Another win for MSE

Coupon-mad · 13 January 2020 at 12:52AM

But I do need some help with my defence as I'm lacking confidence in my abilities right now also I don't want to submit something I don't understand.

Quite right. We are happy to look at any draft defence and help a trier!

You could adapt the defence I wrote for basher52 but don't go denying being the driver if that's a lie...as I saw someone do earlier, when I told them to adapt his one!

The defence I wrote for basher52 show you how to set it out. It can be copied from point #6 or #7 downwards (with 75% and £80/£60 being changed in most cases to 60% & £100/£60, in the figures used) but is not to be copied verbatim about who was driving!

It is your job to do the first few paragraphs of facts and NOT to copy someone else's facts.

Redx · 13 January 2020 at 10:07AM

I agree , if you did the above first by starting around paragraph 6 or7 and change the few details to suit your figures etc , it's three quarters done

Then do the first few paragraphs on details , timings , paperwork , POFA , any CoP issues , no landowner authority , poor signage and rebut the POC and circumstances , then you should be over 90% there , as would anyone else with a parking court case

The_Deep · 13 January 2020 at 10:15AM

The're claiming £172, with a court fee of £25 and legal representatives costs of £50. Total = £247

A lot more than the law allows, many judges are now throuing out such cases because of this deliberate abuse of process by low rent law firms, complain to the SRA here

https://www.sra.org.uk/

[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT][/FONT]

Chefdave · 14 January 2020 at 9:36AM

I've made a start on my defence by adapting one of bargepole's concise defences from the Newbies thread post #2 Should I alter the word 'principle' from paragraph 4? I'm not sure if that's a legal term or because bargepole was defending against a university. Also I'm thinking of swapping out paragraph 5 for post #14 of the Abuse of Process thread. Would that be OK? Maybe add a little more about poor signage too.

1. The Defendant was the registered keeper and driver of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the Defendant had checked in to Polygon Villas Guesthouse on the evening of Friday 22nd February and purchased a 24 hour permit to park in the car park that the alleged contravention took place upon arrival. The earliest check in time at Polygon Villas is 14:30 as stated in their terms and conditions, as the alleged contravention took place at 12:02pm the next day it was well within this 24 hour window and as such the defendant was entitled to be parked in the car park at that time. The ‘land’ which forms the basis of the current claim is shared by several businesses and consists of a relatively small number of bays, some open space, a wide driveway and something of a junkyard at the back. Given this lack of clarity regarding how or where a guest with a parking permit is, or is not, allowed to park in this car park, no contract can be construed from the Claimant's signage, under the contra proferentem principle.

3. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

4. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. 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 right to bring any action regarding this claim.

5. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 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.

6. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

Umkomaas · 14 January 2020 at 12:00PM

Chefdave wrote: »

I've made a start on my defence by adapting one of bargepole's concise defences from the Newbies thread post #2 Should I alter the word 'principle' from paragraph 4? I'm not sure if that's a legal term or because bargepole was defending against a university. Also I'm thinking of swapping out paragraph 5 for post #14 of the Abuse of Process thread. Would that be OK? Maybe add a little more about poor signage too.

'Principal' here means the contracting organisation, the contract signatory on behalf of the landowner. It has nothing to do with any University Principal.

And in the context of bargepole's example, it is definitely not 'principle'.

Chefdave · 14 January 2020 at 1:53PM

I see, thanks for clarifying that point Umkomaas. Much appreciated.

If my defence isn't workable I'll look again at the basher52 defence from point 6/7 this evening.

Coupon-mad · 14 January 2020 at 3:29PM

That's a good start at a defence, as long as you change the added £60 to £72 (in your case the falsely added unrecoverable sum is an eye-watering £72).

I would just change the ending, see below, and attach Crystal_Tips' Warwick strike-out judgment screenshot as an email attachment with your defence:

1. The Defendant was the registered keeper and driver of the vehicle on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts of the matter are that the Defendant had checked in to Polygon Villas Guesthouse on the evening of Friday 22nd February and purchased a 24 hour permit to park in the car park that the alleged contravention took place upon arrival. The earliest check in time at Polygon Villas is 14:30 as stated in their terms and conditions, as the alleged contravention took place at 12:02pm the next day it was well within this 24 hour window and as such the defendant was entitled to be parked in the car park at that time. The ‘land’ which forms the basis of the current claim is shared by several businesses and consists of a relatively small number of bays, some open space, a wide driveway and something of a junkyard at the back.

2.1. Given this lack of clarity regarding how or where a guest with a parking permit is, or is not, allowed to park in this car park, no contract can be construed from the Claimant's signage, under the contra proferentem principle. It is averred that the small print terms, as drafted in this case, are prohibitive and instead try to dress up unknowing acts of (at the most) inadvertent potential trespass by guests misled by the appearance of the parking area, as if such drivers had entered into an agreed parking licence at a price.

3. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

4. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. 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 right to bring any action regarding this claim.

