Pcn small claim but no defence

Let's see if we can get this thread back on track.

The OP asked for a critique of the Defence. BTW, it should be headed 'Defence', not 'Defence Statement'. Some paras are written in the First Person, and others in the Third Person. it should all be in the Third Person, as in 'the Claimant', 'the Defendant', etc.

In my opinion, this type of defence is doomed to fail. It says absolutely nothing about the incident which gave rise to the issue of the PCN, and is clearly a 'technical' defence copied from internet templates, which most Judges will have seen many times before.

It needs an introductory paragraph or two, either stating what happened when the car was parked (if the keeper was driving, or was present in the car), or else an alternative version stating that the keeper was elsewhere at the material time, and only has a hearsay account from the person who was driving.

Most Judges like to establish the facts before considering any legal arguments.

Thank you so much Baregpole & Coupon-mad, this is what i was looking for eg some direction on defence.

Before I redraft the defence can I ask a couple of questions? Sorry if they sound daft.

1) Should I defend as Keeper or Driver? is one any stronger than the other? Eg if defending as Keeper - is this where POFA and No Keeper Liability can be argued?

If defending as Driver, is this where grace period argument can be used?
Im assuming right or wrong that you don't use both arguments. Eg you cant say you don't know who was driving that day because it happened so long ago and then go on to argue that the overstay didnt include the grace period of getting in and out of the said carpark.


2) Have you heard of any incident where the defendent sends in their defence and the claimant doesn't bother to take it further? Or is this it? BW filed Claim papers and that means i definitely have to go to court with or without a strong defence.

Thank you to all who made suggestions to look up the various defences that can be used in answering this small claim.

I believe the redrafted defence below covers your suggestions (to the best of my ability) and would like to ask if the forum believes this to be so.

I've also read various defences on this site to help with this one. All appear to have a strong defence because they have what looks to be strong grounds for it, eg a disabled person, or a blue badge holder, or a person parking in front of their own property, or parking at a motorway service station, or a dirt track, or a no parking at any time area and so on.

To quickly reiterate the original incident, this was an alleged overstay at a retail car park back in 2015 in which I believe ANPR was used (but cannot remember).

I have since googled the said car park and there are several large blue signs (one upon entry) scattered around the car park (up lamposts) at various intervals between spaces (possibly negating defence 4)

Signage now says 3 hours free parking, it was orignally thought that it was 2 hours.
Whether these are the same signs and the same 3 hr free parking as in 2015 I cannot confirm nor deny because all correspondence was discarded (negating POFA defence below) following advice to ignore them save two of the most recent letters which are:

"Notice of pending county court claim" dated Dec 17, and, "Notice of county court claim" dated Jan 18)..which negates argument 2 below.

No correspondence has been entered into by the keeper of the vehicle and the claimants or the claimants' representatives.

I appreciate reading defences takes up a lot of time but I would be very grateful if it could be skimmed over and any feedback offered.
Thank you in advance.


**********************************************************************************************************************
In the County Court Business Centre

Claim Number: XXX

Between:

Vehicle Control Services Ltd (Claimant)

-and-

XXX (Defendant)


DEFENCE



I, the defendant, am the registered keeper of the vehicle in question at the time of the alleged incident at XXX Retail Park in XXX when the Parking Charge Notice (PCN) was issued. I assert that I am not liable to the Claimant for the sum claimed, or any amount for the following reasons:

No Contract.

1) The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) which states: a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim. No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which states:

1.1) If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges.

1.2) In order to issue parking charges and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. It is believed Vehicle Control Services Ltd does not hold a legitimate contract at this car park.
As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner. Furthermore, no evidence of such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof of the same, in the form of an unreacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. A Managing Agent is not the Landowner.

1.3) The Claim Form issued on XXX by BW Legal was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “BW Legal”.

Non Compliance with Practice Direction 16.

2) The Particulars of Claim (PoC) do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).
The PoC did not contain any evidence of contravention or photographs. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct.
This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction.
On the basis of the above the defendant request the court strike out the claim for want of a cause of action. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

2.1) Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
2.2) A copy of any contract it is alleged was in place (e.g. copies of signage)
2.3) How any contract was concluded (if by performance, then copies of signage maps in place at the time)
2.4) Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
2.5) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
2.6) If charges over and above the initial charge are being claimed, the basis on which this is being claimed
2.7) If Interest charges are being claimed, the basis on which this is being claimed.

Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

No Grace Period.

3) The PCN was issued for an alleged overstay. The Claimant, who is the member of the British Parking Association (BPA), has failed to comply with Claus 13 of the BPA’s Code Of Practice’s General Condition with regards to grace periods that state:

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

The defendant does not believe that the Claimant allowed a sufficient amount of time that could be deemed “a reasonable grace period” to enter and exit said carpark.

No Clear Signage

4) It is denied that there was a contract made between the Claimant and the driver through signage.
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 the defendant can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage ‘contract' that was in place a the time of the alleged incident, none of this applies in this material case. Therefore, in the absence of any proof of adequate signage that contractually bound the Defendant, there can have been no contract and the Claimant has no case.

Non Compliance with POFA, Schedule 4.

5) The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.
It was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who clarified the fact that a registered keeper can only be held liable for parking events on private land if the parking operator fully complies with the POFA, Schedule 4, and not by presumption or any other legal argument.

6) The defendant submits that they were not afforded any method by which to appeal, nor any information about complaints procedures to the landowner. This omission prevented the defendant from being able to get this charge cancelled by the Retailer, a right that the defendant believes existed as an exemption clause for shoppers written into the landowner contract/retailer user manual but a material fact which is withheld from consumers.
If the defendant could have appealed to POPLA or had been informed that the Retailer/landowner could deal with such complaints and cancel charges, they would have done so.

7) Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.
However, the Claimant’s representatives, BW Legal, have artificially inflated the value of the Claim from £100 to £245.42. The defendant submits the added costs have not actually been incurred by the Claimant; these are figures plucked out of thin air and applied regardless of facts, as part of their robo-claim litigation model, in an attempt at double recovery, circumventing the Small Claims costs rules.
Further, BW Legal appear to be in contravention of the Solicitors’ Regulation Authority Code of Conduct.

8)The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

9) In the event the claim progresses, then as an unrepresented litigant in person, the defendant reserve the right to alter, vary and add to this defence or reply to any further particulars of claim/documents the Claimant may provide.

I believe the facts contained in this Defence Statement are true.

Signed

Registered Keeper/Defendant

Date XXX