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County court business centre *Defence Draft written*
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Done, thank you Coupon-mad.0
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I think #7 and #8 need swapping, as you talk about 'no boundary' before you even tell the Judge what the PCN is about.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Swapped 7 and 8 as suggested, thanks.
Is there anything else recommended?
IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN:
Euro Parking Services LTD (Claimant)
-and-
xxxxxxxxxxxx (Defendant)
________________________________________
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date at the Lidl/Travelodge car park, Postcode XXXX, for a period of approx. 30 minutes.
3. The Particulars of Claim state that the Defendant XXXXX was the registered keeper and/or the driver of the vehicle XXXXXX. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct. 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.
5. It is denied that the claimants signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. Upon a subsequent visit to the site it is apparent that the Claimants signage was deficient in quantity with terms displayed in a font which is too small, include statements open to misinterpretation and are in such a position that anyone attempting to read the tiny font would be unable to do so easily.
It is, therefore, denied that the Claimants signage is capable of creating a legally binding contract.
6.Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed. The sign wording states that Lidl customers: 90 minutes maximum stay whilst you remain on the premises this is unclear, ambiguous and fails the red hand rule; as set down by Lord Denning or the test set in Thornton v Shoe Lane Parking. The signs in ParkingEye v Beavis were clear and unambiguous unlike the claimants. Therefore, drivers would have little knowledge of these hidden terms.
7. The claimants Notice to Keeper indicates the Reason for Issue as Parking for Patrons whilst on the premises only. The claimant is put to strict proof to demonstrate with video or photographic evidence that the occupant(s) of the vehicle crossed a clearly defined boundary of the premises.
8. The signage does not demonstrate a map/boundary line or clear definition of the premises. The IPC code of Practice, of which the claimant is a member, states on this point:
2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.
9. Should the claimant rely on the case of ParkingEye v Beavis, the defendant wishes to point out that there is a test of good faith.
Para 205: The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.
10. Underlining that is Section B.2.1, B.2.2 of the IPC Code of Practice which gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
2.1 Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.
2.2 Signs must conform to the requirements as set out in a schedule 1 to the Code
11. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.
12. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.
13. If in the alternative it is the claimants case that his claim is founded in trespass (which is in any event denied) then in a car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis.
14. That the amount demanded is therefore excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
15. In summary, it is the Defendants position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.
I believe the facts contained in this Defence are true.
Name
Signature
Date0 -
Good evening
Quick question, with regard to my defence.
I have read differing advice with regard to quoting other cases, some recommend it to be done and others have stated its poor form for a defence.
And so I ask what is the best advice?
I have read bargepoles thread regarding writing a concise defence but also read that you should mention anything you will later use for WS/SA.
Apologies if Im overthinking this.
Thanks0 -
I'd follow bargepole - he is the most experienced, legally qualified in private parking cases. Coupon-mad is always to listen to, but others (I include myself), despite best intentions, are mainly offering personal views. Most of us will be there or there abouts, but reading/taking the main peoples' advice should be your priority.
Hope that doesn't cut across any of the other regulars - apologies if it does, my views are put forward in good faith to help the OP see his/her way through this maze!
Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Furrydog1313 wrote: »Good evening
Quick question, with regard to my defence.
I have read differing advice with regard to quoting other cases, some recommend it to be done and others have stated its poor form for a defence.
And so I ask what is the best advice?
I have read bargepoles thread regarding writing a concise defence but also read that you should mention anything you will later use for WS/SA.
Conventional practice, as taught in law school, is that a Defence should be a concise summary of the facts and legal arguments you rely upon, and either admitting or denying the various elements of the Claimant's particulars.
When the case is transferred to the local court, this is the first time that a Judge will look at it, and all he needs to see is that you have an arguable defence, he doesn't need all the detail. This Judge will issue directions for the hearing, which usually includes a direction that both parties must file and serve witness statements, with supporting evidence.
So, for example, in your Defence you have put "6.Further it is trite law that a term that is forbidding cannot also constitute an offer. It is therefore denied that any contract was formed or was capable of being formed." That establishes that point.
In the WS (or Skeleton, if so advised) you can expand on this with something like:
"As asserted in para [6] of my Defence, the Claimant's signage at the material location made no offer of parking, but attempted to impose a contractual charge based on a prohibitive term. There was no offer of parking made in consideration of payment, and in the absence of offer and acceptance, no contract can be construed. The only remedy available would be a claim for damages under a tort of trespass, which could only be issued by the landowner, and in any event is not pleaded by the Claimant. This reasoning is supported by the persuasive Judgments in PCM (UK) -v- Bull & Ors, and in UKPC -v- Masterson, for which the transcripts are appended to this statement"
This does not raise a new argument; it simply fleshes out the point already made in the Defence.
But bear in mind that County Court decisions are only persuasive and not binding on another Judge, so you would need to establish the similarities with those cases, to suggest that your Judge should reach the same conclusion.
I have been providing assistance, including Lay Representation at Court hearings (current score: won 57, lost 14), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and have a Graduate Diploma in Civil Litigation from CILEx. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.0 -
Thank you for the clarification,
With that in mind would it be practical to amend in the following way:
Trim Paragraph 6
Remove Paragraph 8, 9 and 10 as these can be referenced in the WS relating to paragraph 5 (signage)
And regarding the issue of patronage is there a need at this point to reference that as I understand there would be a direct bearing on the case of trespass?
Thank you0 -
Good evening
Could someone kindly cast an eye over what I have written so far to let me know I am on the right track for compiling a witness statement, I'm not 100% sure about the level of detail I need to include, specifically around the POFA 2012 section?
Is it simply a mention of non compliance of the NTK with regard to POFA and to attach the schedule or detail as I have done in the interest of being open and honest with no intent to ambush as such?
I understand there is more work to be done so it basically is a yes you are on the right track or no too much detail.
Does there need to be a statement around the driver?
Thanks in advance, WS example below:
I intend to defend based on:
i) Signage, IPC code 2.1 of which EPS is a member, beavis,evidence para 205, trite law, evidence of signs, aerial view, no signs in area parked,
ii) POFA NTK, non compliant, maximum sum, required authorisation, no evidence shown of leaving site
iii) PoC non compliance
1. I am xxxxxxxxxxxxxxxx, the defendant in this matter. I will say as follows:
2. I am the registered keeper of a xxxxxx.
3. On the xxxxxxxxxxxx the vehicle was parked on the Lidl/Traveldoge Car park with the postcode reference ST5 2RS. A purchase was made in store and the receipt is evidenced as Exhibit 1.
The signage:
4. A bundle of paginated documents, evidenced as Exhibit xxx, demonstrate the signage
photographed upon visiting the site. The signage photographed is that of the entrance
and that around the car park as well as an aerial view sourced from Google Street maps where I have indicated positioning of such signage.
5. The entrance sign can be seen on the opposite side of the road to the driver and upon the approach to the car park is a pedestrian crossing, there have been additional signs placed upon the site demonstrated by a subsequent visit in November 2018 (photograph)
6. As asserted in para [6] of my Defence, the Claimant's signage at the material location made no offer of parking, but attempted to impose a contractual charge based on a prohibitive term. There was no offer of parking made in consideration of payment, and in the absence of offer and acceptance, no contract can be construed. The only remedy available would be a claim for damages under a tort of trespass, which could only be issued by the landowner, and in any event is not pleaded by the Claimant. This reasoning is supported by the persuasive Judgments in PCM (UK) -v- Bull & Ors, and in UKPC -v- Masterson, for which the transcripts are appended to this statement.
PCM (UK) -v- Bull & Ors transcript is evidenced as Exhibit x
UKPC -v- Masterson transcript is evidenced as Exhibit x
Protection of Freedom Act 2012 non-compliance:
7. I received a Notice to Keeper, date of sending shown as xxxxxxxxxx, which states: ‘NAME AND ADDRESS OF SITE: Lidl & Travelodge, ST5 2RN REASON FOR ISSUE: Parking for patrons whilst on the premises only’. The Notice to keeper is evidenced as Exhibit xxxxx.
