Dispute Resolution Hearing 26 March @ Huddersfield County Court NPML/Gladstones

skintbutwantstosave

fisherjim said:

Why are you muddying the waters by even mentioning parking on the road, they haven't mentioned it why are you?

You drove in saw the terms and conditions, decided not to park and immediately left, no parking even took place.

And you need to stop using terminology that is neither quoted or applicable there is no "fine" stated on any PPC signage or paperwork (made up signs by shops don't count), if there was they would be in trouble.

The Defendant confirms the vehicle was used to collect food from a nearby fast food takeaway “Downtown” which is adjacent to the “Hair and Beauty Bar”. The Defendant confirms the vehicle entered the car park to which the Hair and Beauty Bar is located and saw the scam signs on approach to a bay, had no wish to be bound by some notorious, unknown ex-clamper rogue parking firm, so the Defendant rejected the contract without parking and left the land. 

So I have removed references to parking on the main road- I only mentioned parking on the main road as this was suggested by coupon mad. 

The Defence is due today, so just want a final once over before I email to the court. 

skintbutwantstosave

Coupon-mad said:

Unless I missed it, I didn't see you respond to the allegation in the POC by denying being the driver and saying how you know it wasn't you.  Then you need to say what the driver did (my words will do).

The Defendant confirms the vehicle was used to collect food from a nearby fast food takeaway “Downtown” which is adjacent to the “Hair and Beauty Bar”. The Defendant confirms the vehicle entered the car park to which the Hair and Beauty Bar is located and saw the scam signs on approach to a bay, had no wish to be bound by some notorious, unknown ex-clamper rogue parking firm, so the Defendant rejected the contract without parking, left the land and instead parked on the public highway outside of Downtown.

I have added the above paragraph in my Defence, now I am confused with the other posters, saying it is irrelevant that I parked on the main road / non-relevant land. 

I just want to check that everything  have included is fine for me to send to court as the Defence is due to day.

Trainerman

If you are sticking with that, you need to change "to which the Hair and Beauty Bar is located" to at which. Personally I think " ...... confirms that the vehicle entered the car park by the Hair and Beauty Bar, but the driver having seen the signs...." etc would scan better. The vehicle can not see signs, nor have a reaction to them.

skintbutwantstosave

Trainerman said:

If you are sticking with that, you need to change "to which the Hair and Beauty Bar is located" to at which. Personally I think " ...... confirms that the vehicle entered the car park by the Hair and Beauty Bar, but the driver having seen the signs...." etc would scan better. The vehicle can not see signs, nor have a reaction to them.

The Defendant confirms the vehicle was used to collect food from a nearby fast food takeaway “Downtown” which is adjacent to the “Hair and Beauty Bar”. The Defendant confirms the vehicle entered the car park at which the Hair and Beauty Bar is located but the Driver saw the scam signs on approach to a bay, had no wish to be bound by some notorious, unknown ex-clamper rogue parking firm, so the Driver rejected the contract without parking and left the land.  

I also noted an error, re Defendant in the last sentence and have changed to state Driver instead. 

LDast

Can something or someone be both "notorious" and "unknown" at the same time? Why are you even mentioning "Downtown"? You are adding poorly thought out bits to the defence. What has the business "Downtown" got to do with the price of eggs in China?

What contractual terms does the claimant allege the driver breached in the PoC? They don't. You are answering the allegation in the PoC. You don't need to submit War and Peace in your defence, especially as you are using the CEL v Chan Preliminary Matter.

All that is left for you to do is state whether the defendant is the keeper, driver, both or neither. In the next paragraph the defendant can deny that the driver parked the vehicle at the location and the claimant is put to strict proof to show otherwise.

The rest of your story can be expanded on if/when the tme comes to submit your WS. There you can wax flowingly about what happened on the day.

skintbutwantstosave

LDast said:

skintbutwantstosave said:

LDast said:

skintbutwantstosave said:
They claim the car was in their car park, however the car was never parked there, the car turned around when they saw the signs that you would get fined for parking in the small car park which is basically a few parking spaces outside some shops in that tiny area. the car was actually parked on the main road

Their sign does not say anything about being "fined" so why do you insist on using that word? They are not pursuing you for parking on non-relevant land (the street). They are pursuing you for allegedly parking on their relevant land (private land). You are denying that.

So, they may have fully complied with the requirements of PoFA (I can't be bothered going back through the thread to check) and be able to hold the keeper liable. If they haven't fully complied with all the requirements of PoFA, then point out which requirements they have failed to comply with.

The fact that the driver parked on the road is neither here nor there as they are not claiming they parked on the road and therefore owe them a debt. Their claim is for the driver having allegedly parked on land they manage in breach of their terms.

The car was never parked on "their land", literally drove in and drove back out. 

Yes, we understand that. However, your para #6 states:

 The Claimant has failed to provide evidence that the vehicle was parked on relevant land pursuant to Paragraph 3 of Schedule 4 of POFA. The land outside Downtown is a public highway and pavement and  therefore cannot be considered as “relevant land” for the purposes of POFA. As such the Claimant does not have any right to recover any unpaid parking charges from the registered keeper of the vehicle.

They're not alleging that you parked on the public highway.

the section highlighted in bold i can remove, but the Defence is that the Driver never parked on their land and to help give context the vehicle was pared on the main road. Is it your view the section in bold should just be removed?

skintbutwantstosave

fisherjim said:

Why are you muddying the waters by even mentioning parking on the road, they haven't mentioned it why are you?

You drove in saw the terms and conditions, decided not to park and immediately left, no parking even took place.

And you need to stop using terminology that is neither quoted or applicable there is no "fine" stated on any PPC signage or paperwork (made up signs by shops don't count), if there was they would be in trouble.

I have amended the Defence as follows - appreciated your comments. Thanks 

 

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.

3.      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 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 Exhibit SA1) the Court should strike out the claim, using its powers pursuant to CPR 3.4. 

The facts known to the Defendant:

4.      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.  

No Keeper Liability

5.      It is alleged the Defendant as the registered keeper parked at the Hair and Beauty Bar on 20 August 2023. The Claimant has not provided any evidence to support the same, accordingly the Claimant is put to strict proof.

 

6.      The Defendant confirms the vehicle was used to collect food from a nearby fast food takeaway “Downtown” which is adjacent to the “Hair and Beauty Bar”. The Defendant confirms the vehicle entered the car park at which the Hair and Beauty Bar is located but saw the scam signs on approach to a bay, had no wish to be bound by some notorious, rogue parking firm, so the Driver rejected the contract without parking and left the land.  

 

 

7.      The Claimant claims the unpaid penalty charge notice from the Defendant as the driver/keeper. The Defendant  denies being the driver of the vehicle as she was a passenger. As the Claimant does not know the identity of the driver of the vehicle in question, it must be presumed that they are pursuing this claim against the registered keeper of the vehicle.

 

8.      The Protection of Freedoms act 2012 (“POFA”) Schedule 4 states that a creditor has the right to recover any unpaid parking charges from the registered keeper of a vehicle if the driver is not known.

 

9.      The Claimant has failed to provide evidence that the vehicle was parked on relevant land pursuant to Paragraph 3 of Schedule 4 of POFA. as such the Claimant does not have any right to recover any unpaid parking charges from the registered keeper of the vehicle.

 

10.  Parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases.

 

11.  Further, the registered keeper is not 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 this has been tested on appeal more than once in private parking cases and the following transcripts will be adduced in evidence:

 

(i)                    In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re: claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  His Honour Judge Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but did not. Mr Smith's appeal was allowed, and Excel's claim was dismissed.

 

(ii)                In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re: claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be held liable outwith the POFA and no adverse inference be drawn, if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  His Honour Judge Gargan concluded at 35.2 and 35.3. "My decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..."   Mr Edward's appeal succeeded and the Claim was dismissed.

Gr1pr

4 doesn't address the keeper part mentioned by Ldast earlier , needs fleshing out after RK as explained in the template defence paragraph 2

7 says Penalty, its not a penalty 

Check the whole thing for errors and fix them all, especially all the things you have been told about already 

fisherjim

".......but saw the scam signs on approach to a bay."

Personally I would remove the word scam, they are signs that are alleged to form a contract, calling them a scam to a judge isn't a good idea IMHO.

"The Claimant claims the unpaid penalty charge notice........"

Once again you are using words that are not there or applicable, the word "penalty" is not there is it?

skintbutwantstosave

LDast said:

skintbutwantstosave said:

LDast said:

skintbutwantstosave said:
They claim the car was in their car park, however the car was never parked there, the car turned around when they saw the signs that you would get fined for parking in the small car park which is basically a few parking spaces outside some shops in that tiny area. the car was actually parked on the main road

Their sign does not say anything about being "fined" so why do you insist on using that word? They are not pursuing you for parking on non-relevant land (the street). They are pursuing you for allegedly parking on their relevant land (private land). You are denying that.

So, they may have fully complied with the requirements of PoFA (I can't be bothered going back through the thread to check) and be able to hold the keeper liable. If they haven't fully complied with all the requirements of PoFA, then point out which requirements they have failed to comply with.

The fact that the driver parked on the road is neither here nor there as they are not claiming they parked on the road and therefore owe them a debt. Their claim is for the driver having allegedly parked on land they manage in breach of their terms.

The car was never parked on "their land", literally drove in and drove back out. 

Yes, we understand that. However, your para #6 states:

 The Claimant has failed to provide evidence that the vehicle was parked on relevant land pursuant to Paragraph 3 of Schedule 4 of POFA. The land outside Downtown is a public highway and pavement and  therefore cannot be considered as “relevant land” for the purposes of POFA. As such the Claimant does not have any right to recover any unpaid parking charges from the registered keeper of the vehicle.

They're not alleging that you parked on the public highway.

1.      The Claimant has failed to provide evidence that the vehicle was parked on the relevant land including the time period the vehicle was parked pursuant to Schedule 4 of POFA as such the Claimant does not have any right to recover any unpaid parking charges from the registered keeper of the vehicle, particularly where the vehicle did not park at the Hair and Beauty Bar.

is this better?