HX CPM Non POFA compliant and citing Elliot v Locke

Issue Date: 8th April 2019
From: CCBC Northampton
AOS: Acknowledged online: 16th April 2019

"The claimant claims £100 for the PCN. £60 contractual costs pursuant to the Contract and PCN terms and conditions, together with statutory interest of £10.14 pursuant to s69 of the County Courts Act 1984 at 8% per annum continuing at £0.04 per day.


Amount Claimed £170.14
Court fee £25
Legal representative costs £50
Total Amount £245.14"

Here's a first draft of the defence...


1.The defendant was not the driver of the vehicle for the period in question of the alleged parking contravention.

2. The claimant (HX Car Park Management Limited) has not identified the driver nor provided photographic evidence of the driver despite being asked to do so.

3. The vehicle can be driven by anyone legally insured to do so therefore the stated assumption that the defendant was the driver for the period in question is erroneous.

4. The identity of the driver of the vehicle on the date in question has not been ascertained. The defendant does not know who the driver was. She has made reasonable enquiries of third parties who were authorised to drive the said vehicle at the time of the alleged incident. None have admitted that they were the driver because they cannot remember, and the defendant cannot remember who used the car on the date in question. She does know that she has not used the car park in question herself. The Defendant has no means of finding out who the driver was, and in any event is not obliged to do so by the Protection of Freedoms Act 2012 (PoFA) or any other legislation, or pursuant to any contractual obligation.
As the registered keeper of the vehicle the defendant has requested from the claimant evidence regarding the alleged contravention and evidence of the identity of the driver.
No further evidence has been forthcoming but rather Gladstones Solicitors, representing the claimant, has written to the defendant (6.12.18 and 2.1.19) and implied that the defendant is responsible to “provide proof” as to who the driver was (or was not). The burden of proof does not rest with the defendant.

5. With regard to the Claimant’s assertion that the Defendant, as keeper of the vehicle, should be presumed to be the driver unless he sufficiently rebuts this presumption, which it claims is a principle established by Elliott v Loake 1983 Crim LR 36, I dispute it for the following reasons:
The case relied upon does not provide that any such presumption can or should be made, nor that it is for the Defendant to rebut it. A claim is for the Claimant to prove and there is no reverse burden of proof in respect of parking charges; in addition the case was a criminal case.
In the case relied upon (Elliott v Loake 1983) there was overwhelming evidence that the keeper of the car was driving it at the relevant time – there is no such evidence in this Claim.

6. To be liable as the “Keeper” of a vehicle under paragraph 4(1) of Schedule 4 to the Protection of Freedoms Act 2012 – PoFA (“the Act” and “the Schedule” respectively), paragraph 4(2) of the Schedule clearly states that this is only if each of the four conditions set out in paragraphs 5, 6, 11 and 12 of the Schedule have been complied with. Furthermore there is a failure to comply with other paragraphs notably including, though not exclusive to, paragraph 9. The original Parking Charge Notice is not a valid Notice to Keeper served in accordance with Schedule 4 PoFA 2012 and therefore the defendant cannot be held liable as the registered keeper of the vehicle in question. The claimant throughout has recognised this stating; “we do not have to comply with POFA in regards to issuing tickets” (letter from HX Car Park Management Ltd. 23.5.18). Having failed to comply with the conditions set out in PoFA Schedule 4, there is no legal basis whatsoever to enforce the parking charge against the defendant as the vehicle’s registered keeper. There is no other basis, in common law or by statute, for the defendant to be held liable for the parking charges which are the subject matter of this Claim

7. The claimant has failed to follow its binding Code of Practice issued by the IPC; the defendant was not the driver; it is not common ground nor established that a contract was agreed; the claimant has never stated that “the creditor does not know the name and address of the driver”

8. The claimant’s signage specifically cites the driver as with whom a contract is agreed. The registered keeper in this case was not the driver and no evidence has been forthcoming to suggest otherwise.

9. The claimant’s letters to the defendant (6.4.18 and 23.5.18) have again specifically cited the driver of the car as the liable party.

10. As this alleged contravention occurred in April 2018, it is unreasonable of the claimant to assume that it can be recalled who was the driver at the time.

11. If a valid contract exists, the parking charges sought amount to a penalty which is unenforceable and is an unfair term contrary to the Consumer Rights Act 2015.

12. The claimant cannot show any loss, as the car park as mentioned is sparsely populated on an evening when the supposed contravention occurred and so would have sufficient spaces to accommodate any vehicle during the time period in question.

13. No evidence has been provided to the defendant that the vehicle was actually parked at the time of the alleged breach of contract. There are two photographs which purport to show the defendant’s car entering and leaving a car park with a time lapse between the two photographs of 21 minutes. Despite requests for all photographic evidence no photographs have been produced of the vehicle being parked in a designated parking space to which the signage appears to relate to.

14. The Particulars of Claim and indeed the original PCN disclose no exact breach of contract. Instead it has been vaguely stated; “the charge having been incurred for No [sic] payment registered for the above vehicle” (6.4.18) and “you did not pay & display or did not enter the correct registration number” (23.5.18). The registered keeper has therefore been offered three alternative alleged breaches of contract by the driver. The PCN and subsequent letter from the claimant do not clearly specify therefore the “circumstances in which the requirement to pay them arose”. There is therefore a breach of the International Parking Community (IPC) Accredited Operator Code of Practice. In addition there is no valid Notice To Keeper which is compliant with the conditions set out in Schedule 4 of PoFA, as detailed above.

[FONT=&quot]15. The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.[/FONT]


16. The costs on the claim are disproportionate and disingenuous:
CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

Whilst quantified costs can be considered on a standard basis, this Claimant's costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Two letters received from Gladstones Solicitors were a standard feature of a low cost business model. ParkingEye v Beavis [2015] ruled that Claimants are the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.

The Claimant cannot reasonably recover an additional (partially invented) £145.14 in damages or costs to pursue an alleged £100 debt. The PoFA states that the maximum sum that may be recovered is the charge stated on the Notice to Keeper, in this case £100 (this sum also being the ceiling allowed by the BPA) and thus £100 is the maximum sum potentially recoverable under contract, regardless of whether the illegible small print on the signs attempted to bolt on a further sum (this is not known, but is a common trick by this industry).

Even the purported 'legal costs' are made up out of thin air. No individual Director or solicitor has signed the Particulars of Claim - in breach of Practice Direction 22, and rendering the statement of truth a nullity - and this template roboclaim has clearly had no input from any supervising Solicitor, whether in house or externally. 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 costs allegedly incurred by already remunerated clerical staff.

In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

17. The defendant intends to cite the following County Court Judgments to support their defence: C3DP56Q5Excel versus Lamoureux 2016; C1DP0H0J VCS versus Quayle