Defence statement: Please comment

Background :

17 March 2017: The car was parked in a resident parking whilst not displaying a permit [the car driver is not a resident]. The car was not occupying anyone elses place. There wasn't a PCN attached to the windscreen that day, but someone had put a note on the car saying "this is permit parking only, please display your permit".

27 June 2017: which is more than 3 months later, I received a notice to keeper.

25 July: Parking company rejected my appeal and sent me pictures of the car parked in the resident only parking with a POPLA code giving me 28 days to appeal to POPLA.

4 August: I received a letter Solicitors demanding payment by 11 August! This payment deadline does not even give me time to get my POPLA appeal in and if I pay, I can't appeal to POPLA!

17 August : I received a County Court Claim Form. I submitted my appeal to POPLA about 4 weeks ago. I am still awaiting a decision.

I need someone to check over my defence form which I have pasted below to see if it needs any revisions:-

In The County Court

Claim Number XXX

Between:

PPC Limited (Claimant)

v

XXX (Defendant)

_________________________________________________________________
Defence Statement
_________________________________________________________________

I am ******* the defendant in this matter and registered keeper of vehicle *****. My address for service is ****.

As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

Save as specifically admitted in this defence the Defendant denies each and every allegation set out in the Particulars of Claim, or implied in Pre-action correspondence.

I deny I am liable for the entirety of the claim for each of the following reasons:


1) Lack of particulars of claim

The Particulars of Claim contains sparse details comprising two paragraphs, and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking without displaying a valid permit” and “failed to comply with Terms and Conditions of the contractual agreement” 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, example of signage at the site, nor anything which could be considered a fair exchange of information and therefore fails to comply with CPR 16.4, (Practice Directions 16 7.3(1) and 7C 1.4(3A). (OR HAVE THEY GIVEN ENOUGH DETAIL IN THEIR CLAIM FORM? PLEASE SEE CLAIM FORM ABOVE)

2) Claim form

The claim form is not signed and only states “Carick Reid Solicitors” and therefore is not a valid statement of truth.


3) Non compliance with pre-court advice/ADR (PoPLA/BPA)

The Claimant did not engage with alternative dispute resolution (PoPLA) in good faith. City Permits have breached the BPA Code of Pratice and CPR pre-action protocols by starting debt collection legal proceedings against the Registered Keeper before the ADR process under PoPLA's period of appeal has expired. The Registered Keeper received a rejection of appeal letter which included a POPLA code from City Permits Ltd on 25 th July 2017, shortly thereafter City Permits Ltd commenced debt recovery legal proceedings on or before 4 th August 2017 instructing Carrick Read Solicitors who instructed the County Court to issue a Claim Form form on or before 17 August 2017. The Supreme Court Judges in the Beavis case held that a BPA CoP is effectively 'regulation' for the private parking industry, full compliance with which is both expected and binding upon any parking operator.


4) Legal costs and court costs – recoverable/ to be struck out

It is submitted that all costs (Court and solicitors fees) are simply unrecoverable due to the Claimant not following ADR as specified by the BPA and CPR Pre-action protocols, and as specified in the Claimants own rejection of appeal letter dated [xx/xx/xx], and are an attempt at double recovery by the Claimant, which would not be recoverable in any event. CPR state “No proceedings should be started while the possibility of settlement is still actively being explored” which the client has failed to follow and therefore I ask that all the Claimants costs should be struck out and the proceedings stayed while ADR (PoPLA) is undertaken to comply with the pre-action protocol/Practice Direction. Furthermore, I ask that the Defendant should be awarded costs for time at litigant-in-person rate, stationary and postage, and loss of pay for the inconvenience.


5) PoFA non-compliance

If the Claimant is intending to pursue this claim against the Defendant on the basis that the Defendant is the registered keeper then the Claimant has failed to show that the conditions for recovering this charge under Schedule 4 of the Protection of Freedoms Act 2012 have been met. The Defendant disputes that any of the conditions necessary for a claim to be pursued against the keeper of the vehicle have been met.

