Draft Defence against Highview Parking Ltd

lukeario95

B789 said:

lukeario95 said:

KeithP said:

You have now added the missing sub-heading.

Just the paragraph numbering to sort out now.

what is wrong with the numbering?

EVERY paragraph needs a sequential number.

Are you referring to this part?

Exaggerated Claim and 'market failure' currently being addressed by the Government

6.  The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred by this Claimant, who is put to strict proof of:

6.1. (i).  the alleged breach, which is not pleaded in the POC and thus requires further and better particulars, and

6.2. (ii). a breakdown of how they arrived at the enhanced sum in the POC, including how interest has been calculated, which looks to have been applied improperly on the entire inflated sum, as if that figure was overdue on the day of the alleged parking event.  

B789

I'm not sure about which bit of "every" paragraph is unclear.

The above bit should really be like this:

5. Previous paragraph.

6.  The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred by this Claimant, who is put to strict proof of:
    (i).  the alleged breach, which is not pleaded in the POC and thus requires further and better particulars, and
   (ii). a breakdown of how they arrived at the enhanced sum in the POC, including how interest has been calculated, which looks to have been applied improperly on the entire inflated sum, as if that figure was overdue on the day of the alleged parking event. 

7. Next paragraph.

lukeario95

B789 said:

I'm not sure about which bit of "every" paragraph is unclear.

The above bit should really be like this:

5. Previous paragraph.

6.  The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred by this Claimant, who is put to strict proof of:
    (i).  the alleged breach, which is not pleaded in the POC and thus requires further and better particulars, and
   (ii). a breakdown of how they arrived at the enhanced sum in the POC, including how interest has been calculated, which looks to have been applied improperly on the entire inflated sum, as if that figure was overdue on the day of the alleged parking event. 

7. Next paragraph.

Thanks for the clarification, would I also need to do this with paragraphs 3 and 4?

DEFENCE

 

1.  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 in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) 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 boilerplate text in the Particulars of Claim ('the POC').

 

The facts known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle. However, the Defendant does not know who was driving on an unremarkable day 6 years ago due to other people being insured to (and regularly using) the vehicle.

3. The defendant is unsure if the ticket was allegedly issued on windscreen or if the alleged offence was captured via ANPR, as no NTK was ever received.

3.1. The description of the address on Court Form is confusing, as it gives an address which, on Google maps and street view is quite a large area incorporating several other businesses. Since the alleged charge was from 6 years ago, many of said businesses in the area have changed.

3.2. The Defendant assumes it must be a retail carpark which has adjoining accommodation with other retail stores which is on the street listed, but this is only an assumption due to not receiving a PCN or NTK.

3.3. The Defendant has visited this area before, but it was years before and the Defendant cannot remember if parking restrictions were in place. As the Defendant does not have an original PCN or NTK, the Defendant does not know how to answer the claim of the breach.

4. It is neither admitted nor denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

4.1. The Claimant has provided no evidence 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")

4.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

4.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

4.2.2. there was 'adequate notice' of the parking charge and clear, prominent terms; and

4.2.3. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

4.2.4. It is denied that the Claimant has complied with the relevant statutory requirements.  The Defendant avers that this parking firm did not use the 9(2)f 'POFA' keeper lability wording until 2023.

4.3. 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 and if it had ever been as simple as the legally unsafe position of parking operators being able to 'assume that a registered keeper was driving' there would have been no need for POFA Schedule 4 in the first place.

 

5. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely. the Defendant observes after researching other parking claims with the same POC that this claim sets out a cut-and-paste incoherent statement of case.  The POC is sparse on facts and specific breach allegation, making it very difficult to respond. The Defendant avers that this claim is unfair and inflated and it is denied that any sum is due, whether in debt or damages.

 

Exaggerated Claim and 'market failure' currently being addressed by the Government

6.  The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred by this Claimant, who is put to strict proof of:
(i).  the alleged breach, which is not pleaded in the POC and thus requires further and better particulars, and
(ii). a breakdown of how they arrived at the enhanced sum in the POC, including how interest has been calculated, which looks to have been applied improperly on the entire inflated sum, as if that figure was overdue on the day of the alleged parking event.  

7.  This Claimant routinely pursues a disproportionate fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce disproportionate 'Debt Fees'.  This case is a classic example where adding exaggerated fees encourages the 'numbers game' of inappropriate, out of control bulk litigation of weak/archive parking cases.  MoJ statistics of bulk litigators reveal that there are hundreds of thousands of parking claims every year with some 90% causing default CCJs adding up to hundreds of millions of pounds.  No checks and balances are likely to have been made to ensure facts, merit or a proper cause of action, given away by the woefully inadequate POC.

B789

Well, considering you are only responding to the PoC, does everything you've put in all those sub-paragraphs need to be in the defence? Your WS will be where you expand on the main points of our defence.

Carefully read the PoC and decide what you are responding to. Don't do the claimant's work for them.

Le_Kirk

Simple numbering is best, makes it easier for you (and the judge) to refer to in court.

lukeario95

B789 said:

Well, considering you are only responding to the PoC, does everything you've put in all those sub-paragraphs need to be in the defence? Your WS will be where you expand on the main points of our defence.

Carefully read the PoC and decide what you are responding to. Don't do the claimant's work for them.

These are the particulars of claim:

1. The Defendant(D) is indebted to the Claimant (C) for a Parking Charge(s) issued to vehicle XXXXXXX at XXXXXXXXXXXXXX
2. The PC details are XX/XX/2017, XXXXXXXXXXXXX

3. The PCN(s) was issued on private land owned or managed by C. The vehicle was parked in breach of the Terms on Cs signs (the Contract), thus incurring the PCN(s).
4. The driver agreed to pay within 28 days but did not. D is liable as the driver or keeper. Despite requests, the PCN(s) is outstanding. The Contract entitles C to damages.

AND THE CLAIMANT CLAIMS

1. £170 being the total of the PCN(s) and damages.
2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £0.02 until judgment or sooner payment.
3. Costs and court fees

Le_Kirk

The latest template defence answers the lack of details in the POC or "sparse particulars" as it is called.

lukeario95

Le_Kirk said:

The latest template defence answers the lack of details in the POC or "sparse particulars" as it is called.

So would you say this template defence is okay for submission now?

Coupon-mad

Looks fine.

lukeario95

Coupon-mad said:

Looks fine.

Thank you to everybody for all of your help, I have now emailed my defence to CCBCAQ@Justice.gov.uk, and received the auto response as mentioned in the template thread.