Need to write a County Court defence - any advice much appreciated

jmdl9

Hi folks, 

Any advice you can give me on how to write a good defence for this would be much appreciated. I have extensively read all of the NEWBIE and associated threads and plan to use some modified text from the template text someone has helpfully provided. However if anyone has any additional defence material they could recommend for my specific circumstances I would much appreciate it.
Final deadline for defence submission: 14th July 2023

CPMS issued parking charge dated July 2022. I did not appeal or contact them at all. I can't find the first letters from CPMS which is odd because I usually keep them (based on previous experience), and I do have the bunch of debt recovery letters that followed. 
Reason for issue: 'Parked in someone else's allocated bay.'
Was first handed to Debt Recovery Plus, then to BM Legal.
Parking charge is £100, plus £60 'debt recovery costs' - court documents say these recovery costs are set out in the Terms and Conditions of the parking and in the ATA AoS Code of Practice (whatever that is). 
They have added interest making amount claimed ~£165 + court fee + legal representative costs giving total amount of ~£250.

Circumstances:
I was visiting my friend's apartment to pick up my dog who he had been looking after - i.e. a permitted visitor, plus loading up dog and associated stuff. It was in the evening, parked in bays in front of building for around 20 mins. I had parked there twice before for the exact same reason and not received a ticket - on first occasion I asked security if okay to park there for a short time and they said yes, on third time I got the parking charge.
I have zero memory of there being signs when I parked there, which I always look for, but do not have photo evidence. The bays now have very obvious signs (which I will unequivocally state I do not remember being there when I was given the parking charge). However there are still no markings to indicate any kind of 'allocated bay', and they now also have bollards in use to block of the spaces in the evening (not there when I was parked). If one was loading or unloading they are the obvious choice to park in for a short period to do so, as there is no where else that isn't in the way on the road itself.

How does one defend being a permitted visitor and loading/unloading? Should I ask my friend, who still lives there, to provide a witness statement? I will use the template paras that refer to the additional £60 charge being added.

Thanks in advance.

Umkomaas

Use the defence from the Template Defence Announcement near the top of the first page of the forum thread list. Check out the case of Jopson v Homeguard, an appeal that has ongoing legs in the small claims court, which you will cite as it is all to do with loading of a vehicle. 

The NEWBIES FAQ Announcement, second post, also covers dealing with a court claim. 

Your friend can write a witness statement in due course (some months away, not as part of the defence stage), but will need to make themselves available for the hearing if it reaches that point. 

Final deadline for defence submission: 14th July 2023

So that regular contributor @KeithP can check timeline that you will need to work to, please provide us with the 'Date of Issue' on the court claim form and confirm whether you have acknowledged service (AOS), and if so, on what date please. 

Coupon-mad

Which solicitor?

Search the forum for Jopson parking defence.

jmdl9

Date of issue in June, yes I have the AOS as followed the advice to do that. I used 33 days from date of issue as per post.

Do you mean the specific named person who is the legal representative? Just want to check before naming parti ulars here.

Thanks

jmdl9

Just to note the address for sending do uments etc is listed as BW Legal, cant see any other info that names a solicitors practice

Coupon-mad

jmdl9 said:

Date of issue in June, yes I have the AOS as followed the advice to do that. I used 33 days from date of issue as per post.

Do you mean the specific named person who is the legal representative? Just want to check before naming parti ulars here.

Thanks

Exact date in June please?

No, not someone's name. The 'legal' company name in the box above the Claimant.

KeithP

jmdl9 said:

Date of issue in June, yes I have the AOS as followed the advice to do that. I used 33 days from date of issue as per post.

The suggestion was that you give the exact date of both the Issue of your Claim and of your filing an Acknowledgment of Service.
Of course no-one is suggesting that your date calculations are wrong, but you may be surprised at the number of people we see here who do get it wrong.
Equally of course, you are free to keep the information to yourself.

jmdl9 said:

Do you mean the specific named person who is the legal representative? Just want to check before naming parti ulars here.

@Coupon-mad means the name of the company who issued the Claim.
Was it CPMS that issued it or did they use BWLegal, Gladstones, DCBLegal or someone else. 

jmdl9

Hi,
There is no legal company name above the claimant, it just says CPMS so they must have issued it themselves. 

Re. The date of issue, I'm just avoiding naming specifics. I've given myself an early deadline to be sure i dont miss it, plus double checked it just now, and it's all good. Thanks for checking.

Re. Jopson defence - they were a resident of the building not a visitor, does this materially affect the defence? They reference their lease agreement, my friends lease agreement does not mention anything on visitor parking, loading or unloading.

Can I also check - where the presence of signage is contested is the burden of proof on them to show it was there at the time? I am wondering if they put the cameras up before the signs, given I stopped to unload in same spot a week earlier and did not get a charge.

B789

jmdl9 said:
They reference their lease agreement, my friends lease agreement does not mention anything on visitor parking, loading or unloading.

What the lease doesn't say about parking is just as important as what it does say.

Coupon-mad

What "cameras up" are you talking about?

Surely the photos were taken by a predatory ticketer on foot?  You can tell by the image angle.

Re. Jopson defence - they were a resident of the building not a visitor, does this materially affect the defence?

No. Read the judgment; HHJ Harris also talks about the unfair effect on visiting vehicles needing to briefly unload (milkmen etc).

 They reference their lease agreement, my friends lease agreement does not mention anything on visitor parking, loading or unloading.

No worries. There are no onerous obligations or relevant parking charges in the resident's lease/tenancy agreement then!

He/she will have an implied or written right of way to his/her flat and a right to 'peaceful enjoyment'.

jmdl9

Hi folks, 

My draft defence is below, using the template and some text from other people's defences - any feedback much appreciated. Many thanks in advance.

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.

The facts as known to the Defendant:

2.     It is admitted that the Defendant was the registered keeper of the vehicle and the driver on the date of the alleged contractual breach.

3.     The Defendant was a permitted visitor to XXX Apartments for the purpose of collecting their dog, who was being looked after by a friend who is a resident of the building. The Defendant was stopped in unmarked parking spaces outside the front of the building for a short period to collect the dog and associated belongings from the apartment and load them into the vehicle.

4.     The Defendant had stopped in the same place for the same purpose on two occasions prior to the date of the alleged contractual breach, without receiving a similar Parking Charge Notice. On each occasion, the Defendant and the resident of the building spoke to a member of security staff in the lobby and was told it was permitted to stop there for a short period of time to load and unload.

5.     The resident has an implied right to allow visitors access to the apartment for the purpose of loading and unloading. [any legal references that can be added here?]

6.     In Laura Jopson v Homeguard Securities, Judge J Harris QC states "getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration" is not parking. This was an appeal court case and thus persuasive on the lower courts. The court transcript of that hearing and judgment, heard on appeal by Judge Harris sitting at Oxford Court, will be provided at witness statement stage in support of this defence.

7.     No fair consideration or grace period was allowed, despite this being mandatory in the Claimant's Code of Practice. The Defendant is unsure what the cause of action is, and what they are supposed to have done wrong, given that the Particulars are silent about the precise allegation, grace periods, or any terms of the supposed 'contract'.

8.     The Consumer Rights Act 2015, s.69 (1) states that "If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail." The Defendant avers to the Highway Code as the normal interpretation of stopping on double-yellow lines to drop-off and collect passengers.

9.     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”.  

....then uses the text from the template para 4 onwards post by @Coupon-mad to address the extra £60 recovery cost etc.

Is there any merit in challenging the legal fees? Given that CPMS state details on their website about issuing court summons and all the cases they've won, so they clearly do it a lot: www.cpmsmanchester .com/#services. I found some previous text I could adapt for this, but assume I would need proof that they submit a lot of claims via bulk processing service?