DCB Legal Court Date March Resident

Coupon-mad

Yes please repost it and tell us what he said was wrong with it?

Colonizemars

It’s a bit of a pickle he was really kind about it I accidently submitted a defence for another claim for this claim something totally irrelevant so he said no problem I’ll wipe it out and give you 14 days to submit the correct defence 

here’s the defence I want to submit if you think it’s good enough will resubmit 

1. It is disputed that the Defendant ('D') is indebted to the Claimant ('C') for a Private Parking Charge(s) ('PPC') issued to vehicle MT64WPR at Tower Point, Enfield, EN2 6AZ. C is required to provide a copy of the Alleged Contract, upon which they rely, and prove that the driver of the vehicle was given proper consideration and intended to create legal relations. D avers that any terms that C relies on are unfair and hidden terms under English contract law:

The Unfair Terms in Consumer Contracts Regulations 1999:

5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

2. It is disputed that the PPC details are 06/07/2020, 90732; 29/07/2020, 91762; 03/082020, 91771; 05/08/2020, 92449; 13/04/2021, 136533.

D avers that the DVLA complied with a request for the Registered Keeper details of the Vehicle in breach of the Data Protection Act 2018, as reported by The Guardian on June 25, 2022 (theguardian.com/money/2022/jun/25/parking-fines-dvla-law-drivers-details-claims). The Information Commissioner’s Office (ICO) has determined that the DVLA "was not using the correct lawful basis to disclose vehicle keeper information." D contends that the unlawful method of obtaining the Registered Keeper details renders C's claim - fruit of a poisonous tree ('arborem fructus venenosa'), as established in the case of R v Sang [1980] AC 402.

3. It is disputed that the PPC(s) were issued on private land owned or managed by C. It is disputed that the vehicle was parked in breach of Terms and Conditions (the 'Alleged Contract') thus incurring a PPC(s). 

C failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to C's contractual authority to operate there as required by the C's Trade Association's Code of Practice 7.1 which says;

'If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question'

D denies that signage on and around the site was clear and visible, at the time of the alleged breach of contract it did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. C was a member of the IPC at the time and committed to follow its requirements. C was and is also a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver to pay the PPC. D refers the court to Excel Parking Services Ltd v Cutts that the content relied on by C could not be read by a driver entering the car park. It is denied that a sign was the offer and the driver of the vehicle entering the carpark was acceptance of any terms and conditions. 

4. It is disputed that the Driver agreed to pay within 28 but did not. It is disputed that either the Driver or D entered into any contract with C and agreed to any such term which D avers is a Hidden and Unfair term.  

5. It is disputed that D is liable as the driver/keeper of the vehicle. C is required to specify if they are pursuing D as the Registered Keeper or Driver of the vehicle on the date in question or relying on the provisions of POFA to bring an action against D as the Registered Keeper of the vehicle.

C has provided no evidence (in pre-action correspondence or otherwise) that D was the driver. D avers that C is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ('POFA'):

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

⦁ (a) There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

⦁ (b) That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

It is denied that C has complied with the relevant statutory requirements.

6. It is disputed that despite requests, the PPC(s) are outstanding. It is denied that any outstanding liability exists. C is required to provide a copy of all statements, demands, invoices, default notice and termination notice they claim to have sent in relation to the Alleged PPC. D avers that C is attempting betterment by bringing a claim for losses they have not suffered. 

7.  It is disputed that the Alleged Contract entitles C to damages. It is denied that C has suffered any damages due to the actions of D; and;

(i) It is disputed that C is entitled to claim £850 being the total of PPC(s) and alleged damages;

(ii) It is disputed that C is entitled to claim 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 £0.14 until judgment or sooner payment. D relies on the ruling in Sempra Metals Ltd v Inland Revenue Commissioners [2007] UKHL 34, the House of Lords held that damages for breach of contract should be assessed on the basis of the actual loss suffered by the claimant, subject to the principles of causation and mitigation. The court noted that damages were not intended to be a punishment or a windfall, but rather a compensation for loss. D avers that C has suffered no loss due to any actions by D and is not entitled to claim the sum claimed or interest on that sum.

(iii) the amount claimed of £1045.92 is disputed both whole and in part;

(iv) costs are disputed and the court is respectfully invited to award costs against C. 