8. The Notice to Keeper does not meet the requirements of The Protection of Freedoms Act 2012, Schedule 4, for the following reasons:
a. Paragraph 8, Section 2 (a) ‘the relevant land on which it was parked’ as the incorrect Address is used therefore this does not describe the relevant land. The postcode of the site is ST5 2RS and not ST5 2RN as evidenced in Exhibit 3.
b. Paragraph 8, Section 2 (a) ‘and the period of parking to which the notice relates’ the notice to keeper shows two black and white photographs, the first photograph does not show a legible date and time stamp, the second photograph displays a date and time stamp of xxxxxxxxxx, no other time periods within the notice to keeper are set out therefore the period of parking is not demonstrated.
The Protection of Freedoms Act 2012, Schedule 4 is supplied for reference as Exhibit xx.
9. I received a Final Reminder, date of sending shown as xxxxxxxxxxxx, which states: ‘NAME AND ADDRESS OF SITE: Lidl & Travelodge, ST5 2RN REASON FOR ISSUE: Parking for patrons whilst on the premises only’. As detailed in point 5 (a) the incorrect address is used. The final Reminder is evidenced as Exhibit xxxx.
10. The Final reminder shows two colour photographs, the first photograph displays a date and time stamp of xxxxxxxxxx, the second photograph displays a date and time stamp of xxxxxxxxxx, a period of xxx seconds. Neither the Notice to Keeper or the Final Reminder demonstrate any evidence of Patrons not being on the premises.0 -
I think your final sentence should be the first thing you say after #1 and #2. No evidence = no cause of action.
Yes, but be aware the Judge might ask 'were you driving' (they shouldn't really, but they might).Is it simply a mention of non compliance of the NTK with regard to POFA and to attach the schedule or detail as I have done in the interest of being open and honest with no intent to ambush as such? PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Good evening all
Could someone kindly review my final draft witness statement before I print ready to File and Serve, do I need to include a transcript copy of the beavis case as I am referencing it?
Thank you so much for your help
1. I am xxxx, of xxxx, the defendant in this matter. I will say as follows:
2. I am the registered keeper of a xxx, Colour: xxx, Vehicle Registration Number: xxx.
3. As asserted in para [7] of my defence the reason for issue of the Parking Charge Notice was Parking for Patrons whilst on the premises only. Neither the Notice to Keeper or the Final Reminder that I have received demonstrate any evidence of Patrons not being on the premises. The readers attention if brought to Exhibit 1, the Notice to Keeper, and Exhibit 2, The Final Reminder.
4. On the xxx the vehicle was parked on the xxx Car park with the postcode reference xxx. A purchase was made in store and the receipt is evidenced as Exhibit 3.
The signage:
5. As asserted in para [6] of my Defence, the Claimant's signage at the material location made no offer of parking but attempted to impose a contractual charge based on a prohibitive term. There was no offer of parking made in consideration of payment, and in the absence of offer and acceptance, no contract can be construed. The only remedy available would be a claim for damages under a tort of trespass, which could only be issued by the landowner, and in any event is not pleaded by the Claimant. This reasoning is supported by the persuasive Judgments in PCM (UK) -v- Bull & Ors, and in UKPC -v- Masterson, for which the transcripts are appended to this statement.
PCM (UK) -v- Bull & Ors transcript is evidenced as Exhibit 4 and an image of the signage from this case is evidenced as Exhibit 5.
UKPC -v- Masterson transcript is evidenced as Exhibit 6.
6. The reader’s attention is brought to Exhibit 7 which demonstrates the signage
photographed upon visiting the site. The signage photographed is that of the entrance sign and that of the blue and white Euro Parking Services site signs.
7. The readers attention is brought to Exhibit 8, the entrance sign can be seen on the opposite side of the road to the driver. Upon the approach to the entrance sign is a pedestrian crossing making it difficult to safely view the sign, let alone read the small text on the entrance sign.
8. The reader’s attention is brought to Exhibit 9, the aerial photograph shows the location of the site signage and the location of the bay where the vehicle was parked. There is a lack of signs while driving from the entrance to the identified parking bay. Whilst making a visit to the site in xxx it was identified that two additional signs have been positioned as indicated in the aerial photograph, evidenced as Exhibit 10, and the street view photographs evidenced in Exhibit 11 and Exhibit 12. Exhibit 13 demonstrates an image from a dash mounted camera from xxx where it can be seen that the additional signage was not present on the day of the alleged incident.