The Claimant claims to have affixed a Notice to Driver on 17th March 2017 to the vehicle according to their Notice to Keeper. Their Notice to Keeper is dated 27th June 2017 which is in excess of the permitted 56 days as specified in the Protection of Freedoms Act 2012 (PoFA) to hold the keeper liable.

Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.

The Protection of Freedoms Act requires that the Notice [to Keeper], to be valid, must be delivered ...(Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver.

As the conditions of PoFA have not been met, City Permits Ltd has no legal right to enforce the charge against the keeper, and also has no legal right to require the keeper to name the driver. PoFA 2012 has strict requirements for the transfer of liability and these requirements have not been met in this case. City Permits Ltd have failed to transfer liability from the driver to the registered keeper of the vehicle.

Furthermore, a Notice to Driver was not affixed to the vehicle as claimed by City Permits in the Notice to Keeper, and City Permits have not been able to provide any photographs as evidence of issuing a Notice to Driver.

PoFA 2012 Section 7 (4) specifies The notice must be given ...(a) before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and by affixing it to the vehicle.

6) Claimant has not established the driver

I AM THE KEEPER AND DO NOT WISH TO DECLARE THE DRIVER - SHOULD I LEAVE THE BELOW IN OR TAKE IT OUT?

Should the Claimant try to suggest that there is any other method whereby a vehicle’s keeper can be held liable for a charge where a driver is not identified, I draw your attention to the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA.

I draw your particular attention to the section entitled “Keeper Liability” in which Mr. Greenslade explains that:

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle................. However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver”.

7) Landowner authority

It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name. Even if this is produced, it is submitted that there is no contract offered to drivers not displaying a permit, so alleged 'parking without displaying a valid permit' parking can only be an event falling under the tort of trespass. As was confirmed in the Beavis case vs ParkingEye (2015), ParkingEye could not have claimed any sum at all for trespass, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none in this material case).

8) Inadequate Signage to form a contract

The Claimant did not display clear, large, prominent, well lit signs within the site that were capable of being read from the driver's seat and/or forming a contract, contrary to the BPA CoP, PoFA and the Beavis Vs ParkingEye 2015 case.

The minimum standards set out in section 18 of the British Parking Association (BPA) Code of Practice. Within section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.”
Furthermore, section 18.3 of the BPA Code of Practice states: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

In addition to this, within PoFA 2012, it discusses the clarity that needs to be provided to make a motorist aware of the parking charge.
Specifically, it requires that the driver is given “adequate notice” of the charge. The Act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

This case can be distinguished from ParkingEye v Beavis [2015] 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.

However City Permits Ltd signs do not state £100 will be charged for a breach in clear and bold large letters as required by the Beavis vs ParkingEye case and as such the signage does not provide the 'adequate notice' of the parking charge which is mandatory under Schedule 4 of the POFA, the BPA CoP and ParkingEye v Beavis [2015] case. Therefore no contract has been formed between the driver and the Claimant.

9) Claimant did not comply with the Consumer Rights Act

Any ‘charge’ or terms on signage on the day was not seen but even if the court believes signs were displayed, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015.


10) Forbidding signage
Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis vs ParkingEye case, the Claimant offered no licence to park if not a ‘permit holder’. A purported licence to stop without a permit, in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that same conduct is, on the other hand, expressly prohibited in the signage wording. This does not create any possible contract.

This is clear from several cases. In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.
In UKPC v Masterson B4GF26K6[2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.
In Horizon Parking v Mr J C5GF17X2 [2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

11) No legitimate interest in enforcing a charge

In Beavis Vs ParkingEye 2015 the judgement ruled that the charge was necessary to deter overstaying; if they did not issue penalties then the car park would be unfairly used. However, if there is no legitimate interest, for example, if the vehicle was parked in a residential area, then the charge would be an unenforceable penalty. The vehicle in question was parked in such a way to ensure that access by people to their own parking spaces was not restricted, nor was the vehicle causing an obstruction of the roadways to emergency or delivery vehicles, the claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question, the amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable. Hence as City Permits Ltd does not have a legitimate interest in controlling parking, the charge issued is a penalty and therefore unenforcable.

County Claim Form can be seen at hxxps://i.imgur.com/PfS573z.jpg

Thanks for reading and your help.