8. D avers that C's particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a) and (c). In particular, the Particulars of Claim does not identify:

⦁ a. any list of documents that C intends to rely;

⦁ b. any explanation of how the amount of financial loss has been calculated;

⦁ c. if C intends to rely on computer generated ANPR evidence; 

⦁ d. the date of any default notice in relation to any Alleged Contract; or;

⦁ e. whether the claim is brought in trespass. If the driver on the date of the event was considered a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass. As the Supreme Court in the Beavis V Parking Eye (2015) UK SC 67 case confirmed such a matter would be limited to the landowner themselves for a nominal sum.

D avers C suffers no loss due to any action of D and invites the court to dismiss this claim as it is in breach of pre court protocols in relation to the particulars of claim under practice direction 16, set out by the ministry of justice and also civil procedure rules under 16.4 and to allow such defendants costs as are permissible under civil procedure rule 27.14.

STATEMENT OF TRUTH

I believe 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."

Wondering if it’s worth mentioning I was a tenant here from 2016-2022 

also wondering its a gated car park with fob only access 

Mikeh2001

I think you previously had feedback that this defence is somewhat out of date.

Great news you have chance to post a new one.

I suggest you start with the template defence thread found on page one of the forum. link below. adjust for any specifics of your case.  If you also search the forum for "residential" or "flats" or suchlike (sort by latest post) you will find many many examples of folks who have put together successful defences in cases like yours.

https://forums.moneysavingexpert.com/discussion/6108153/template-defence-to-adapt-for-all-parking-cases-with-added-admin-dra-costs-edited-31st-july-2023/p1

Coupon-mad

The UTCCRs went out almost a decade ago; replaced by the CRA in 2015.

Use the Template Defence.

Colonizemars

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant named on claim (can’t be changed to driver now)                        

 (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').

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. 

1. It is admitted that the defendant was parked at xxxxxxx as the defendant was a  resident at Xxxxxxxxx from 2016 until July 2022 & during this time they were de facto authorised to park a roadworthy vehicle. The car park is a gated premises in which access is only obtainable by way of a fob which only residents have access too. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

3.1. The defendant admits that there were many instances where their young child who is disabled would have a meltdown in turn grabbing anything in sight. Sometimes this being the parking permit.

3.2. It is admitted that the defendants priority was to calm their child aswell as safeguard herself and other child while safely escorting them from the vehicle and upstairs to their residence. 

Authority to Park and Primacy of Contract

4. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose leaseholder agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant parking area, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle. A copy of the leasehold agreement will be provided to the Court, together with witness evidence that prior permission to park had been given.

5. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

6. Accordingly it is denied that:
6.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
6.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.
6.3.  the Claimant has suffered or incurred any 'damages or indemnity costs if applicable' as vaguely stated in the original template POC dated 2020; or that
6.4. the Claimant could now (without offending against the doctrine of good faith) attempt to claim a disingenuous reward of three years interest, as was stated on the 2020 POC on the claim form that was never served, due to their own lazy and improper service to an old, unchecked address.

7. The underground car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. Entry to the underground parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

8. Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles.

{insert quotes from the lease to suit. The template example had: The definitions, at para. 1.6, define an 'Authorised Vehicle' as one which is taxed, roadworthy, and under 2 metres in height. At 1.54, the underground car park is defined. In Schedule 4, para.5, the Lessee agrees to only park a vehicle in an area set aside for that purpose. At para. 24, the Schedule to the Lease states that Lessees must not allow commercial vehicles, caravans, boats, trailers, etc. to be parked anywhere, and repeats the taxed and roadworthy requirements.} 

8.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

9. The Defendant, at all material times, parked in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

10. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

The Claimant, or their legal representatives, has added additional sums to the original parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

11. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £xxx.xx, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

12. Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail and the court is invited to strike it out.

12.1. In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.

1. 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(1)(e) and Practice Direction Part 16.7.5. 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 (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

14. 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

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

15. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

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.

Signature:

Date:

Colonizemars

Will change numbers etc accordingly please let me know your thoughts I have around 9 days left to submit 

Le_Kirk

You have used the @hharry100 defence, which is usually used when the particulars of claim (POC) are sparse but then go on to defend as if you know exactly what you are defending against.  Have we see the POC on the claim form, was it "not displaying a permit"?

Colonizemars

Hi yes it was for not displaying a permit 

please let me know if you recommend removing the hharry100 part

Le_Kirk

If the POC states clearly the reason, then you cannot claim they are vague and you cannot use @hharry100 defence.

Colonizemars

I’ll double check POC for exact wording