Now received court claim

fireintheeast · 15 March 2018 at 3:07PM

Hi Here's my first draft. Concerned it's too long / detailed which as I had to split it into 2 to fit the posting requirement may be a valid point. Any advice?

In the County Court
Claim Number: ******************
Between
HX CAR PARK MANAGEMENT LIMITED v ************************

DEFENCE STATEMENT

St George’s car park, an unsurfaced car park, lies adjacent to and bounded by the railway track, opposite Huddersfield Railway Station, Two of its other sides are bounded by old, derelict warehousing and dilapidated ancillary out buildings and walls. The fourth is bounded by a network rail maintenance depot. Entrance to this depot from Fitzwilliam Street, is over part of the land that the claimant, alleges to be under his control. It would be unusual for Network Rail to allow a depot to have its access & egress compromised and a primary reason why the land ownership and the right to issue charges be established.

The claimant should prove that he has the entitlement and authorisation from the landowner to levy such charges. Furthermore the claimant should provide a plan that was attached to the lease from the landowner clearly identifying what area is within his demise.

The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to issue parking charges on the land. This is contrary to the claimant’s membership of the professional body, the IPC. Their code states;
“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. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.”

It is admitted that at the time of the alleged infringement that the Defendant was the registered keeper of the vehicle registration mark XXXXXXX which is the subject of these proceedings. The vehicle was insured with three named drivers permitted to use it.

It is denied that the defendant was the driver. To the extent that the Claimant may seek to allege that any such presumption exist, 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.
It is admitted that on XXXXXXXXX the Defendant's vehicle was parked at XXXXXXX Entrance to the car park was approximately 3:40 to 3:50pm.
It is denied that a valid ticket was not purchased and displayed. Purchase of said tickets is by payment to an employee of the claimant. Said ticket will be provided as evidence.
It is contended that the ticket provided was inadequate for the use intended. In fact from the apparent number of cars using the car park the defendant has concerns as the non-appearance of a VAT Registration number on the ticket issued.
It is further contended that there are no instructions as to how the ticket should be displayed either on the ticket or given verbally by the employee on completing the payment transaction.
It is denied that a valid parking notice was placed upon the vehicle XXXXXXX. The claimant is asked to provide proof of such a notice.
As no valid charge notice was placed upon the vehicle the driver was under no obligation to either pay the charge or to appeal or enter into any correspondence with the claimant.
As such, no right to appeal has been extended to the defendant contrary to the car park operators own practice and the code of practice from his professional body, to which he must adhere.
The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").
Failure to adhere to the IPA codes of practice brings into question the membership of the said body and therefore prohibits the claimant from using the DVLA database.
Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate “that you have already given” an effective Notice to Driver at the time of the parking event • paragraphs 6 (1) (a) and 8 (2),
The claimant is asked to provide an effective notice to driver for the vehicle XXXXXXX.
Schedule 4 paragraph 7 of the PoFA stipulates the mandatory set of information that must be included on the parking ticket. If all of this information is not present then the Notice to Driver is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. The information required includes,
1. Which car the ticket relates to
2. What land the car was parked on
3. The period the car was parked
4. When and how the parking rules were broken
The claimant had the opportunity to correct the mistake, or at least bring it to the attention of the registered keeper, on the PCN at the first opportunity when writing to the registered keeper. He chose not to.
He had the opportunity to consider an appeal at that time. He chose not to, denying the defendant all right of appeal including that laid down in the code of practice for the IPC.
The defendant pointed out the faulty charge notice in the first correspondence to the claimant following the letter to keeper. The claimant ignored the mistake made and gave no or insufficient consideration to it in rejecting an appeal.
In not correcting the faulty parking notice the claimant had no right to use the DVLA database to obtain the registered keepers details. The claim should be struck out straightaway.
The defendant has sought numerous times to have the matter settled by ADR. The claimant has refused every time.

