Claim Form: euro car parks ltd

studiousowl

What do you think of paragraph 3.. 

3. The Defendant was a member of staff working in the Intensive Care Unit at the x hospital (Site) and admits to parking in the onsite parking on the dates stated by the Claimant. The Defendant had been unable to obtain a parking permit despite working at the hospital for over 1 year at the time due to the chronic shortage of hospital parking spaces, and had been paying using the Pay & Display when parking onsite. Following the receipt of the penalty charge notices, the Defendant contacted a representative of the Landowners (Head of Security at x Trust) to request that the penalties be suspended given that we were at the peak of the second wave of COVID-19, the department was overrun with critically unwell patients and the Defendant alongside most members of staff were suffering from burnout, and the Trust (unlike other neighbouring hospital Trusts) were not subsidising parking for their staff.  Following this, the Head of Security agreed to suspend the penalty on behalf of the Landowner and wrote to Euro Car Parks.  However, I was then emailed by the Head of Security stating that Euro Car Parks refused to waive the fees. The Claimant subsequently continued to chase payment through years of continuous harassment with letters from solicitors and debt collecting agencies. Given that Euro Car Parks claims to be acting on behalf of the Landowner they do not have a right to overrule the Landowner and chase fees when the Landowner had agreed to waive them.

KeithP

In paragraph 2 of those Particulars, the Claimant is unsure whether the Defendant was actually the driver and is attempting to say it doesn't matter as POFA makes the Keeper liable. 

However, in paragraph 3 they assert...
"The Defendant agrees the T&Cs upon leaving their vehicle...", thus strongly implying that the keeper was driving.

And in paragraph 4 they state...
"The Defendant has parked the vehicle...", thus strongly implying that the keeper was driving.
and in that same paragraph it goes on to say...
"The Defendant is responsible for the payment of any charge...".

In paragraph 5 they continue with the assumption that the Defendant was driving...
"...dates and times at which the Defendant parked...", 
going on to say...
"...the Defendant parked at the Site five times...".

Paragraph 7 once more states that the Defendant was the driver...
"As a result of the Defendant's breach of the Contract...".
Only the driver could have breached the contract.

So to summarise...
the Claimant starts by being unsure of whether the Defendant was driving or not, but in every subsequent paragraph the Claimant has either decided, or just simply assumed, that the Defendant was the driver.

KeithP

Having now read your 7:41pm post, it might be difficult to deny being the driver.

studiousowl

Which would be a better defence - para 3 is the honest play by play of what happened ( I have email receipts of correspondence from head of security where he says that he will email euro cp and then emails back to say they refused to waive these 5 PCNs but waived some earlier ones)..
Additionally are their any other amendments to the template I should make. It is just para 1 and 3 that I have edited. 

Coupon-mad

£350 to collect £300 ...LOL!

Read the other four QDR cases & copy.

studiousowl

I have read through the threads by Bellatrix42, Theyreallyouttogetme and Tiredofbeingdone - 
Sad to see the stress caused and best of luck to all with their defence!
Their cases are slightly unique in that they seem to  have received 1 PCN whilst I stupidly have been loaded with 5   . I digress.. 
Also the dates on the PoC have been written correctly.
I have taken mainly from @Bellatrix42's edits (with great thanks) of the first few paragraphs with the personalised edit as above.. From then onwards it is a copy and paste of the original template
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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. 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.

3. Re: Defective POC: no contract

CPR PD16 7.3(1) when serving a separate PoC the full written terms of the contract are required to be appended. There is an exemption for MCOL claims, but that is expressly DISAPPLIED in CPR 7C when the PoC are served separately. The defendant has not received full terms of contract with the subsequent PoC. 

 

4. Statutory interest is discretionary and the PoC do not set out full details of the calculation as required by CPR 16.4(2). 

 

5. The claimant appears to contradict themselves regarding whether the claim is for loss or damage in paragraph 9 of the PoC. 

 

6. The Defendant was a member of staff working in the Intensive Care Unit at the X Hospital (Site) and admits to parking in the onsite parking on the dates stated by the Claimant. The Defendant had been unable to obtain a parking permit despite working at the hospital for over 1 year at the time due to the chronic shortage of hospital parking spaces, and had been paying using the Pay & Display when parking onsite. Following the receipt of the penalty charge notices, the Defendant contacted a representative of the Landowners (Head of Security at X Trust) to request that the penalties be suspended given that we were at the peak of the second wave of COVID-19, the department was overrun with critically unwell patients and the Defendant alongside most members of staff were suffering from burnout, and the Trust (unlike other neighbouring hospital Trusts) were not subsidizing parking for their staff.  Following this, the Head of Security agreed to suspend the penalty on behalf of the Landowner and wrote to Euro Car Parks.  The Defendant subsequently received notice that Euro Car Parks refused to waive the fees. The Claimant subsequently continued to chase payment through years of continuous harassment with letters from solicitors and debt collecting agencies. Given that Euro Car Parks claims to be acting on behalf of the Landowner they do not have a right to overrule the Landowner and chase fees when the Landowner had agreed to waive them.

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Do you think this is sufficient - particularly paragraph 6, is it a weak defence? Should I omit that..
Again many thanks for your help through all of this.. 

Mikeh2001

I am not an expert but there is plenty of opportunity to lay out of the sequence of events (from your side) at the later stage in the process (witness statement) if you ever get there.

I think you should make number 6 shorter and focused on the legal argument you want to make which essentially is the last sentence.

Assuming there is no doubts about the driver and you are admitting to that You could simply say you were employee of the landlord who was accessing their land in the course of your employment... sought reassurance from the landlord that the parking was authorized and that any falsely applied "penalty charges" would be cancelled. 

You say "Given that Euro Car Parks claims to be acting on behalf of the Landowner they do not have a right to overrule the Landowner and chase fees when the Landowner had agreed to waive them". However I think it's only useful in your defence if you can back it up with some case law or legislative arguments.   I can't advise you on that sorry but I hope one of the experts will be able to.  Good luck!

Coupon-mad

They can overrule a cancellation request (because the contract is between PPC and driver) BUT the proper argument is that by targeting employees and refusing to cancel PCNs when instructed by their principal, they no longer have the 'legitimate interest' overriding 'commercial justification' that saved ParkingEye's PCN from being struck out as a penalty by the Supreme Court.  Parking operators must not just penalise drivers.