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SCS Law Letter before claim for multiple PCNs-over £1000!!

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  • DiegoFuegoDiegoFuego Forumite
    46 Posts
    Fourth Anniversary
    Hi all

    I have finished my final defence draft.

    I also noticed the close up of the sign they sent me states the charge to £90 and they have claimed £100! So I have added that to my defence.

    Importantly, my defence is now too long to submit directly to the MCOL website. Is there another way of submitting it? Email perhaps?

    My defence is below:

    1. The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :

    i. The Claimant has no standing to bring a case
    ii. The Claimant has no capacity to form a contract with the motorist
    iii. The signage did not offer a genuine contract with the motorist
    iiii. Even if a contract could be formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations
    v. The Claimant has no Cause of Action
    vi. Even if a debt existed, it would be due to the land-owner, not the Claimant
    vii. The Claimant has misrepresented its day-to-day business costs as a loss
    viii. The Claimant has included a solicitor charge that was not incurred
    Due to any combination of the above points, the Claimant has no case and the Defendant invites the Court to strike the matter out.

    2. The Claimant manages the car park. The Claimant is not therefore the Land-owner. Neither has it claimed to be an Agent. The Defendant has the reasonable belief that it is merely a contractor. The Claimant has not therefore explained what authority it has to bring the claim. The proper claimant is the landowner.

    3. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

    4. The Defendant is aware that the Claimant relies on ParkingEye v Beavis. The Defendant submits that the present case can be distinguished for two reasons:

    • It was established that ParkingEye paid a premium of £1000 per week to operate at the site. This was ruled to give them standing as Principal. In the present case they are acting as an contractor to the land-owner
    • In the Beavis case there was also a clear chain of command between the land-owner and ParkingEye established by the production of original copies of the contracts

    ​If the Claimant wishes to rely on Beavis, the Defendant is put to proof that such a ​contract exists and of its content.

    Also the Claimant has claimed that “ParkingEye v Beavis” confirms that any amount will be recoverable provided it is proportionate to a legitimate interest” which is not true. The Beavis case found that the sum of £85 in that case alone, with the particular signage and adequate notice in that case, was not a penalty.

    5. As this case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.


    6. If the driver happened to see the signage (if any were present) on each occasion, signs are located at a distance in pale, unlit and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. The signs do not comply with BPA Code of Practice.


    7. Such is the density and complexity of the text on the sign that the most onerous term – the parking charge – is buried amongst a mass of small print and does not comply with Denning MR’s “Red Hand Rule”


    8. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.


    9. The claimed contract that the Claimant has provided to me is a close up of a sign which contains a charge for £90 only. Therefore there is no evidence of any sign creating a contract to pay £100 for any contraventions as claimed.


    10. The Defendant further asserts that the Claimant has ignored the Government’s clear intention as expressed in the Department for Transport Guidance on the Recovery of Parking Charges :

    Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken.
    For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

    11. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was recently investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis. The Claimant is put to proof that the photographic evidence it has is accurate and true and that any and all previous correspondence has been sent to the Defendant as claimed.


    12. Due to the length of time, the Defendant has little to no recollection of the days in question. Due to the Claimant’s history of lack of compliance with regulations, the Claimant must prove that it has fully complied with the strict requirements sent out in POFA 2012 Schedule 4. As the Defendant is the registered keeper of the vehicle, these regulations must be complied with in order to hold the keeper liable.


    13. The POFA restricts liability to the sum of the parking charge itself and the BPA Code of Practice has a ceiling of £100 which at the time, made it a condition that any charge issued must be based upon a GPEOL, the amounts claimed are excessive and unconscionable. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £60 to each PCN and that those sums formed part of the contract in the first instance.


    14. The Claimant has not complied with the pre-action protocol under the Practice Direction as a compliant ‘Letter Before County Court Claim’ was not issued. Despite repeated attempts by the Defendant to receive a compliant letter, one was not sent before court proceedings were started.


    15. The Particulars of Claim submitted by the Claimant is not compliant with the Practice Directions. The Claimant has not attached the contract(s) it wishes to rely on that it alleges were in place at the time. The Claimant has not clarified whether it is seeking keeper liability and has not attached any confirmation that is has gone through the necessary steps to do so. The Claimant has not clarified if there are any amounts claimed over and above the initial charge and on what basis they are being claimed.


    16. The POFA 2012 Schedule 4 states that before seeking keeper liability, the Claimant must demonstrate that there was a “relevant obligation” either by way of breach of contract, trespass or other tort. The Claimant is put to strict proof that the “relevant obligation” existed and that the correct procedure was followed to transfer liability to the registered keeper.


    17. The legal costs are not justified additionally it would have been factored within the additional £60 charge thus claiming again would be considered double charging creating financial gain.


    18. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
  • edited 3 November 2016 at 9:32PM
    Coupon-madCoupon-mad
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    edited 3 November 2016 at 9:32PM
    I also noticed the close up of the sign they sent me states the charge to £90 and they have claimed £100!