Failure to set out clear parking terms, Signage.
Not having received all of the required information but based on the presumption of the missing enclosures and I would like to retain the right to amend my defense on receipt of the claimants case. It appears that the claimant is relying upon signage to form a contract with the driver.
In letters from the claimant’s first debt recovery company they refer to the Beavis 2015 case as justification for the claim. However no such mention has been made by the claimant’s solicitors.
With regards to the signage in order to become and remain a member of the IPC the car park operator has to comply with the relevant code of practice. An important point as one need to be a member to access the DVLA database.
The Defendant contends that the parking signage in this matter is utterly & woefully inadequate.
At the time of the material event, the signage was deficient in number, positioning, distribution, wording, text size and lighting not to mention contradictions, to reasonably convey a contractual obligation.
Furthermore,
1. The signage location does not match the documentation supplied by the claimant.
2. The claimant’s information provided on signage does not include size or height of display.
3. The signage does not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant is a member.
4. The signage contained a particular obligation that cannot be met and therefore cannot be a fair contract.
5. At the time of the event there were no signs at the car park entrance at all.

fireintheeast · 15 March 2018 at 3:08PM

Sorry the post has lost it's numbering

In the County Court
Claim Number: ******************
Between
HX CAR PARK MANAGEMENT LIMITED v ************************

DEFENCE STATEMENT

Procedures / particulars

The claimant has consistently, despite several letters from the defendant, failed to provide a compliant Letter Before Court as per the court protocols; to date I'm still unaware of whether the claimant is taking action against me as driver or as registered keeper.
Furthermore the claimant actually refuses to issue a compliant letter before court believing their initial letter to be compliant, even though after further correspondence they add a sentence “For the “sake of completeness” “please see below for details of the charge”. Isn’t the whole purpose of the protocol to ensure completeness? They even managed to forget to include the enclosures they refer to in their letter. Therefore I can only conclude that they are deficient in providing a valid Letter before court.
I ask that the court set aside this claim or direct the claimant to provide a compliant letter before court.
The particulars of claim do not meet the requirements of Practice Direction 16 7.5. The particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants solicitors are known to be serial issuers of generic claims similar to this one.
HM Courts Service has I understand identified over 1000 similar incomplete claims. I believe the term for such behavior is ‘roboclaims’ and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point.
There are numerous examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2) (a). In this case a PCN number, a date of charge & location and charge amount is all the LBC contains.
The Particulars of Claim contains no details, in fact doesn’t even mention parking charge and fails to establish a cause of action which would enable the Defendant to prepare a specific defense; as such I would wish to retain the right to make amendments.
1. The claimant has disclosed no list of essential documents with they intend to rely on.
2. The claimant has not provided details of how the costs have been calculated.
3. The claimant within his LBC fails to point out the courts powers to impose sanctions for failing to comply. I do hope that works both ways and that the court is able to consider this.
4. The claimant’s LBC doesn’t point out that ignoring the letter may lead to the claimant starting proceedings and may increase my liability for costs.
5. The Claimant offered no form of ADR.
6. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was, nor anything which could be considered a fair exchange of information.
In order to gain clarity and the information to assemble my defense I wrote on the 21st December 2017 to the claimant’s solicitor’s asking for a range of information as directed in the protocols and is fundamental to the claim. The reply of 15th January 2018 was less than complete, although it contained the enclosures that were likely to be the ones missing from their correspondence of 11th December. They failed to make that clear. It appears they use a cut and paste approach to correspondence and failed to spot their contradiction as to what the next step would be.
It is not admitted that the Claimant has complied with the relevant statutory requirements.
In fact it is challenged to prove that it was legally allowed to seek the keeper’s details. Its right to access the DVLA is based upon membership criteria which the claimant has breached.
The claimant is required to be audited by the professional body, the IPC. Deficiencies in that audit carry the withdrawal of access to the DVLA. The defendant contends that reasonable audits carried out by the IPC should have identified contraventions of its code of practice. Evidence to counter this allegation should be provided in the form of a copy of the audit prior and post the XXXXXX.
The directors of the claimant’s solicitors are also the same directors for the IPC. As such deal with private parking issues every single day of the week, there can be no excuse for these omissions.

