What to do if an IPC AND BPA member?

Many thanks LoC, I have written to the Claimant now and have changed the defence slightly again.

I have now created my second draft defence which I need to submit tomorrow evening, so I would very much appreciate a quick check/comments from yourself or anyone else before I submit..

DEFENCE DRAFT 2/FINAL DRAFT...

1. It is admitted that the defendant, xxxxxxx residing at xxxxxxx is the registered keeper of the vehicle.

2. It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in it's entirety. The date of the alleged incident is XX/XX/2016 as per the particulars of claim.

3. The identity of the driver of the vehicle on the date in question has not been ascertained, and no evidence has yet been supplied by the claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. It is reiterated that:
a. The Claimant did not identify the driver
b. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach. It is the defendants right to choose to defend this claim as the registered keeper.

4. Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under The Protection of Freedoms Act 2012, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott vs Loake (1982) in which there was irrefutable evidence of the drivers identity and moreover, this case was a criminal case and has since been dismissed previously by Judges in cases brought by Gladstones Solicitors. The Protection of Freedom Act 2012 Schedule 4 has not being complied with and the claimant may not quote reasonable assumption. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

5. I am a resident here and there is no mention of any ‘parking scheme’ in the lease, nor any charges for parking nor a requirement to display any parking permits.
Primacy of Contract: The idea behind primacy of contract is that a contract cannot be unilaterally altered by one party without the permission of the other. In the case of residential parking, the lease is the key document. If this gives the resident the unfettered right to park then this cannot be altered later, for instance by requiring a permit to park.
There is a large body of case law which establishes this. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents, in this case there is a chance that driver had to park in this area due to all the other parking slots being taken by other people or even non-residents.
In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.
In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.
Residential parking companies are there to protect the residents from outside motorists, and not for them to fleece residents parking in their own spaces. It was held that parking restrictions (including the introduction of a permit system) which caused detriment to tenants was in breach of the principle that ''a grantor shall not derogate from his grant”.
There is reasonable understanding that the defendant has a legal grant and right to park in a non obstructive manner. The site landowner covenanted to give tenants uninterrupted quiet enjoyment of the property and this is harassment. The claimant cannot re-offer parking rights as if it were consideration, on more onerous terms than before, when this right is already granted within a concluded contract, of which this Claimant is not a party.

6. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.
It is my understanding that the signage needs to be plentiful and easily visible, otherwise no contract can be entered by performance.
In Link Parking v Mr L C9GF5875 [2016] it was found that there was no entrance signage at a residential site and the other signage was not visible. The claim was dismissed.

7. The parking slot the vehicle was parked in has a ‘V’ for visitors sign displayed which is exactly the same as the ‘V’ for visitors signs in all of the other spaces that the residents are free to park in without the requirement of a permit. This is very misleading.

8. Despite the request for documentation by the defendant, the claimant has not produced these documents to date. It is reasonable for the defendant to request sight of documents and evidence as there is doubt as to the whether the claimant invoked Schedule 4 of the POFA 2012 with fully compliant documents. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Millenium Door and Event Security, and no proof has been provided.

9. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA. I believe the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

10. It is suggested by the defendant that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

11. The alleged debt as described in the claim are unenforceable penalties, being just the sort of unconscionable charges exposed as offending against the penalty rule. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes. Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.

12. It is submitted that (apart from properly incurred court fees) any added legal fees/costs are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in the small claims court.

13. It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

14. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

15. The Defendant puts the Claimant to full proof of its authority both to issue charges on the land in question, and to issue the charge which is the subject of these proceedings. Since the Claimant has failed to produce any information at the pre-action phase of these proceedings to demonstrate its authority, the Defendant must reserve his position in denying that it has such authority until he has had sight of the written contract between the Claimant and the landowner.

16. It is requested by the defendant that the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstone’s' template particulars for a private parking firm being 'incoherent', failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief.

Thanks, anyone know the email address for emailing the defence to? And do I need to scan my signature on it?