with petrol/water/air is not part of any period of parking, and there is no evidence that any breach occurred, there are also no photo captures of the driver using the MOTO's car park, only entering and exiting the motorway services therefore, it is also possible the driver used the petrol station where he stayed and the petrol station (BP) has allocated bays for customers, where the defendant is not aware there are any time limits. 

I addition, the Claimant has failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the Act. The Claimant cannot, therefore, transfer liability for the alleged charge from the driver at the time to the defendant the keeper. 

Where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in PoFA, Claimant has included a clear falsehood in their POC which were signed under a statement of truth by the Claimant's legal representative who should know (as the Claimant undoubtedly does) that it is untrue to state that the Defendant is 'liable as keeper'.  This can never be the case with a CP Plus Limited claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition.  Not only does the POC include this misleading untruth, but the Claimant has also added an sum of £170 in false 'damages' to enhance the claims.  So sparse is their statement of case, that the Claimant has failed to even state any facts about the alleged breach or the amount of the parking charge that was on the signage, because it cannot have been over £100. Which then leads to the question, how does the Claimant arrive at the Amount Claimed for a Total of £311.11.The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point. 

The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (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 the operators should never suggest anything of the sort” (POPLA report 2015)

Umkomaas

Umkomaas - On the first NtK on the back it says "Data protection act Your information is confidental and is subject to the data protection act" and it is BPA does it mean  it it PoFA-compliant,surely they must follow rely on PoFa if they follow BPA ?

PoFA has nothing to do with the Data Protection Act, and 'following the BPA' doesn't require the PPC to issue PoFA-compliant parking charges. If their PCN is not PoFA-compliant, they cannot legally transfer liability to the registered keeper (RK), which is why it is important in such cases, where the RK was provably not the driver, not to reveal the identity of the driver. 

Jojo2234

How do I check is the NtK PoFa-compliant? 

Coupon-mad

Jojo2234 said:

How do I check is the NtK PoFa-compliant? 

Look at the front, to see if the keeper liability words from 9(2)f are there.  Probably not?

Also EDIT YOUR FIRST POST HERE which seems to say who was driving, and remove this line (below) and remove 'he' when talking about the driver.

 "and visits the motorway services regulary"

Jojo2234

All it Says is this:

" the driver of this vehicle is required to pay this parking charge in full within the time frame stipulated above. As we don't know the driver's name or current postal address, if you were not the driver at the time, you should provide us with the name and current postal address of the driver and pass the notice to them. If the vehicle has been hired, please provide a signed statement confirming the hirer's name and address and include a copy of both hire agreement and their statement of liability. "

 3. The defendant knows the MOTO services very well as the defendant lives locally and close to the services.The driver would have been a patron of the services , would almost certainly have visited the petrol station. Filling up a vehicle with petrol/water/air is not part of any period of parking, and there is no evidence that any breach occurred, there are also no photo captures of the driver using the MOTO's car park, only entering and exiting the motorway services therefore, it is also possible the driver used the petrol station where stayed and the petrol station (BP) has allocated bays for customers, where the defendant is not aware there are any time limits. 

I addition, the Claimant has failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the Act. The Claimant cannot, therefore, transfer liability for the alleged charge from the driver at the time to the defendant the keeper. 

Where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in PoFA, Claimant has included a clear falsehood in their POC which were signed under a statement of truth by the Claimant's legal representative who should know (as the Claimant undoubtedly does) that it is untrue to state that the Defendant is 'liable as keeper'.  This can never be the case with a CP Plus Limited claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition.  Not only does the POC include this misleading untruth, but the Claimant has also added an sum of £170 in false 'damages' to enhance the claims.  So sparse is their statement of case, that the Claimant has failed to even state any facts about the alleged breach or the amount of the parking charge that was on the signage, because it cannot have been over £100. Which then leads to the question, how does the Claimant arrive at the Amount Claimed for a Total of £311.11.The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point. 

The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (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 the operators should never suggest anything of the sort” (POPLA report 2015)

Coupon-mad

That looks fine as long as you are then adding the extra paras 5-11 (re-number them) nicked from the defence by @Johny86 and then (re-numbered again) the rest of the Template Defence.

No idea if the NTK is POFA compliant or not as you didn't show a photo

Jojo2234

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to driver now)                        

 (Defendant)

_________________

DEFENCE

1.  1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. 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 was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. There were multiple possible drivers on an otherwise unremarkable date that has occurred more than five years ago. The Defendant cannot recall who the driver was.

