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  • FIRST POST
    • GolfR12
    • By GolfR12 13th Apr 18, 12:10 PM
    • 31Posts
    • 12Thanks
    GolfR12
    URGENT: County Court Claim
    • #1
    • 13th Apr 18, 12:10 PM
    URGENT: County Court Claim 13th Apr 18 at 12:10 PM
    Hi guys,

    I was wondering if someone could help me out. I have recently moved back into my family house after living with a friend for a few months. I have received 4 county court claims from Northampton County Court for Claims raised by Euro Parking Services! I did not receive any of the other letters as they were returned as gone away by my family as I was not living at home for a few months due to personal reasons.

    The charges claimed are around the 250 mark for each one! I was the keeper of the vehicle (which has since been sold) however, I am unsure of who the driver was at the time as a few people had access to my vehicle.

    I have done some research on the building where they were issued and it is a residential building. The only way to get into the car park is by having a key fob or a resident to let you in. Residents will have to give the visitor a visitor pass to be displayed which I believe was displayed each time.

    I need to file my defence for 2 of the claims by tomorrow (very late notice I know) and I have another couple of weeks for the other 2.

    Unfortunately, I am not very good with these sorts of things and I think I will struggle filing a good defence and was wondering if you guys could assist. Is it ok for me to include all the above details as my defence or would I need to add additional information?

    Many thanks for your help in advance
Page 2
    • GolfR12
    • By GolfR12 15th Apr 18, 3:18 PM
    • 31 Posts
    • 12 Thanks
    GolfR12
    Hi guys,

    I am looking to finish off my defence today and had a few things I wanted to check:

    1) The part you suggested I add from your link, were you suggesting I add point 10 or the other points below? I added point 10 as my point 10 in my draft above.

    2) I do not have access to the tenancy agreement as I am unsure if the resident is still living there. Does this affect my defence?

    3) Do I include the particulars of my case outlined in post 1? I.e. letters were returned as gone away as I was living with a friend for a few months, there is a gated entrance to the car park which means only way of entry is using a key fob or being granted access by a resident?
    • GolfR12
    • By GolfR12 15th Apr 18, 6:35 PM
    • 31 Posts
    • 12 Thanks
    GolfR12
    Draft Defence
    Please see my defence below. I have highlighted the parts I am unsure about in red along with my comments. I would really appreciate it if some could critique this for me.

    IN THE COUNTY COURT
    Claim No.: xxxxxxxx (all five claim numbers to be included)

    Between

    EURO PARKING SERVICES LTD
    (Claimant)

    -and-


    xxxxx
    (Defendant)

    __________________________________________________ _________________________

    DEFENCE STATEMENT
    __________________________________________________ _________________________


    Preliminary

    1. Due to using a robo-claim automatic claim model with no human checks made regarding facts, evidence or overlap of similar cases whatsoever, this Claimant has, negligently and unreasonably, filed five separate claims about precisely the same matters, same facts, same vehicle, same car park, just different dates. If the court believes the claimant has set out a clear cause of action leading to a potential claim in law against this Defendant, in order to spare court resources and costs and under the doctrine of res judicata, the Defendant respectfully asks that there be only one hearing, to deal with all five repeated claims. Thus, the Defendant requests the cases are combined under Civil Procedure Rules 3.1(2)(g) and 3.1(2)(h) either by the CCBC putting the matter before a Judge in Northampton before/at the point of Allocation to track, or once allocated, by Order of the Defendant's local court Judge when issuing Directions.

    2. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

    3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation. With respect to my scenario, all correspondence was returned to sender as gone away as I moved out of my family home for a period of time due to personal reasons. Shall I simply remove this sentence?

    Background

    4. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark xxxxxx which is the subject of these proceedings. The vehicle was insured with xxxxx Insurance with two named drivers permitted to use it. Furthermore, several drivers had access to this vehicle via their own Comprehensive insurance policies which allowed them to drive other vehicles with the consent of the registered keeper. I have added this bit in, is this ok?

    5. It is admitted that on (dates), the Defendant's vehicle was parked at (location).

    6. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
    6.1. 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")
    6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
    6.2.1. there was a relevant obligation either by way of a breach of contract, trespass or other tort; and
    6.2.2. 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.

    6.3. 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.

    Authority to Park and Primacy of Contract

    7. 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 current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on 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 copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

    8. The Defendant avers that the operator 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.
    I am unsure of how to amend or if I should include this part at all as I do not know who the resident being visited by the driver of the vehicle was, I am unsure whether they still reside their and do not have access to any lease/tenancy agreements. I am struggling with this part the most. Any help would be much appreciated.

    9. Accordingly it is denied that:
    9.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
    9.2. there was any obligation (at all) to display a permit; and
    9.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

    Alternative Defence - Failure to set out clearly parking terms

    10. 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.
    10.1. The Defendant avers that the parking signage in this matter was, without prejudice to his primary defence above, 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;
    10.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
    10.1.3. 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
    10.2. 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.

    11. The defendant was completely unaware that the site was being enforced by any restrictive terms. The Defendant parked legitimately in one of many unallocated visitor bays, used without penalty or charge by various visitors at the site. The residents and the Defendant shared the legitimate expectation of a continuing right of way and unfettered right to use the demised parking bays for visitors with no charge.

    12. The Defendant has visited the resident regularly and has always enjoyed the right to park in the visitor spaces. Since there has been no variation of the residents' agreements, a Managing Agent cannot impose this charging regime via an onerous back door method of 'signs and permits' with charges imposed where parking was free.
    Points 11 & 12 seem to suggest that the defendant was the driver of the vehicle. Do I amend this to 'defendant or lawful users of his vehicle' or is this fine as it is the alternate defence?
    12.2. The Claimant cannot be heard to point to their sparse/unlit signs, as if the Defendant should have known about some sort of purported 'contract'; they could have put up huge billboards with neon lights and still those terms cannot affect and override the primacy of contract of leaseholders in possession.

    13. The Claimants present a significantly detrimental material change and provide no service that is for the comfort and convenience of the visitors; indeed the industry is made up of rogue operators whose modus operandi is to issue predatory, unfair tickets, then sue people under the excuse of the completely different Beavis case. On 2nd February 2018 in the second reading debate about private parking firms, the House of Commons unanimously concluded: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

    14. For the avoidance of doubt, the Defendant has entered into no contract with any parking firm.

    15. 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.

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

    17. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

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

    Any critique/help would be highly appreciated. Thank you guys in advance for all your help thus far.
    Last edited by GolfR12; 15-04-2018 at 8:26 PM. Reason: incorrect information
    • KeithP
    • By KeithP 15th Apr 18, 8:08 PM
    • 8,716 Posts
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    KeithP
    Is that your full name that I can see there?
    .
    • GolfR12
    • By GolfR12 15th Apr 18, 8:28 PM
    • 31 Posts
    • 12 Thanks
    GolfR12
    No that was copy and pasted, cheers Keith

    Any thoughts on the defence?
    • Coupon-mad
    • By Coupon-mad 16th Apr 18, 2:47 AM
    • 60,110 Posts
    • 73,251 Thanks
    Coupon-mad
    Bump for replies in the morning, if not email it to the CCBCAQ email address urgently, as a signed/dated attachment (obviously putting 'URGENT - defence re claim xxxxxxxxx' in the subject line).
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • GolfR12
    • By GolfR12 16th Apr 18, 8:06 AM
    • 31 Posts
    • 12 Thanks
    GolfR12
    Morning bump
    • nosferatu1001
    • By nosferatu1001 16th Apr 18, 10:16 AM
    • 3,150 Posts
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    nosferatu1001
    Of course you do not identify the D as the driver, if the D was not the driver. If the D was not the driver you DENY that you were the driver in the opening, and in addition point out that there are AT LEAST 2/3/4/5/6/7 other drivers who had your permission to drive the vehicle for their own PRIVATE business (meaning you get it in early thatr CPS vs AJH films fcannot apply as the driver was not your Agent)

    You cannot say they have not engaged in pre action if the letters were marked not known at this address. They tried, but wha tthey didnt do was try to find your ACTUAL address at the time.
    • GolfR12
    • By GolfR12 16th Apr 18, 11:34 AM
    • 31 Posts
    • 12 Thanks
    GolfR12
    Many thanks nosferatu.

    Does anyone have any thoughts on points 7 and 8? Last two points that I am struggling with.
    • Fruitcake
    • By Fruitcake 16th Apr 18, 11:49 AM
    • 37,232 Posts
    • 83,965 Thanks
    Fruitcake
    Defence, not Defence Statement.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • GolfR12
    • By GolfR12 16th Apr 18, 11:55 AM
    • 31 Posts
    • 12 Thanks
    GolfR12
    Cheers fruitcake.

    Just to confirm points 11 and 12, am I just amending this to !!!8216;defendant or driver of the vehicle!!!8217; ?
    • Quentin
    • By Quentin 16th Apr 18, 12:05 PM
    • 36,863 Posts
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    Quentin
    In 6 the defendant denies being the driver.

    Thus when referring to what happened when the vehicle was parked you refer to what the driver did, not what you (the defendant) did
    • GolfR12
    • By GolfR12 16th Apr 18, 12:44 PM
    • 31 Posts
    • 12 Thanks
    GolfR12
    Thanks Quentin.