Costs

The letter to Keeper isn’t compliant with the code of practice or the requirements of POFA or of the code of practice of the IPC.
The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £160. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. £100
The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established despite the opportunity at the exchange / payment of monies for the parking ticket.
The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges with no evidence of how these extra charges have been calculated.
The claimant’s agents, DRP purport to be unbiased and give “My findings” on the validity of the parking charge.
The claimant has not sought to minimise the costs as required. He used 2 debt collectors even though the defendant has made clear at every stage of correspondence that he refutes the debt.
The Defendant also disputes that the Claimant has incurred £50 solicitor costs. If he has he should find better solicitors. Is there proof of a contract between the parties?
The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an alleged £100 debt.
Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

Wholly unreasonable and vexatious claim

It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2) (g).
The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstone’s, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centers in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).
Due to the inordinate delay in replying to my response to the LBC & the non-compliance of the LBC; I reported the claimants solicitor’s, Gladstone’s to the SRA. They responded saying they had received similar complaints but the case was not worthy of removing their right to practice. I understand I may appeal the SRA decision. Perhaps the court could give direction on that.

Summary

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.
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 defense.
In the event that the claimant withdraws the claim may I ask the court to consider the costs incurred in answering the complaint to date. I ask consideration for,
1. Postal costs of correspondence, currently in excess of 15 letters
2. Travel costs to the site twice to obtain evidence
3. My time in dealing with this matter

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

Fruitcake · 15 March 2018 at 4:04PM

"Failure to adhere to the IPA codes" needs amending.

Have you thought of using the much longer "inadequate signage" appeal point from the NEWBIES thread to supplement you existing one.

The_Deep · 15 March 2018 at 8:07PM

This is an entirely unregulated industry which is scamming the public with inflated claims for alleged breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They nearly always lose, and have been reported to the regulatory authority by an M.P.

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.

Coupon-mad · 15 March 2018 at 10:54PM

DEFENCE STATEMENT

No, it's 'DEFENCE'

And I see you have mixed ''I'' in there when it should be in the third person: 'the Defendant'.

I also think it is far too long and would be surprised if it's true that Gladstones have not sent a LBCCC with reply forms? They have started to do this properly(ish) this year.

Looks like you've copied an old version to me. Why not read some newer Gladstones defences just by reading back a few pages and finding some from last week/last month?

We comment on Gladstones defence drafts every single day here. There are far more succinct recent ones around.

fireintheeast · 16 March 2018 at 12:37AM

Thanks for your comments, I'll certainly clean up the 3rd person element. I would appreciate a link to a more recent defence but truly I received absolutely no reply form from Gladstone's.

Coupon-mad · 16 March 2018 at 12:42AM

No links. Honestly they are here every day, you could rock up any day and read several.

fireintheeast · 16 March 2018 at 1:20PM

Thanks for the advice. I've amended accordingly.
Defence Statement

Preliminary Matters
1. The Claimant has not complied with pre-court protocol, which prevents a full defence being filed at this time. Lack of complete list of evidence and the way that a parking charge could be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence.

1.1 The Particulars of Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached and fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence; are not clear and concise as is required by CPR Part 16.4 1(a).

1.2 The Claimant and their solicitor are known to be a serial litigants and issuer of speculative claims, using template particulars of claim which arise from an automated template, with no due diligence. Research indicated they are the subject of an active investigation by the Solicitors Regulation Authority.

1.3 In C3GF84Y2 (Mason, Plymouth County Court) [2016] the judge struck out the claim brought by KBT Cornwall Ltd as Gladstone’s Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where a claim was struck out without a hearing, due to Gladstone’s' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

1.4 On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very similar parking charge particulars of claim were deficient and failed to meet CPR 16.4 and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new particulars which they failed to do and so the claim was struck out.

1.5 When pressed, the Claimant actually refused to send an amended, but compliant letter before court, believing that theirs was compliant even though they gave extra information under the heading “for the sake of completeness”.