5. The Defendant has the reasonable belief that the Claimant has not incurred £72 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) (the 'POFA') states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper. The Defendant is of the view that this Claimant knew, or should have known, that their double recovery attempt to claim a false 'principal debt' of £172 for a parking charge on private land which are capped at £100, is expressly disallowed under the CPRs and with regard to the case of ParkingEye Ltd v Beavis [2015] UKSC67, the POFA and the 'grey list' of unfair terms as set out in the Consumer Rights Act 2015, Schedule 2 ('the CRA 2015'). This is a legally represented Claimant who has no excuse or justification and relief from sanctions should be refused.

6. Claims such as this on in the IOW, Hampshire, Dorset and Wiltshire circuit are frequently being summarily struck out. On 11th November 2019 in Southampton County Court, District Judge Grand heard a parking firm's barrister in person but refused an application to reinstate multiple 'struck out' parking charge cases. This was wholly due to the added exaggerated costs, similar to the instant case, in cases filed by robo-claim solicitors operating in 'cartel-style' with pre-written template witness statements and where a high percentage in false costs is set to be extracted from any Defendant who suffers a judgment against them. DJ Grand declared that these claims represent such a serious abuse of process that the entire claims are tainted, not just the added costs. There is no indication that this decision was appealed, and DJ Grand refused this when asked at the hearing, declaring that falsely exaggerated claims, which breach statute and case law, have no prospects of success.

7. In December 2019 in a different Court circuit, Deputy District Judge Josephs sitting at Warwick County Court agreed, citing the POFA and the Supreme Court decision in Beavis and determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' Further, in issuing his Order without a hearing, the Judge stated that he had ''considered S71(2) of the CRA 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

7.1. A copy of that judgment is appended to this defence.

8. The Defendant requests that this Court - using its case management powers pursuant to CPR 3.4. - recognises its duty under paragraph 71 of the CRA 2015 in the same way as the Southampton and Warwick courts recently have done, and opts to summarily strike out this claim.

9. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating and misleading in terms of the falsely added 'costs' and the lack of prominence of clear terms on signage, which was incapable of being construed as a contractual offer by visitors who were de facto 'authorised'.

10. If this meritless claim is not summarily struck out for the same reasons as the Judges cited in the multiple Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process - which has already caused this Defendant hours of wasted time in researching, reading and writing submissions - full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.

Statement of Truth:

I believe that the facts stated in this Defence Statement are true.

Name

Signature

Date

mlees98 · 14 January 2020 at 4:21PM

i submitted this defence and then both parties filed a directions questionnaire (N180) and now the claim against me has gone to mediation what do i do next. Any help much appreciated. The car is a lease company car that i was driving at the time.

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Defendant is the registered keeper of the vehicle in question.

3. The area named in the claim, Hartlepool Marina, is subject to the byelaws of the Tees and Hartlepool Port Authority and is therefore not relevant land for the purposes of complying with the requirements of Schedule 4 of The Protection of Freedoms Act 2012, of which you are aware, and only the driver can be held liable for the alleged breach.

4. The vehicle has multiple drivers and VEHICLE CONTROL SERVICES has failed to comply with the POFA 2012 Schedule 4, para 14 and thus failed to transfer liability to the Defendant in law. Given that the car is insured with more than one driver, the Claimant cannot assume nor tip the balance of probabilities, that the registered keeper was necessarily the driver. Thus, the Claimant has failed to establish a cause of action and liability against the Defendant

5. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. 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.

6. 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.

7. VEHICLE CONTROL SERVICES are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract. The claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge.
8. The driver has not been evidenced on any occasion.

9. Costs on the claim - disproportionate and disingenuous
PR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

10. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.
11. In this case the provision requiring payment of £185 is an unenforceable penalty clause and is not a genuine estimate of loss incurred to the claimant.

12.The Parking Eye Ltd v Beavis case 2015 is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that the alleged 'parking charge' itself is a sum which the Supreme Court found is already inflated to more than comfortably cover the cost of all letters.

13. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

14. According to Ladak v DRC Locums UKEAT/0488/13/LA 2014 a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

15. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

16. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstone’s' robo-claim model) yet the Order was identical in striking out both claims without a hearing: ''IT IS ORDERED THAT the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

17. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed mendacious in terms of the added costs alleged.

18. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

19. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.

I believe the facts contained in this Defence are true.

Name

Chefdave · 15 January 2020 at 9:32AM

Coupon-mad wrote: »

That's a good start at a defence, as long as you change the added £60 to £72 (in your case the falsely added unrecoverable sum is an eye-watering £72).

I would just change the ending, see below, and attach Crystal_Tips' Warwick strike-out judgment screenshot as an email attachment with your defence...

Thank you CM that's incredible - you've honestly saved my weekend as I was preparing to bunker down for another one and read for hours on end about more disgruntled chip shop owners etc. I'm very grateful for your assistance!

I realise the work doesn't stop here though and will continue reading as much as possible while I wait for whatever comes next.

nosferatu1001 · 15 January 2020 at 10:03AM

mlees - edit that damned post, now, and get off this thread. it is NOT your thread so dont post about your case!

You must not disclose the driver, in any forum including this one. Especially given your defence is based around not being able to hold the keeper or hirer liable...

Another win for MSE

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