Defence to be filed today!

WalkAbout13

Hi all,

I apologise in advance for this, but my mum has ignored several letters from the claimant and has only just made me aware that she has received a claim form. The defence has to be filed by tomorrow, which means I am going to be spending my evening writing a defence! 

I have checked the Newbies thread and I intend to use the template defence as discussed there. I just had a couple of questions I hoped you guys could help with.

1. My mum is the registered keeper but was not the driver. I believe there is no benefit to not naming the driver as the NTK is POFA compliant. However, my mum was not in the vehicle and did not witness what the claimant is alleging. When writing paragraph 3 of the defence, is it okay to refer to the Driver? Should I name the driver so that they can provide a witness statement later? I'm not sure how my mum can provide a witness statement when she was not present at the relevant time. My thinking is that in para 3 of the defence I refer to the driver and explain the facts. I would then later submit a witness statement from my mum (as the defendant) and also another witness statement from the Driver who can explain what happened.

2. The Driver was told by the parking attendant that his car "would be fine parked there" whilst he popped into his local business to drop off some stock. When the NTK arrived in the post, the Driver queried this with the parking attendant who told the Driver to 'ignore as he would sort it'. I guess there is an argument that there is an oral contract between the attendant representing the parking company and the Driver - do you think this should be mentioned in the Defence?     

3. The parking attendant in question has since allegedly been fired for making others pay the PCN on the spot (and they would still receive the NTK through the post). However, I have nothing to prove this - is it worth mentioning at all?

4. The signage (only one sign on this side of the area) was inadequate and has since been changed to be clearer and more signs added. I have google maps shots of the previous signs. Is the fact the signs have been changed something you would mention in a defence or save for WS?

5. Finally, PPL only used to manage parking on one side of this piece of land (the left side). Land Registry shows that the left hand side is a different land owner to the right hand side. Whilst it is possibly PPL have no authority at all, I am pretty certain that they have recently stuck signs on the right hand side of this area without permission. Should I be asking in my defence for the claimant to provide proof of a contract with both landowners? More confusingly, the wall the signs were affixed to on the right hand side is actually owned by a different landowner than the other two pieces of land. It is actually owned by the National Grid (as it is a substation wall) and I would be very surprised if they had permission to affix that sign.

I look forward to hearing your guys thoughts on how to go about defending this... I'm worried that I may not have enough time to get everything I want into the defence!  Thanks all.

KeithP

What is the Issue Date on the Claim Form?
Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

Can you please show us the Particulars of Claim from the Claim Form - with personal detail hidden of course.

WalkAbout13

Yes, an AoS was apparently filed on 17.05.24.  The date of the claim form is 03.05.24.   PoC above - thanks very much for your help.

KeithP

WalkAbout13 said:

Yes, an AoS was apparently filed on 17.05.24.  The date of the claim form is 03.05.24.   PoC above - thanks very much for your help.

Yes, you are right with your Defence filing deadline, but there might be something useful here...

With a Claim Issue Date of 3rd May, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 5th June 2024 to file your Defence.

That's tomorrow.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.


You need to be aware that those Particulars of Claim are totally inadequate.

Nowhere in those Particulars is there any explanation of what the driver is alleged to have done wrong.

This will be an easy win.

Coupon-mad

Yes I would briefly mention all 5 things you raised in your OP, but because the POC are so poorly pleaded (no specified breach) you need to use the alternative defence which is linked in para 3 of the Template Defence itself.

WalkAbout13

Thanks Coupon-mad. I have used the paragraph 2 and 3 from the linked post and inserted screen grabs of the transcript into the defence. 

The rest of my defence is as follows - please could you let me know if you have any thoughts? Please ignore the numbering which is correct in the actual document.

I'm not entirely sure where to insert the point about the signage having changed so open to suggestions!

The facts known to the Defendant:

1.    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 fails 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. At the material time, it is denied that the Defendant was the driver of the vehicle.

2.    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.

3.    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.

Ostensible authority

4.    On [the date in question], the Driver parked his car on [the land in question] with authority from the parking attendant working for the Claimant, who informed him that his “car will be fine parked there”. The Driver relied on this information, which he took to constitute a verbal contract permitting him to park the vehicle temporarily. It is argued that the parking warden, as an employee of the Claimant, had ostensible authority to make such representations.

5.    Lord Diplock said in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480: 

“An "apparent" or "ostensible" authority…is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the "apparent" authority, so as to render the principal liable to perform any obligations imposed upon him by such contract.”

6.    In this case, the parking warden, by virtue of his role and actions, led the Driver to reasonably believe that he had the authority to permit parking on the Claimant's behalf. 

7.    When the Defendant received the Parking Charge Notice (PCN) in the post, the Driver immediately contacted the same parking warden to query the charge. The parking warden stated, "It must have been someone else who came around and issued that one," and advised the Driver to ignore the PCN, assuring him that he would speak to his company and have it cancelled. 

8.    The Driver acted in good faith based on the parking warden’s assurances and believed that the matter had been resolved. The warden’s statements and conduct gave the Driver further reason to believe that he had the authority to make binding decisions regarding parking enforcement.

9.    It has come to the Defendant’s attention that this parking warden has since allegedly had his employment terminated by the Claimant for taking payment from individuals in relation to PCNs issued on the spot. This alleged termination indicates the parking warden was acting under the Claimant’s authority at the time of the incident and casts doubt on the agent’s character.

10. The Defendant further contends that the Claimant is estopped from enforcing the PCN due to the doctrine of promissory estoppel. The Driver was led to believe, through the explicit assurances of the parking warden, that he was permitted to park temporarily and that any subsequent PCN would be cancelled. The Driver acted to his detriment by relying on these assurances, and it would be inequitable for the Claimant to now assert otherwise. The Defendant puts the Claimant to strict proof on this matter.

["Exaggerated Claim and 'mark failure' currently being addressed by UK Government", "CRA breaches" and "ParkingEye v Beavis is distinguished" sections are all the same]

Lack of standing or landowner authority, and lack of ADR

XX. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate.

XX. The Defendant believes that the Claimant does not have permission from [LANDOWNER NAME] who owns the freehold interest in the land where the vehicle in question was parked. It is also believed that the Claimant does not have permission from the National Grid to affix signage onto their property, diminishing the visibility of the electrical warning signs and confusing the reasonable person. The Claimant is put to strict proof on these two points.

XX. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

[Conclusion section the same]

Johnersh

I'm not sure para 2 works.

If you've got the witness to bring to court, if the driver was told or encouraged to park by a parking operative who misled as to the effect of the parking sign/contract aren't you really pleading fraud by misrepresentation?

WalkAbout13

Para 2 is from the template defence... should I remove it?

I think fraud by misrep works in relation to the parking attendant taking money from other motorists, but that did not happen to the Driver here so ostensible authority and promissory estoppel is more appropriate. The Driver relied on the apparent authority of the parking attendant which was used to form a verbal contract. 

Johnersh

if the parking company are now seeking to enforce a contract and take cash when the effect of the sign was varied or misrepresented then that would be my argument because it’s not an honest error, but done with the intent of issuing a PCN anyway.

Did he really say “I’ll issue a PCN but you can claim it back” because that’s what appears to be said.

there’s a lot I don’t like on the template. I much prefer to keep a good argument to the facts. In my view terms like “kangaroo court” appear Trumpian, add nothing and get ignored (potentially with any better points that are trying to be made) but that’s why each individual must take responsibility for adapting precedent and tailoring their case.

LDast

How do you challenge it if the accusation is denied? What evidence does the driver have to back up the allegation of promissory estoppel? What does the Defendant have from the driver other than hearsay?

I would think that because the OP mentioned "...he popped into his local business to drop off some stock" is a better point and use Jopson v Homeguard as an argument that the driver was simply loading/unloading and not parking.

In any case, because the PoC are so woefully inadequate and the CEL v Chan preliminary matter is being raised, there should be as little as possible in the Defendants section of the defence except a response to the PoC. The Defendant is the keeper. The Defendant is not the driver. The defendants vehicle was at the location on the date. The defendants vehicle was not parked but the driver was unloading and delivering good at the location.

That's all that should be as a response to the PoC and anything else expanded on at WS time, if it ever gets that far. The template defence already leaves open the option to challenge whether the Claimant even had any authority to operate on that side of the car park and for them to provide evidence to prove they did.

My only other suggestion is to include the addition preliminary matter of the breach of PoFA 4(5) which still applies whether the NtK was PoFA compliant or not. After the CEL v Chan transcripts, add the following paragraph:

4. Additionally, the Claim should be struck out on the basis that it contravenes Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012 (PoFA). PoFA clearly stipulates that a creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking charges as they stood when the notice to the driver was issued. The original Parking Charge Notice (PCN) issued by the claimant was for £100. The claimant's current claim is for £170, which exceeds the amount of the unpaid parking charges as stated in the original notice. The claimant’s attempt to claim an unlawful amount constitutes an abuse of process and should not be allowed to proceed. I respectfully request the allocating judge to dismiss the claim on the basis of the claimant’s contravention of Schedule 4, Paragraph 4(5) of PoFA and thereby CPR 1.1, CPR 3.4(2)(a) and (b) and CPR 27.14 and to award costs to the defendant for having to defend against this improper claim.

WalkAbout13

Thanks all. Defence has been submitted, making the alterations noted above. I have also emailed a copy to the claimant's solicitors. I guess now all that's left to do is wait! I will send a SAR to the claimant in the meantime.