9. As asserted in para [9] of my defence in the case of Parking Eye [PE] v Beavis [2015] there are many significant and crucial differences between this and PE vs Beavis. In the Beavis case one of the key factors was the clear and prominent signage in the car park, the parking charge was present in lettering of the largest font on the signage and with high contrast black on yellow and was therefore found to be transparent and obvious to the motorist. There can be no doubt of the £85 charge.
10. A comparison between the signage in this case versus the Beavis case is evidenced as Exhibit 14 and clearly demonstrates the terms are displayed in a font which is too small with statements open to misinterpretation. Exhibit 15 demonstrates the sign from a seated position in a vehicle that is parked in a bay in front of a sign. The signs are positioned in such manner that they cannot be read.
11. The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer, so they could make their decision whether to park and risk a penalty. Here are a few of the references to signage from the judgment:
a) Para 100: The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it and They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.
b) Para 108: But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85.
c) Para 205: The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.
12. The reader’s attention is brought to Exhibit 16, Site signage. In particular the readers attention is drawn to the sentence Lidl Customers: 90 minutes maximum stay whilst you remain on the premises which is misleading when compared to the wording on the Notice to Keeper where it is stated that the reason for issue is Parking for patrons whilst on the premises only. It is trite law that a contractual term cannot be relied upon that is only communicated after conclusion of a contract, as that is too late to be incorporated into the prior agreed terms.
Protection of Freedom Act 2012, Schedule 4:
13. I received a Notice to Keeper, date of sending shown as xxx, which states: NAME AND ADDRESS OF SITE: xxx REASON FOR ISSUE: Parking for patrons whilst on the premises only. The Notice to keeper is evidenced as Exhibit 1.
14. The Notice to Keeper does not meet the requirements of The Protection of Freedoms Act 2012, Schedule 4, evidenced as Exhibit 17, for the following reasons:
a. Paragraph 8, Section 2 (a) the relevant land on which it was parked as the incorrect Address is used therefore this does not describe the relevant land. The postcode of the site is xxx and not xxx as evidenced in Exhibit 18.
b. Paragraph 8, Section 2 (a) and the period of parking to which the notice relates the notice to keeper shows two black and white photographs, the first photograph does not show a legible date and time stamp, the second photograph displays a date and time stamp of xxxxx, no other time periods within the notice to keeper are set out therefore the period of parking is not demonstrated.
c. Paragraph 8, Section 7 ‘When the notice is given it must be accompanied by any evidence as prescribed under paragraph 10’.
15. As asserted in para [12] of my defence the maximum sum that may be recovered from
keeper is the charge stated on the Notice to Keeper. In this case £100, this is clearly described in the Protection of Freedoms act 2012, Paragraph 4, Sub paragraph 5. The claim includes an additional £60 for which no explanation is given.
16. I received a Final Reminder, date of sending shown as xxx, which states: NAME AND ADDRESS OF SITE: xxx, xxx REASON FOR ISSUE: Parking for patrons whilst on the premises only. As detailed in point 14 (a) of this witness statement the incorrect address is used. The final Reminder is evidenced as Exhibit 2.
17. The Final reminder shows two colour photographs, the first photograph displays a date and time stamp of xxx, the second photograph displays a date and time stamp of xxxx, a period of xx seconds.
Authority:
18. As asserted in para [11] of my defence the claimant has not provided evidence to show that it has sufficient proprietary interest in the land or the necessary authorisation from the land owner to pursue payment by means of litigation as described in the Protection of Freedom Act 2012, Schedule 4 Paragraph 5, sub-paragraph 1 (a).
19. I am defending as a keeper of the vehicle and as such include the exhibit 19, a copy of Henry Greenslade's wording from the POPLA Annual Report 2015 'Understanding Keeper Liability'.
20. As asserted in para [8] of my defence the Independent Parking Committee (IPC) Code of Practice, of which the Claimant was a member at the time of the alleged incident, has not been complied with in regard to signage. A copy of the IPC Code of Practice is evidenced as Exhibit 20.
21. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are
permissible under Civil Procedure Rule 27.14.
I believe the facts stated in this Witness Statement are true.
Signature of Defendant:
Print Name:
Date:
***********************************0
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