Parking & Property (IPC) -> Gladstones -> Court

As a counterclaim - Can I invite the court to cancel another car PCN?

Received NTK and letters are refer to Independent Parking Committee's Code of Practice.
Meanwhile it was renamed to The International Parking Community in 2016 so it is The International Parking Community code of Practice now.
Can I use this confusing issue in my defence somehow?

a. No entrance sign from XXXX rd. about entering into private land.
b. No sign around used car park space, which display the full terms and conditions.

In the County Court Business Centre
Claim Number: ___

Between:

Parking & Property Management Ltd (Claimant)

v

___(defendant's name) (Defendant)

DEFENCE

Preliminary

1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to fully engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation. The Claimant failed to respond to the Defendant's letter dated 20th February, asking for more evidence, and merely proceeded to issue a claim.

Background

3) It is admitted that at all material times the Defendant is the registered keeper of the vehicle which is the subject of these proceedings.

4) It is admitted that on the material date, the Defendant's vehicle was parked at the location stated.

5) The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver.

5.1. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (the 'POFA').

5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 of the POFA, a private parking operator must demonstrate that:

5.2.1. there was a 'relevant obligation' and/or 'relevant contract' formed with the driver, and

5.2.2. there was 'adequate notice' of the terms and the parking charge itself, on prominent signs in large lettering displayed clearly at the place where the car was parked, and at the entrance, and

5.2.3. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is 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.

6) It is denied that any "parking charges, damages or indemnity costs" (whatever they might be) as stated on the Particulars of Claim are owed. The alleged debt is denied in its entirety.

7) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely putting up parking signs and issuing letters on behalf of the true landowner. The Claimant is put to strict proof.

7.1. It is not admitted that the Claimant has contractual or other lawful authority to make contracts, specifically by offering parking to non-permit holders at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof.


Failure to set out clearly, or offer parking terms to non-permit holders

8) The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

9) The Defendant avers that the parking signage in this matter was inadequate and no consideration flowed between the driver and the Claimant.

9.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;

9.1.2. The signage did not comply with the requirements of the Code of Practice of the International Parking Community's ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

9.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the driver, as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

9.2. In this case neither the Claimant, nor their principal, the landowner, is offering anything to motorists who do not have a permit. The Defendant avers that the sign - in fact, not seen by the driver due to hidden placement and lack of lines - creates a prohibition against parking on the roadway without a permit. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Driver.

9.2.1. The above point was tested in the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016), where District Judge Glen dismissed all three claims, stating in his judgment that: ''All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.''

9.3. Even if the Court finds that a non-permit holder should have seen a sign and was a trespasser, this is a matter of tort whereby (as confirmed in the Beavis case and also by the 2012 Guidance Notes relating to Section 56/Schedule 4 of the POFA) only the landowner themselves would be potentially able to pursue damages. In Beavis, this was because ParkingEye Ltd were not in possession and thus unable to pursue damages, one of the same difficulties this Claimant faces, yet they lack the 'legitimate interest/commercial justification'reasoning that disengaged the penalty rule for ParkingEye, given the unusual and case-specific facts in the Beavis case.

10) This operation at this location is predatory, with hidden/small signage designed not to be seen, in order to penalise unsuspecting drivers rather than offer a clear contract to park at a price. The charge is unconscionable and unfair in this context, with ParkingEye v Beavis fully distinguished.

11) The concept of the fairness of a contract must be considered in every case (Consumer Rights Act 2015) and was considered by District Judge Iyer in Pace Recovery v Lengyel, case C7GF6E3R, on 24 May 2017. The Judge held that 'the concept of fairness requires the parking firm to comply with the requirements of the relevant code of practice' which the parking operator had not; the same difficulty this Claimant faces.

11.1. The transcript of the decision in Pace v Lengyel will be provided to the Court, since it is on all fours with this case in several other respects too, including:

i. the Judge's findings that the Claimant could not make contracts with drivers, and

ii. that there was no contract possible with a non-permit holder in any case, so any purported contract was invalid under the doctrine of impossibility of performance, and

iii. the signage was inadequate, and

iv. such a claim against a non-permit holder might have been more properly phrased in trespass, but that was not the Claimant's case and they were not the party in possession of the land.

12) It is denied that the Claimant has any entitlement to the sums sought and it is denied that interest is applicable on the total sums claimed by the Claimant, which bear no relation to the maximum sum potentially able to be recovered from a registered keeper, as set out in the POFA, namely the sum stated in the Notice to Keeper.

13) The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

14) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.


Signed...........................


Date.....................