1.6 In order to gain clarity and the information to assemble my defense I wrote on the 21st December 2017 to the claimant’s solicitor’s asking for a range of information, as directed in the protocols, fundamental to the claim. The reply of 15th January 2018 was less than complete, although it contained the enclosures that were likely to be the ones missing from their previous correspondence of 11th December; they failed to make that clear. It appears they use a cut and paste approach to correspondence and failed to spot their contradiction as to what the next step would be

1.7 The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").

1.8 The parking charge notice allegedly attached to my vehicle is faulty.
Schedule 4 paragraph 7 of the PoFA stipulates the mandatory set of information that must be included on the parking charge notice. If all of this information is not present then the Notice to Driver is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. The information required includes,

Which car the ticket relates to
What land the car was parked on
The period the car was parked
When and how the parking rules were broken

1.9 Even though the claimant had no right to use the DVLA database and the defendant retains the right to take action under the Data Protection Act. The claimant had the opportunity to correct the mistake on the PCN, or at least bring it to the attention of the registered keeper, at the first opportunity, when writing to the registered keeper. He chose not to be honest, truthful or trustworthy, instead sending a template invalid Letter to Keeper.

2. The Defendant appealed the Parking Charge Notice on the XX/XX/XXXX explaining what had happened and included both a copy of the ticket displayed & the faulty PCN, providing the Claimant with clear evidence that the defendant acted in good faith and made all reasonable endeavours to comply with the terms and condition (“T&C”) - as far as they were understood. He had the opportunity to consider an appeal at that time. He chose not to, denying the defendant all right of appeal including that laid down in the code of practice for the IPC.

2.1 This was an opportunity for the Claimant to act reasonably and cancel the charge. Not only was the charge not cancelled but the appeal was not considered.

2.2 The above constitutes a direct breach of Practice Direction pre-action conduct and protocols; specifically - paragraph 3 (Objectives), and 8 (Settlement and ADR). As such the court's attention is drawn to paragraphs 13 - 16.

2.3 The above is also a direct breach of the International Parking Community ("IPC") Code of Practice ("CoP"), Part B, Section 6. The CoP is effectively regulation for the private parking industry, as found by the Supreme Court judges in the Beavis Case.

3. On the basis of the above, the Defendant requests the court strike out the claim for want of a cause of action and disregard of pre-court protocol.

3.1 Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;
a) 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
b) A copy of any contract it is alleged was in place (e.g. copies of signage)
c) Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
d) If charges over and above the initial charge are being claimed, the basis on which this is being claimed

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

Background
4. I am XXX the Defendant and was the authorised registered keeper. I was not the driver in question at the time of the alleged incident.

The Defendant denies liability for the entirety of the claim for the following reasons:

5. A ticket was paid for and displayed so all details could be seen, and was in place the right way up when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket flipped over or why, but made reasonable endeavours, and complied by conduct.

5.1 The Defendant cannot be responsible for the possibility that:
a) A gust of wind or the passage of another vehicle, may have later dislodged or flipped the flimsy paper, despite the windows & doors being locked.
b) The employee of the Claimant may have caused the ticket to flip over, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended but this is a known predatory tactic among this industry.
c) A passer-by may have leaned on the car, when squeezing between the cars to get to their own vehicle.
5.2 None of the above scenarios are within a driver's control (The driver was by that time, absent from the location) and it is evident that someone else – or a factor outside anyone's control – was to blame. This appears to have been a case of casus fortuitus "chance occurrence, unavoidable accident", which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract frustrated.

5.3 Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of this industry, which is well aware of the problem, which even has a name attributed: ''fluttering tickets''. Because they profit from drivers' misfortune caused by their own tickets' inability to remain static under conceivable circumstances, it is averred that this Claimant wilfully decided not to address this issue (e.g. by adding sticky backing to the ticket).

5.4 The Court is invited to consider the fairness of the position in this case, giving due consideration to the flimsiness of the piece of paper provided, which appears to cause significant imbalance in the rights of a consumer, to their detriment.
''A term or notice is deemed to be ‘unfair’ if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. This is to be determined by taking into account the nature of the subject matter of the contract, and by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends [...] ''An unfair term of a consumer contract is not binding on the consumer.''(s.62 Consumer Rights Act).

5.5 The term, ‘A valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen’ in particular the meaning of ‘displayed clearly’ is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt.

5.6 A valid ticket was displayed in the front windscreen of the Defendant’s vehicle. If the Claimant wanted to impose a different term to say display the ticket face-up then they should have drafted clear terms to that effect.