3. The defendant knows the MOTO services very well as the defendant lives locally and close to the services. The driver would have been a patron of the services , would almost certainly have visited the petrol station. Filling up a vehicle with petrol/water/air is not part of any period of parking, and there is no evidence that any breach occurred, there are also no photo captures of the driver using the MOTO's car park, only entering and exiting the motorway services therefore, it is also possible the driver used the petrol station where stayed and the petrol station (BP) has allocated bays for customers, where the defendant is not aware there are any time limits. 

4. The Claimant has failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the Act. The Claimant cannot, therefore, transfer liability for the alleged charge from the driver at the time to the defendant the keeper. 

Where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in PoFA, Claimant has included a clear falsehood in their POC which were signed under a statement of truth by the Claimant's legal representative who should know (as the Claimant undoubtedly does) that it is untrue to state that the Defendant is 'liable as keeper'.  This can never be the case with a CP Plus Limited claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition.  Not only does the POC include this misleading untruth, but the Claimant has also added an sum of £170 in false 'damages' to enhance the claims.  So sparse is their statement of case, that the Claimant has failed to even state any facts about the alleged breach or the amount of the parking charge that was on the signage, because it cannot have been over £100. Which then leads to the question, how does the Claimant arrive at the Amount Claimed for a Total of £312.36.The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point. 

The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (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 the operators should never suggest anything of the sort” (POPLA report 2015)

5. The Particulars of Claim ('POC') appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action”. 

6. The Defendant is unable, on the basis of the POC, to understand with certainty what case is being pursued. 

7. The POC are entirely inadequate, in that they fail to particularise (a) the contractual term(s) relied upon; (b) the specifics of any alleged breach of contract; and (c) how the purported and unspecified 'damages' arose and the breakdown of the exaggerated quantum. 

8. The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and requires proper particularisation in a detailed document within 14 days, per 16PD.3 

9. The guidance for completing Money Claims Online confirms this and clearly states: "If you do not have enough space to explain your claim online and you need to serve extra, more detailed particulars on the defendant, tick the box that appears after the statement 'you may also send detailed particulars direct to the defendant.'" 

10. No further particulars have been filed and to the Defendant's knowledge, no application asking the court service for more time to serve and/or relief from sanctions has been filed either. 

11. In view of it having been entirely within the Claimant's Solicitors' gift to properly plead the claim at the outset and the claim being for a sum, well within the small claims limit, such that the Defendant considers it disproportionate and at odds with the overriding objective (in the context of a failure by the Claimant to properly comply with rules and practice directions) for a Judge to throw the erring Claimant a lifeline by ordering further particulars (to which a further defence might be filed, followed by further referral to a Judge for directions and allocation) the court is respectfully invited to strike this claim out. 

12. The driver did not agree to pay a parking charge, let alone these unknown costs, which were not quantified in prominent text on signage.

13. 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 which it is hoped overrides mistakes made in a few appeal cases that the parking industry desperately rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).

14.  Far from being persuasive, regrettably these one-sided appeals saw Circuit Judges led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal. In case this Claimant tries to rely upon these, the Defendant avers that errors were made in every case.  Evidence was either overlooked (including signage discrepancies in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice 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 parking contract in Beavis. Those learned Judges were not in possession of the same level of information as the DLUHC, whose incoming statutory Code of Practice now clarifies such matters as a definition of 'parking' as well as consideration and grace periods and minor matters such as 'keying errors' or 'fluttering tickets/permits' where a PCN should not have been issued at all, or should have been cancelled in the pre-action dispute phase.

POFA and CRA breaches

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 and liability transferred. 

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.

17. 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.  Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that 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/open dealing and good faith. 

ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms)

18. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must each be determined on their own facts.  That 'unique' case met a commercial justification test, and took into account the prominent yellow/black uncluttered signs with £85 in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts set a high bar that this Claimant has failed to reach.

19. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'.

20.  In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver.  Consequently, it remains the Defendant’s position that no contract to pay an onerous 'penalty' was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).  

21. 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." 

Lack of standing or landowner authority, and lack of ADR

22. DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder (ref: KADOE rules).  It is not accepted that this Claimant (an agent of a principal) has authority from the landowner to issue charges in this place in their own name.  The Claimant is put to strict proof that they have standing to make contracts with drivers and litigate in their own name.

23.  The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new incoming statutory Code shows that genuine disputes such as this would see the charge cancelled, had a fair ADR existed.  Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair appeal was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).  

Conclusion

24. The claim is entirely without merit. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

25. There is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of intimidating pre-action threats.

26. In the matter of costs, the Defendant asks:

(a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5. 

27.  Attention is drawn specifically to the (often-seen from this industry) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

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:

Date: