Pcn small claim but no defence

Please do not start a new thread. It will do nothing but annoy the very people you are looking to for help.

Is it worth mentioning the "red hand rule" within the defence....or wait to see if it goes to court and include the Red Hand Rule later ...like into the witness statement in order to counter any arguments by the claimant that there were plenty of signs around said car park.

hello ...I now have draft 3. I have read shorter defences and longer ones. So I hope it doesn't come across as waffly or contain unnecessary detail.

I was unsure whether to include 10.1.3 reference to Unfair Terms in Consumer Contracts Regulations 1999 but it's in there, and
I've referred to the red hand rule in 10.1.4. in reply to nosferatu's comment above.

This draft relies heavily on one I believe was written by Jonersh.

I posted draft 2 above 6 days ago and save for Claxtome pointing out a spelling error on my part, I received no other feedback on the defence points itself. However, as time is now running out I need to print this, sign it, scan and email tonight....so if there is any feedback like "remove this sentence/paragraph" or, "draft 2 sounded better" id be grateful again.



In the County Court Business Centre

Claim Number: XXX

Between:

Vehicle Control Services Ltd (Claimant)

-and-

XXX (Defendant)


DEFENCE


Preliminary
1. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B 1.1 which says;
“If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the landowner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.”

2. The particulars of claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Indeed the particulars of claim are not clear and concise as is required by CPR 16.4 1(a). The Claimants are known to be serial issuers of generic claims similar to this one. HM Courts Service has identified over 1000 similar sparse claims which is now termed ‘roboclaims’ and as such is against the public interest. Practice Direction 3A which references Civil Procedure Rule 3.4 illustrates this point;

“ 1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a):
1. those which set out no facts indicating what the claim is about, for example, ‘Money owed £5000’,
(2). those which are incoherent and make no sense,
(3). those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant ”

3. The claimant has not provided enough details in the particulars of claim to file a full defence;
3.1. The Claimant has disclosed no cause of action to give rise to any debt.
3.2. The Claimant has stated that a ‘parking charge’ was incurred.
3.3. The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
3.4. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought.
There is no information regarding why the charge arose, what the original charge was, what the alleged contract was, nor anything which could be considered a fair exchange of information.

Background

4. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXXX which is the subject of these proceedings.

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. 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")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. 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.

5.3. 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 section.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.

6. The PCN was issued for an alleged overstay. The Claimant, who is the member of the International Parking Community (IPC), has failed to comply withe Clause 15 of the IPC’s Code Of Practice’s General Condition with regards to grace periods that state:

“15.1 Drivers should be allowed a sufficient amount of me to park and read any signs so they may make an informed decision as to whether or not to remain on the site.
15.2 Drivers must be allowed a minimum period of 10 minutes to leave a site after a pre-paid or permitted period of parking has expired”.

The defendant does not believe that the Claimant allowed a sufficient amount of time that could be deemed “a reasonable grace period” to enter and exit said carpark.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant.
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

8. Vehicle Control Services Ltd are not the lawful occupier of the land. The defendant has 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.
8.1. 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.
8.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
8.3 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

9. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £245.42. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
9.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
9.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
9.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

Failure to set out clear parking terms

10. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose 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.
10.1. The Defendant avers that the parking signage in this matter was, without prejudice to her primary defence above, woefully inadequate.
10.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation; and
10.1.2 this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
10.1.3.The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
10.1.4. 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

11. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
11.1. The Defendant also disputes that the Claimant has incurred £50 solicitors costs.
11.2. The Defendant has a reasonable belief that the Claimant has not incurred £70 costs to pursue an alleged £100 debt.
11.3. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
11.4. The Claimant described the charge of £50.00 "legal representative’s costs" not "contractual costs". CPR 27.14 does not permit these to be recovered in the Small Claims Court.

Wholly unreasonable and vexatious claim

12. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

13. 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.

14. It is denied that the Claimant has any entitlement to the sums sought.

15. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

16. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

17. In the event the claim progresses, as an unrepresented litigant in person, the defendant reserve the right to alter, vary and add to this defence or reply to any further particulars of claim/documents the Claimant may provide.


STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

Name

Signed

Dated

Ok...thank you KeithP....its probably better to take that bit out if it's no longer relevant. I find these acts really hard going reading them all.

Thank you KeithP. I made the change you suggested and its now emailed. I saved the defence as pdf and inserted a digital (handwritten) signature.
The pdf was saved as first name + last name + claim no + defence. The subject line was basically same - i.e claim number and "Defence Statement".

I didn't know if everyone else usually leaves the body of the email blank but I put in a line "Please accept attached signed and dated defence in response to claim number XXXXXX. I look forward to receiving a confirmation email acknowledging receipt.
Now I wait to see if the BW pay the filing fee and take it further and questionnaire directions come through....I did read somewhere though not to wait but to download it?