5.7 It is not disputed that the ticket gave the Defendant a licence to park for the entire day. The ticket was displayed on the dashboard at all times. This will be demonstrated by the Claimant’s own evidence.

5.8 The Claimant’s own evidence will also show the ticket appears colour coded, evidently to assist in the easy identification of unpaid parking. Furthermore the ticket was purchased from an employee with ample opportunity, not taken, to draw attention to the use of the ticket & how to display it.

Limited contract
6. The signage on this site is woefully inadequate to form a contract. It is deficient in number, positioning, distribution, wording, text size, containing contradictions and a requirement to park that is impossible to fulfil.
6.1 In addition this car park is completely non-illuminated, as are all of the signs and the defendant parked during the hours of darkness.
6.2 Part E, Schedule 1 of the Code of Practice of the International Parking Community of which the claimant is a member, clearly states the requirement of the signage.

Locus standi
7. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder and therefore would have no locus standi to bring this case per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd.

7.1 Parking Eye Ltd v Beavis [2015] UKSC 67 showed that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.

7.2 The claimant supplied a location drawing for their signs. The defendant believes this plan to be incorrect and asks for copies of the site demarcation from the lease if there is such a lease from the landowner.

No advertising consent for signage
8 In this matter, the Defendant believes that the Claimant does not have advertisement consent in relation to its parking signage on the land in question (which are classed as “advertisements” under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). This is a criminal offence under Regulation 30 of those Regulations. Accordingly, as a matter of public policy the principle ex dolo malo non oritur action should apply – namely, the Claimant should not be allowed to found a cause of action on an immoral or an illegal act (in this case the unlawful signage). The rationale for this is set out in the case of Holman v Johnson (1775) 1 Cowp 341 and was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015). The Defendant also relies on Andre Agassi v S Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507.

8.1 In addition to the criminal offence committed by the Claimant, it is in breach of various statutory and regulatory provisions set out in the Consumer Protection from Unfair Trading Regulations 2008 (Regulation 3 – a breach of which is an offence under Regulation 5), the Consumer Rights Act 2015 (Sections 62 and 68 and Schedule 2) and the Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013 (Regulation 13

Claimant is seeking a penalty and inflated costs
10. The Claimant seeks £249.50 which is an extravagant and unconscionable penalty, and therefore unenforceable particularly because the Defendant has shown he did purchase a valid ticket and the Claimant has suffered no loss, and because any breach of contract (which, for the avoidance of doubt, is denied) was de minimis.

10.1 The claimant has not sought to minimise the costs as required. He used 2 debt collectors even though the defendant has made clear at every stage of correspondence that he refutes the debt.

10.2 £60 of the £249.50 ‘parking charge’ (for which liability is denied) the Claimant has untruthfully presented as contractual charges, which amounts to double charging, which the PoFA 2012 Schedule 4 specifically disallows.

10.3 The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

10.4 There is no possible commercial justification for such a trivial error for the Claimant. The Beavis v ParkingEye [2015] Judges at the Court of Appeal stated there was a commercial justification as it was free car park and needed to prevent overstays of the free 2 hour stay. Whereas in this case the car park is a Pay and Display car park where revenue is gained as people need to pay to park there for an agreed period of time.

10.5 The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid and that due to the sparse particulars the £50 claimed for filing the claim has not been incurred either. This appears to be an attempt at double recovery as a way to inflate the value of the claim. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.

10.5 The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”. These were presumably the £25 filing fee and £25 hearing fee. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

10.6 I deny the Claimant is entitled to any interest whatsoever

10.7 In the event that the claimant withdraws the claim may I ask the court to consider the costs incurred in answering the complaint to date. I ask consideration for,

Postal costs of correspondence, currently in excess of 15 letters
Travel costs to the site twice to obtain evidence
My time in dealing with this matter

11. The Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected given the appalling administration shown 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 defense.

nosferatu1001 · 16 March 2018 at 1:41PM

Thats really, really long. Most recent defences are much shorter.

fireintheeast · 16 March 2018 at 1:55PM

Any suggestions for which points to modify / remove?

Now received court claim

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