County court letter assistance

In The County Court

Claim Number:
Between: (Claimant)

-and-

(Defendant)

Amended Statement of Defence.

The claimants have been ordered to submit further and better particulars and, as a serial litigant represented by a professional firm of solicitors, this clearly highlights their unreasonable conduct of this litigation for which costs will be sought pursuant to CPR 27.

In response to a General Form of Judgment or order from District Judge Wright at the County Court Skipton, the claimant served amended particulars of claim that were to address matters required by CPR 1998 PD 16.7 and the legal basis on which it claims the defendant is liable to it.

The Particulars of claim failed to comply with the order in that they have not established any legal basis on which the defendant may be liable for any charge and actually ask the court (at paragraph 35 of POC) to come up with an alternative remedy if the defendant was not the driver. (The defendant was not the driver and the claimant has provided no proof of who the driver was).

It is admitted that Defendant is the registered keeper of the vehicle in question.
However the Claimant has no cause of action against the Defendant on the following grounds:-

1. Specifically that the claimant are not relying on PoFA in order to invoke keeper liability and have not provided any evidence of who was driving, therefore there is no legal basis to the claim that the defendant is liable for.
Pursuant to the order of judge wright, and due to their failure to comply the case should stand struck out. With costs awarded due to the Claimants unreasonable behavior.

2. The Defendant was not the driver of the vehicle on the date in question. The Claimant is put to strict proof and to date no proof has been offered. (defendant has CCTV evidence that on said date and time of event they were elsewhere).

3. The claimant has no right to assert that the defendant is liable based on '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).

3.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant suggests 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").

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

3.2.1. There was a 'relevant obligation' either by way of a breach of contract, trespass or other tort; and 4.2.2. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

3.3. 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.

4. The defendant also denies that the keeper should be held liable for the actions of the driver.
A person is not generally liable in law for the actions of somebody they have allowed somebody else to use. If they were, then there would have been no need for the Protection of Freedoms Act 2012, schedule 4, which can be used to artificially transfer liability from driver to keeper in some situations. The hire car industry would also not be able to exist, as they would be liable for the actions of anyone using their cars.
CPS v AJH Films is only applicable in an employee/employer situation. This was not such a situation as there was no contractual relationship.
The case Elliott v Loake Crim LR 36 is a criminal case and not the same as this case.

5. The Claim Form issued on the 9th January 2018 by BW Legal was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by "BW Legal Limited" (Claimant's Legal Representative)".

6. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict 'keeper liability' provisions!

6.1. Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a "relevant obligation" and "relevant contract", fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper.

7. It is not admitted that on (said date) the Defendant's vehicle was parked at (said place).
7.1. The Claimant has provided no evidence, photographic or otherwise that the vehicle is indeed parked.

8. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage "contract", none of this applies in this material case.

9. In the absence of any proof of adequate signage contractually bound the Defendant then there can have been no contract and the Claimant has no case
a. The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs
b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant
c. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:
i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 , BPA Code of Practice and Independent Parking Committee (IPC) Code of Practice and no contract formed to pay any clearly stated sum
ii. It is believed 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 Consumer Rights Act 2015 in requiring a huge inflated sum as "compensation" from by an authorised party using the premises as intended.
iii. 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
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
d. BPA CoP breaches - this distinguishes this case from the Beavis case:
i. The signs were not compliant in terms of the font size, lighting or positioning
ii. The sum pursued exceeds £100
iii. There is/was no compliant landowner contract

10. If the court believes there was a contract (which is denied) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (i.e. the tariff), identified as completely different from the complex 'free parking licence' arrangement in Beavis.

10.1 Where loss can be quantified, the 'complex' and 'completely different' Beavis decision is inapplicable, as was found in ParkingEye Ltd v Cargius, A0JD1405 at Wrexham County Court.

10.2 At the Court of Appeal stage in Beavis, pay-per-hour car parks were specifically held by those Judges (in findings not contradicted in the Supreme Court later) as still being subject to the "penalty" rule, with the potential for the charge to be held to be wholly disproportionate to the tariff, and thus unrecoverable.

11. No standing - this distinguishes this case from the Beavis case:
a. It is believed Excel Parking services Ltd do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

12. Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable expect a registered keeper to be able to recall the potential driver(s) of the car nearly 15 months 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 a registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

13. The claimant has yet to respond to a letter of information request emailed by the defendant and sent to BW Legal and Excel Parking Services Ltd on the (date).
Asking for Copies of full particulars of the parking charges. Including all letters sent by the claimant including notice to keeper.

14. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-
a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

15. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landholder can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landholder themselves claiming for a nominal sum.

16. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
In my opinion, there is a better alternative than legal proceedings, namely that we utilise the services of a completely independent Alternative Dispute Resolution service suited to parking charges. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent.

Therefore I ask the court to respectfully strike out this claim with immediate effect.

I believe that the facts stated in this Statement of defence are true to the best of my knowledge and belief.

Does anything need to go in the defence if I wish to put in a costs claim?

Can I put this in at the same time as my new defence?

Great. Thank you

Should I put anything in about the denouncement by mp after mp of these companies in the House of Commons?