Hit with 8 tickets dating back to 2014

Hi Guys,

Sorry it has taken me a bit of time to get back with my draft defence. It is due on Friday. So ideally need to post tomorrow. my phone has crashed so I have lost my MECOL number which means i cant submit online.

Here is my defence. It is a combination what I submitted for my wife and a defence for another case here.
Out of interest- in my wifes set aside hearing the judge stated that there was no proof of loss to the parking company for the residential parking. Can I put that in my defence? or as the case has not been decided can I not?

I haven't really addressed the hospital ticket much.. I had a permit but the carpark was full. I haven't been able to go there as it is several hours away. I have gone with POFA and poor signage argument. I may have to address it further in my witness statement in the future if I get the chance to go. Baby due imminently so I cant travel and look at signs etc.

here is the draft:

1. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

i. The Claimant has no standing to bring a case
ii. The Claimant has no capacity to form a contract with the motorist
iii. The signage across the sites did not offer a genuine contract with the motorist
iiii. Even if a contract could be formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations
v. The Claimant has no Cause of Action
vi. Even if a debt existed, it would be due to the land-owner, not the Claimant
vii. The Claimant has misrepresented its day-to-day business costs as a loss
viii. The defendant had a valid parking permit for xxx as he was a tenant at the property at the time of the tickets issued at lakeside rise. The defendant also had a parking permit for xxxx General hospital.

2. The Claimant manages the car parks. The Claimant is not therefore the Land-owner at either site. Neither has it claimed to be an Agent. The Defendant has the reasonable belief that it is merely a contractor. The Claimant has not therefore explained what authority it has to bring the claim. The proper claimant is the landowner.

3. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.
• Their claim is presumably based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss.
• The defendant submits that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on the part of any motorist of the vehicle of which he is the Registered Keeper. He further submits that any loss to the landholder at Burnley Hospital (which would be the only party able to claim such losses) would be at most a few pounds.

4. The Defendant is aware that the Claimant relies on ParkingEye v Beavis. The Defendant submits that the present case can be distinguished for three reasons:
• In Jopson v Homeguard [2016] B9GF0A9E, it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking. The Supreme Court found that £85 was not a genuine pre-estimate of loss in Beavis as there was no direct loss to the parking company. Seven of the eight alleged parking charges in this case" relate to residential parking.
• It was established that ParkingEye paid a premium of £1000 per week to operate at the site. This was ruled to give them standing as Principal. In the present case they are acting as a contractor to the land-owner.
• In the Beavis case there was also a clear chain of command between the land-owner and ParkingEye established by the production of original copies of the contracts.

If the Claimant wishes to rely on Beavis, the Defendant is put to proof that such a contract exists and of its content.
Also the Claimant has claimed that “ParkingEye v Beavis” confirms that any amount will be recoverable provided it is proportionate to a “legitimate interest” which is not true. The Beavis case found that the sum of £85 in that case alone, with the particular signage and adequate notice in that case, was not a penalty.

5. As this case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

6. If the driver happened to see the signage (if any were present) on each occasion, signs are located at a distance in pale, unlit and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. The signs do not comply with BPA Code of Practice.

7. It is further noted that the signage at xxxx has several different forms making it impossible to know which are supposed to be in use. In several areas it is evident that the rules and regulations governing the carpark have been altered (Old glue marks on the walls)
8.The dates of the PCNs range from early 2014 to early 2015, and in that time it is averred that the signs at both sites will have changed, been replaced or updated (to reflect changes in the BPA Code of Practice) and indeed some may have been removed or damaged. There is no signage that is supplied by UKPC that existed throughout the time-span of this claim and it is argued that this operator did not comply with the 'signage' and 'entrance signs' sections of the BPA Code of Practice as it changed between 2015 to date.

8. Such is the density and complexity of the text on the signs that the most onerous term – the parking charge – is buried amongst a mass of small print and does not comply with Denning MR’s “Red Hand Rule”.

9. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.

10. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was recently investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis. The Claimant is put to proof that the photographic evidence it has is accurate and true and that any and all previous correspondence has been sent to the Defendant as claimed.

11. Due to the length of time that has passed, the Defendant has little to no recollection of the days in question, which were unremarkable. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car some years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

12. Due to the Claimant’s history of lack of compliance with regulations, the Claimant must prove that it has fully complied with the strict requirements sent out in POFA 2012 Schedule 4. As the Defendant is the registered keeper of the vehicle, these regulations must be complied with in order to hold the keeper liable.

13. The POFA restricts liability to the sum of the parking charge itself and the BPA Code of Practice has a ceiling of £100. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £60 to each PCN and that those sums formed part of the contract in the first instance.

14. The Particulars of Claim submitted by the Claimant is not compliant with the Practice Directions. The Claimant has not attached the contract(s) it wishes to rely on that it alleges were in place at the time. The Claimant has not clarified whether it is seeking keeper liability and has not attached any confirmation that is has gone through the necessary steps to do so. The Claimant has not clarified if there are any amounts claimed over and above the initial charge and on what basis they are being claimed.

15. The POFA 2012 Schedule 4 states that before seeking keeper liability, the Claimant must demonstrate that there was a “relevant obligation” either by way of breach of contract, trespass or other tort. The Claimant is put to strict proof that the “relevant obligation” existed and that the correct procedure was followed to transfer liability to the registered keeper.

16. The POFA 2012 Schedule 4 states that before seeking keeper liability, the Claimant must demonstrate that there was a “relevant contract”. The Claimant is put to strict proof that a “relevant contract” existed to pay £100 and that there was (as defined in 2(3) of the statute) 'adequate notice' of that sum and legible terms.

17. The claimant alleges that on seven occasions no valid permit was on display. As the registered keeper the defendant can produce the permit which does not stipulate which bay number the car had to be parked in. This permit was supplied by the landlord when he moved into the property. 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.

18. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.