    Great - we've seen that before, well spotted in time for your defence! :j

    Remove anything saying there was 'no loss' as I already warned you, don't go there:
    ''No, you will not be able to argue 'GPEOL' re a retail park overstay because that was exactly the situation Mr Beavis found himself in. IMHO (and I'm only an armchair lawyer of course!) only in a case where the contract is completely different and more simple (e.g. an unpaid parking tariff) can it feasibly be argued that the charge is wholly disproportionate to the tariff. Beavis killed the GPEOL argument for parking overstays, in general terms.''

    So delete this:
    vii. The Claimant has misrepresented its day-to-day business costs as a loss

    and delete the bit I have crossed out here but keep the rest:
    13. The POFA restricts liability to the sum of the parking charge itself and the BPA Code of Practice has a ceiling of £100. [STRIKE][STRIKE]which at the time, made it a condition that any charge issued must be based upon a GPEOL, the amounts claimed are excessive and unconscionable[/STRIKE][/STRIKE]. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £60 to each PCN and that those sums formed part of the contract in the first instance.

    and delete ALL of this as the Beavis case has stopped this as an argument:
    10. [STRIKE]The Defendant further asserts that the Claimant has ignored the Government’s clear intention as expressed in the Department for Transport Guidance on the Recovery of Parking Charges :

    Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken.
    For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver[/STRIKE].


    I would add some weight to this:
    17. The purported 'legal costs' are not justified additionally it would have been factored within the additional £60 charge thus claiming again would be considered double charging creating financial gain. It is worth pointing out that Mr Beavis was only required to pay £85, the sum on the PCN and signs and no more. To add extra costs is contrary to the CPR and against the POFA Schedule 4: ''Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery)''.



    There is a third point you can add to distinguish this case from the Beavis case:
    • Mr Beavis was an admitted driver who accepted that he had seen the signs and that a contract existed. None of those facts match this matter.


    I would make this point stronger:
    12. Due to the length of time, the Defendant has [STRIKE]little to[/STRIKE] no recollection of the days in question, which were unremarkable. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car some years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.


    And I would put an extra numbered point under the '16 - relevant obligation' one:
    The POFA 2012 Schedule 4 states that before seeking keeper liability, the Claimant must demonstrate that there was a “relevant contract”. The Claimant is put to strict proof that a “relevant contract” existed to pay £100 and that there was (as defined in 2(3) of the statute) 'adequate notice' of that sum and legible terms.


    Finally re this question:
    Importantly, my defence is now too long to submit directly to the MCOL website. Is there another way of submitting it? Email perhaps?

    http://forums.moneysavingexpert.com/showthread.php?p=71507898#post71507898

    Bargepole recommends a formal document in Times New Roman font size 12, double line-spaced, formatted with numbered paragraphs and pages, with headings - finally, signed/dated then posted to Northampton. Keep proof of posting.

    If you are running out of time you can email it as a PDF attachment (formatted, double line-spaced, numbered document, printout out then signed and dated by you, then scanned). And then on Monday, phone the court to make sure they have not got a huge email backlog, that they have logged it as a defence to put your mind at ease. As explained by HO87 here:

    http://forums.moneysavingexpert.com/showthread.php?p=71113431#post71113431

    :)
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  • DiegoFuegoDiegoFuego Forumite
    46 Posts
    Fourth Anniversary
    Hi all

    Just to update. I have sent in my defence and it's been logged so I suppose it's a waiting game right?

    I asked about info requests and 'part 18' before. Is that something I should be pursuing?

    Thanks
  • DiegoFuegoDiegoFuego Forumite
    46 Posts
    Fourth Anniversary
    Hi all. Looks like my case has been brought back to life. I received a letter from scs law saying they will continue with the case. I have also received a letter from the court with a form called 'Notice of proposed allocation to the small claims track' and a 'Directions Questionnaire'.

    I have not a clue how I am meant to fill these out. Anyone with experience on what to do and what my next steps are to give myself the best chance of a good outcome please?

    Many thanks
  • DiegoFuegoDiegoFuego Forumite
    46 Posts
    Fourth Anniversary
    Is there anyone that can help?
  • edited 13 December 2016 at 9:04PM
    QuentinQuentin Forumite
    40.4K Posts
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    edited 13 December 2016 at 9:04PM
  • I have been monitoring this thread hoping there is some resolution as I am becoming close to being in the same boat, I cannot believe it has gone on for this long and mounted up so much. I am near this much and getting all sorts of demands through collectors.


    I have been in touch with the owners of the land but yet they all seem to be in each others pockets.......even the company ads state "want to make money on your private land?" which is a joke......residents getting robbed through a system that can be exploited.


    you should sue for undue stress.
  • edited 13 December 2016 at 9:03PM
    QuentinQuentin Forumite
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    edited 13 December 2016 at 9:03PM
    You wait for the DQ from the court and this is how you fill it out. If the DQ does not arrive within a week, check with the court.
    The OP has received the DQ! (#65)


    OP - follow the advice to read up in this thread: http://forums.moneysavingexpert.com/showthread.php?t=5546325 (covers the DQ as well there)
  • SystemSystem Forumite, Community Admin
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    Quentin: Your link does not work which is why the text was added. Neither #70 or #67.
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