Claim form - parking defence content advice

Coupon-mad wrote: »

If it also referenced the same date and/or you only had ONE PCN, not several, then I think this is one of your main points of defence.

Its only when I looked at the notice in detail I spotted the date is different to the date of the initial PCN. I received no communication about an additional PCN? Still think this is the heart of a defence?

Good evening all.

How does this sound for a defence, been working with it a little while, basically any no no's in here?

....

I deny I am liable for the entirety of the claim on the following grounds.

Confused Communication

1) The defendant received a letter dated 23.02.2018 confirming the cancellation of a PCN for vehicle reference x at x, x. Up to this date The Defendant had only received communication from Civil Enforcement Ltd concerning a single PCN dated 06.01.2018. The Defendant understandably assumed the communication dated 23.02.2018 referred to the violation for the same vehicle at the same location dated 06.01.2018, as no other notification of a PCN had been received. Thus, subsequent threatening communications were not acted upon. It was only on the unexpected receipt of the Claim Form, the Defendant cross checked records and noted a discrepancy in the PCN number detailed on the communication dated 23.02.2018 and that of the PCN on the claim form dated 17.10.2018.


Figure 1: Supporting image for item 1)



Broader defence items


1) The Claim Form issued on the 17th October 2018 by Civil Enforcement Ltd was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is not a statement of truth. It states that it has been issued by Civil Enforcement Limited as the Claimant!!!8217;s Legal Representative. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

2) The claimant failed to include a copy of their written contract or any detail or reason for – non-clear particulars pertaining to this claim (Practice Directions 16 7.3 (1) and 7C 1.4 (3A refer). It is unclear as to what legal basis the claim is being made whether it be for breach of contract contractual liability, or trespass. However, it is denied the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant whether express, implied or by conduct.

3) Given the length of time, since the issue of the PCN, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car 10 months later. The burden rests with the Claimant to identify the driver, who is the only party potentially liable in cases where a parking firm is unable to rely upon the POFA. There are multiple people on the insurance policy for vehicle registration xxxx and other individuals, who drive this vehicle with third party insurance under their own insurance policies.

4) Henry Greenslade, lead adjudicator of POPLA in 2015 stated that !!!8220; However keeper information is obtained, there is no !!!8216;reasonable presumption!!!8217; in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort.!!!8221; Schedule 4 of the POFA 2012 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, and if there was a 'relevant obligation' and !!!8216;relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. The Notice to Keeper used by this Claimant is routinely worded in a way that can only hold a driver liable and/or the NTK will have been served outside the mandatory 14 day period set within Schedule 4 of the POFA. Whilst this is a choice a parking firm can make (effectively to serve a PCN document like those that existed pre-POFA), it means they can only hold known drivers liable, never registered keepers.

5) The Claimant has added sums to the original parking charge. The Defendant believes Civil Enforcement Ltd has inflated this claim with detailing ‘debt + damages’ as £236.00 subsequently referred to as a parking charge with an additional £14.64 in interest. The addition of £25 in court fees and legal representatives cost of £50 (please refer item 2 in this document) bring the claim total to £325.64. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. The claimant has not explained how the claim has increased from the original parking notice to £325.64. If the Claimant alleges that they claim the cost of its in-house administration, these cannot be recovered - they are staff performing the task that they have been employed for and essential to the Claimant's business plan.


6) The Defendant recently visited Cxxxx car park to investigate the signage and layout. The car park at xxxxxis L shaped and is accessed by a steep single entrance/exit which is often congested with both pedestrians and vehicles. The entrance leads to Quay access along which there is parking and around the sea wall to the left as you enter the car park there are two rows of parking spaces cusped surrounded by restaurants and pubs. There is also a large homewares/hardware store ‘xxxx where customer and trade vehicles stop to load there goods into vehicles from the ground floor entrance. It is a busy town centre car park. On visiting the car park it became clear that should a car, van, SUP, or larger commercial vehicle waiting to exit the car park (so to turn right) or manoeuvring to reverse close to the exit of xxxxx, the vehicle would obscure the signage to vehicle entering from the top of the slope to the car park. It was also noted the lighting around the signage and pay and display machines is minimal. A further point on signage is that the font for the terms on the Claimant’s signage are displayed in a font which is too small to read by a passing vehicle, and is in such a position that anyone attempting to read is unable to do so easily, It is, therefore, denied the Claimant’s signages is capable of creating a legally binding contract. Please see image below.

Figure 2: Image to support item 6

7) This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as it can be ascertained, based upon the vague particulars of claim, it seems reasonable to assume the driver of the vehicle did not see the signage as it would have been dark at the time of the incident (Saturday 16:46 on 6th January 2018) and it can reasonably be assumed this central town car park would have been busy with shoppers, and vehicles over the January sales period. The defendant believes this distinguishes this case from Parking Eye vs Beavis [2015] none of this applies in this material case (please refer to item 6 and associated image).

8) The Claimant is put to strict proof that it has sufficient proprietary interest in the land or the necessary authorisation form the landowner to issue parking charge notices, and to provide payment by means of litigation.

9) In summary, it is the Defendants position that given confusion arising from communications from the Claimant regarding cancellation of a PCN, the vague nature of particulars of claim, lack of transparency regarding the original of claim totals, inadequate signage, signage location and lighting and the fact the driver of the vehicle at this time has not been identified, the Court is invited to strike out this case under its own initiative using its case management powers pursuant to CPR3.4

I believe the facts in contained in the Defence are true:

Name:

Sign:

Date: