PCN got court summons

Apologies I missed that comment. By claim form are we talking the legal document for the CC or the original from PP? If the latter I cannot remember, December 2014 sometime, if the CC ‘summons’ it was the day before I posted originally.

So I have pulled together a first draft defence and am just waiting for the SAR to come back.

Here is the first draft, any comments would be greatly appreciated as I have never written a formal defence before, thanks in advance!


IN THE COUNTY COURT
Claim No.: xxx
Between:
xxx
(Claimant)

-and-

xxx
(Defendant)
DEFENCE

Preliminary

1. This document forms the Defence of xxx (the Defendant) against the claim reference xxx made by BW Legal (the Claimants representative) on behalf of Premier Park Limited (the Claimant).

2. It should firstly be established that the Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

3. The Particulars of Claim on the N1 Claim Form refer to “Parking Charge Notice (PCN) issued on xxx”. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. In addition, the particulars fail to state the relationship between the Claim and the Defendant, whether he is the keeper of the vehicle or purported to be the driver. This indicates that the Claimant has failed to identify any Cause of Action. 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.

4. It should also be established that the Particulars of Claim provided by the Defendant is prejudiced and thus prevents the Defendant from preparing a full and complete Defence. As such, the Defendant reserves the right to seek permission from the Court to serve an Amended Defence should the Claimant add to or expand his Particulars further into these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

The Particulars refer to the material location as xxx. At the time of the penalty the Defendant had, since July 2014, held legal title under the terms of a lease, to xxx at that location. At some point, the site operators (Radian) contracted with the Claimant company to enforce parking conditions at the estate. It should be noted that the Defendants lease was with the landowner and landlord, xxx, indeed the Defendant had no contract with the site operators.
The Particulars of Claim do not reference the material terms of any contract in addition to failing to comply with both CPR 16 in respect of statements of case and the relevant practice direction in respect of claims formed by contract or conduct. It should further be noted that the Claimant has failed to engage in pre-action correspondence in accordance with the pre-action protocol. The Defendant can only assume that this is with the express aim of avoiding contested litigation.
Background

7. It is admitted that the Defendant was at the time of the alleged infringement and remains the registered keeper of vehicle registration mark xxx, which is the subject of these proceedings. At the time of the alleged infringement the vehicle was insured with HIC, with two named drivers permitted to use it.

8. It is admitted that on 4th December 2014 the Defendant's vehicle was parked in the communal car park of the xxx.

9. It should also be known that the Defendant was resident xxx and as part of the contract with the landowner and landlord (Rev. xxx) was given unfettered right to park in parking spaces marked ‘C’.

10. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

10.1. 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 Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

10.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

10.2.1. There was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

10.2.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

10.3. It should be admitted that the Claimant has not complied with the above relevant statutory requirements.

10.4. To the extent that the Claimant may seek to allege that any such presumption exists, the Defendant 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 parliament intended this they would have included such requirements as part of POFA, which makes no such provision. Alternatively, 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 as no criminal offence has been committed.

Authority to Park and Primacy of Contract

It is denied that the Defendant or lawful users of his vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the occupier and leaseholder of xxx whose tenancy agreement permitted the parking of vehicle(s) on the land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A witness statement from the property owner and landlord stating this will be provided to the Court as evidence that prior permission to park had been given.
The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.
The Defendant would draw the Court’s attention to the fact that when the landlord bought the property, he signed a contract with the site operator (Radian). However, in this contract no clause existed to either:
13.1. Allow the operator to bring in an external parking company to enforce permits and issue penalties; or

13.2. To allow variation of the contract

Given the above, under the contract the site operator could not bring in an external parking company such as the Claimant, nor could they vary the contract to achieve this without written consent of both the operator and the landlord. The landlord states in the aforementioned witness statement that no such variation was made between himself and the site operator and therefore no variation in contract was made with the occupier. As such, the Claimant is required to provide strict proof of a chain of contract between the occupier and the Claimant allowing the issue of permits and penalties. In the absence of this chain of contract, the Claimant would have no right in law to issue permits or penalties at xxx, as such they would in fact have been trespassing on private land. To this regard the Defendant relies upon Davey v UKPC where Mr Davey was awarded £150 for damages for trespass.

The Defendant also notes that prior to the alleged infringement the Defendant received express permission from the site operator, through the landlord of the property that the vehicle could be parked without a permit as the occupier had mislaid their permit. This notification formed an oral contract between the Claimant and occupier/Defendant, thus negating the ability of the Claimant to issue a penalty against the Defendant Again, this is evidenced by the landlord in the aforementioned witness statement.
Thus, the Defendant's vehicle clearly was 'authorised' as per the lease and verbal contract and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.
The Defendant also avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.
Accordingly, it is denied that:
17.1. There was any agreement as between the Defendant or driver of the vehicle and the Claimant

17.2. There was any obligation (at all) to display a permit; and

17.3. The Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.
Alternative Defence - Failure to set out clearly parking terms

In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
19.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.

19.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;

19.1.2. The signage did not comply with the requirements of the Code of Practice of the British Parking Association’s (“BPA”) Accredited Operators Scheme (“AOS”), an organisation to which the Claimant was a signatory and

19.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

19.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.
Alternative Defence – Failure to Allow Time to Appeal

In the alternative to the above two defences, the Defendant would draw the Court’s attention to the fact that the Claimant, through the site operator decided to deny any initial contract allowing parking without a permit (as previously discussed). This denial was communicated to the landlord after the 35 day window for appeal through the Parking on Private Land Appeals service (POPLA) had expired.
The coincidence of this seems remarkable as it then became impossible for the Defendant to appeal against the penalty.
Further, a joint occupier of the property received a penalty at a different time and appealed to POPLA on similar ground to the alternative defence above and won their appeal. As such, it can be assumed that if the Defendant had been given the opportunity to appeal, as outlined in the BPA AOS, the Defendant would also have won their appeal with POPLA.
Given the above, the sole reason for the Claimant delaying notifying the Defendant of their desire to proceed with the penalty must be to remove the Defendants ability to appeal, in direct contravention of the AOS.
Data Protection

The Defendant has never given the Claimant permission to hold their personal data. As such, if the Claimant has issued a penalty without legal basis, as provided by the former two defences above, they have accessed the Defendants personal information form the DVLA database for an invalid penalty. This would constitute a breach in Data Protection Regulations. The Defendant relies on Vidal-Hall v Google Inc (2014) EWHC 13 (QB) to provide authority that the misuse of personal data is a tort and that damages may be non-pecuniary. As such, the Defendant relies on Halliday v Creation Consumer Finance Ltd (2013) All ER (D) 199 which provides authority that a reasonable sum for compensation due to breach of data protection regulations would be £750.
In summary, it is denied that the Claimant has any entitlement to the sums sought.
For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £195.40, the Defendant avers that this inflation of the considered amount is a gross abuse of process.
Given that it appears that this Claimant's conduct provides for no cause of action, and this is intentional and contumelious, the Claimant's claim must fail, and the court is invited to strike it out.
In the alternative, the Court is invited, under the Judge's own discretionary case management powers, to set a preliminary hearing to examine the question of this Claimant's substantial interference with easements, rights and 'primacy of contract' of residents at this site, to put an end to not only this litigation but to send a clear message to the Claimant to case wasting the court's time by bringing beleaguered residents to court under excuse of a contractual breach that cannot lawfully exist.
30. The Defendant infers that if the Claimant cannot demonstrate chain of contract with the Defendant, they are liable for damages for trespass, of the order of £150. Further, the Claimant should be liable for compensation in the order of £750 due to the misuse of the Defendants personal information and thus the Claimant’s non-compliance with data protection regulations.


STATEMENT OF TRUTH

I confirm that the contents of this Defence are true.

Thanks Coupon Mad, I did have numbers so formatting must have gone when I pasted it, I’ll double check that when I put it into MCOL.

I’ll also deleted that statement.

Thanks again

Polo goes that is indeed what I meant and checking it had been filed over the website.