Total car parks, 2 PCNs

Ab93

Apologies that I didn’t update, I sent total car parks an email that said I have no intention of paying unless I am instructed to do so by the court, so there is no need to even speak to debt collectors, you can take me to court and dispute the monies ‘owed’ by me to yourself without adding their fees and they came back to me saying ‘well that is standard procedure so we will be going down the debt collector route’ to which I replied saying ‘ok then you can pay their fee’ and then I heard nothing until I got the letter of claim shortly followed by the real actual claim form. 

I’m glad you asked about this because I also wanted to ask, although I read ‘do not answer anything not in the POC’ should I be adding this as part of my defence? And/or that I offered to settle all outstanding for £60 without liability to make this go away and they declined? Should I be adding what I’ve written about the signage in this thread? Sorry if this has been asked and explained before but as usual just as I am getting ready to say ‘right I think I’m done’ then I start questioning everything 🤣 

thanks again 

Coupon-mad

So the claim has added £70 for debt recovery that didn't happen and where you had already disputed the alleged debt?  I would add that.

Not the bit about you offering to pay £60!  No!

Ab93

It’s actually £60…per PCN, and I have 3 outstanding, so almost 2/3s of the whole alleged ‘debt’ added, cheers! 

Ab93

Ab93 said:

Hi guys I didn’t post my draft before submitting last time so thought I would this time to see what you all think, any comments welcome thanks again,

I would like to highlight total car parks response to my evidence and both have been copied below. 

“I will attach photos I have taken which would have been taken at the same time of the car being parked.

The lighting surrounding the ‘clear’ signage makes it very difficult to see there are any changes to, if any, signs at all, arguably intentionally.” 

- The photos the Appellant have provided are at night, his vehicle was observed by the car park attendant in the day time, so the Appellant is incorrect in saying that the photos he provided are the same ones which the attendant captured, the attendants photos can be found in Section E, pages X to X. As explained, the Appellants vehicle was observed contravening the terms and conditions during day time, so the signs throughout the car park would have been visible to him at the time, as shown in Section B, pages 11 to 39, as well as the BPA entry sign at the entrance to the car park clearly explaining that the site is Private Land and that terms and conditions of parking apply (Section B, pages 11 to 12). In any case, the Appellants photos he provided actually show that there is sufficient lighting in the car park that illuminate the signage, as our signs are made of a reflective material.

One of the main points I made was that the signage cannot be seen in the dark ‘at the time the car would have been parked’ they dispute this by saying the pictures I’ve taken are at night and theirs are during the day so I should have been able to see them as the attendant did when they issued the PCN. Baffling I know.

The photos that total car parks have provided show their signage from roughly 1-2ft away in daylight so are obviously visible, the photos I provided are real time photos at night from the road adjacent to the car park which is the only entry point, and also at the entrance to and within the car park which I have used to try and portray any real drivers view.

It would seem the point I made has been blatantly disregarded, and rather than acknowledge my claim, they have distracted back to their own ideas, at no point did I claim that the photos taken were at the same time as the attendant’s, and proceed to claim how they have followed the BPA CoP instead of looking at the actual photographic evidence to the contrary. 

I would also like to highlight this point which total car parks admitted themselves: 

the Appellants photos he provided actually show that there is sufficient lighting in the car park that illuminate the signage, as our signs are made of a reflective material.

I’m sure the signs weren’t installed at night in the dark to test this, if they were, the signs would look like they do as I have pictured. And I’m sure in theory that was a good idea, however, again, in practice the result is the signage appears as I have pictured, arguably intentionally. 

I would also like to raise a point in which I will quote total car parks in stating as fact: 

– It is not possible for us to install any extra signs, as there were no signs in place at the car park prior to when we began to manage the car park on Nth October 2023. 

Again, as at least one of my photos would show, there is ample opportunity for extra signage, namely the picture I provided that would show the drivers point of view from the parked vehicle. And I would like to question is this statement true? Is it really impossible to install any more signs? Or have the ones put up just been strategically placed? 

Thank you 

I will post my draft defence shortly, just wondered is there room in my defence for these points? Or do these wait until court sorry I don’t know thanks again 

Ab93

Also I have realised my defence has point 6 starting: 

6. Clearly there is no 'legitimate interest' supporting these enhanced speculative invoices

Is this template outdated and everything from here can be removed and replaced with the ‘new’ template? 

Thanks again 

Coupon-mad

Basically, use the current Template.

Ab93

Ok thanks will do, as for the points made in the quoted post? Or just a summary of what happened on the day and leave that until later? Thanks 

Ab93

Here is my draft, any advice and all criticism welcome, thank you!

IN THE COUNTY COURT

Claim No.:  XXXXXXXX

Between

XXXXXXXX

(Claimant) 

- and -

XXXXXXXX

 (Defendant)

_________________

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')

Preliminary matter: The claim should be struck out

2. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4

***chan pictures***

The facts known to the Defendant:

3. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The 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". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper and driver. 

Background

4. It is admitted that at all material times the Defendant is the registered keeper and driver of vehicle registration mark XXXXXXX which is the subject of these proceedings.

5. It is admitted that the Defendant's vehicle was almost certainly parked at XXXXXXX, XXXXXXX, XXXXXX. The defendant parked here around 7am after a night shift and took a short walk to his home address. The defendant then received a PCN(s) over a week later. The defendant definitely did not notice any new or clear signage at the time of driving into the car park and parking the vehicle and was thus unaware of committing any breach until the PCN(s) arrived via notice to keeper letter(s). 

The defendant frequented this car park between 2016 and 2023 because it offered free parking to the public, and this location was close to the defendants home address where the defendant has to share a single parking permit. This car park would become very popular on occasions for example when XXXXXXXX Football Club were playing their home games and supporters would park here, and nearby residents without means of parking on the neighbouring road would park their vehicles here regularly without consequence. 

At some point the operator seems to have taken control of the car park, however it did not take sufficient steps to notify regular users of any change in previous arrangements. 

As a member of the BPA AOS scheme, the operator is obliged to comply with the BPA AOS Code of Practice, section 19.10 of which reads as follows:-

19.10 Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones.

The operator has plainly breached paragraph 19.10 of the BPA AOS Code of Practice and must for that reason cancel the PCN(s). 

The defendant instructed the claimant to proceed straight to court to dispute the alleged debt without including any debt collectors or adding any extra fees unnecessarily, the claimant declined. 

6. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and…(rest of new template) 

Coupon-mad

I don't think Chan applies. Hence why I advised you to use the Template Defence, not that one!

The POC do say that the alleged breach is 'parked without payment'.

Remove this, not needed:

"This car park would become very popular on occasions for example when XXXXXXXX Football Club were playing their home games and supporters would park here, and nearby residents without means of parking on the neighbouring road would park their vehicles here regularly without consequence." 

This should also change to this and it will be para 4:

4. The Claimant will concede that little/no financial loss has arisen (save for their argument that an unknown new 'parking fee' applied, but that was not sufficiently prominent to be noticed or bind the Defendant). In any case, in order to impose ... etc., etc.

Ab93

Oh ok my apologies, I just thought because they haven’t actually stated what was on ‘the sign (the contract)’ that I might have grounds to use it, but I will of course change it now, once I have and removed what you’ve said is not needed does it get the thumbs up? Thanks for the fast reply!