    Got a couple of hours before I need to submit, so will wait to see if I can get any assistance on points 7 and 8. If not, I will remove this points and submit the defence

    Thank you so much to everyone for your help so far. I wouldn!!!8217;t have been able to get this far without your help.
    • Coupon-mad
    • By Coupon-mad 16th Apr 18, 1:05 PM
    • 60,110 Posts
    • 73,251 Thanks
    Coupon-mad
    3. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

    With respect to my scenario, all correspondence was returned to sender as gone away as I moved out of my family home for a period of time due to personal reasons. Shall I simply remove this sentence?
    I would change the end of it to:

    Despite the fact that the Defendant was not living at the address during the material time - due to personal reasons, which the Defendant later learnt that the Claimant knew, due to all their letters being returned marked 'gone away' - the Claimant made no attempt to trace the Defendant and issued the claim to the address where they knew the Defendant had not been residing.
    Is this right, they sent it to an address where letters had been bounced from?


    Background

    4. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark xxxxxx which is the subject of these proceedings. The vehicle was insured with xxxxx Insurance with two named drivers permitted to use it. Furthermore, several drivers had access to this vehicle via their own Comprehensive insurance policies which allowed them to drive other vehicles with the consent of the registered keeper.

    I have added this bit in, is this ok?
    Yes, that's fine if there were 2 possible drivers.



    Authority to Park and Primacy of Contract

    7. 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 current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement for visitors to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms and puts the Claimant to strict proof otherwise. 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 copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

    8. The Defendant avers that the operator 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.

    8.1. Under the Landlord and Tenant Act 1987, for such a variation to have been agreed by the residents, it is the Defendant's understanding that 75% of the parties must have consented and not more than 10% must not have objected to any proposed material change (which this nuisance most certainly is). This is the Claimant's case to prove on the balance of probabilities and they have failed.

    8.2. Notwithstanding the above, it is a relevant fact that this is a secure car park and the only way to get into the car park is by having a key fob or a resident to let a driver in. That deliberate action by residents or by use of a key fob, authorises every visitor at this location and there can be no question of the driver being considered 'unauthorised'.

    I am unsure of how to amend or if I should include this part at all as I do not know who the resident being visited by the driver of the vehicle was, I am unsure whether they still reside their and do not have access to any lease/tenancy agreements. I am struggling with this part the most. Any help would be much appreciated.
    Just put the Claimant to strict proof that the lease agreements of residents were formally varied, after a 75% consensus in agreement.




    As for these points, some suggested amendments, if this makes sense for your case?
    11. The defendant avers that the driver must have been completely unaware that the site was being enforced by any restrictive terms, because drivers of this vehicle are law abiding and circumspect, and would not have ignored prominent terms nor accepted any sign dressing up an 'offer' to park for 100 when the car could have been parked nearby for 1 or so in a pay & display car park. The residents and visitors at residential locations like this, have a legitimate expectation of a right of way and unfettered right to use the demised parking bays for visitors, with no charge.

    12. Since there has been no variation of the residents' agreements (the Claimant is put to strict proof) a Managing Agent cannot impose this charging regime via an onerous back door method of 'signs and permits' with charges imposed on visitors and residents, where parking was previously free.
    Maybe like the above?
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • GolfR12
    • By GolfR12 16th Apr 18, 2:39 PM
    • 31 Posts
    • 12 Thanks
    GolfR12
    Thank you so much Coupon Mad.

    I have submitted the defence so let!!!8217;s hope for the best

    Just to confirm, as I have emailed the defence across, there are no further actions for me take on the MCOL website? I have gone through the newbies thread but just wanted to be sure.

    Many thanks everyone
    • nosferatu1001
    • By nosferatu1001 16th Apr 18, 3:51 PM
    • 3,150 Posts
    • 3,861 Thanks
    nosferatu1001
    No, you do nothign more there. You now wait your DQ - assuming Gladstones you WILL get teh usual "heard on papers" rubbish.
    • GolfR12
    • By GolfR12 24th Apr 18, 8:22 PM
    • 31 Posts
    • 12 Thanks
    GolfR12
    Hi guys. Quick update.

    I sent off my defence for all 5 claims before the 5pm deadline. I included all claim numbers on the defence letter as well as the email subject. I received an acknowledgment letter for 4 out of the 5 claims. I therefore emailed the mailbox requesting an acknowledgment for the final claim; however, seemed to receive either an automated response or a response without any thought behind it advising that a judgement had been served for the claim. The claim I didn!!!8217;t receive an acknowledgment for was coincidentally one of the claims which had a deadline of 16th April which is the day I submitted the defence. I then received the letter of judgement for that claim.

    I contacted the Helpdesk the following day and made them aware of this, the agent acknowledged that my defence was received on time; however, advised me to forward on my original email FAO a manager so they can look into this. I have not heard anything since so I will call them tomorrow to chase this up. They have clearly screwed up.

    I!!!8217;ve also received a letter from Gladstone!!!8217;s dated 18th April which includes their questionnaire. They have as stated requested for the case to be dealt with on paper. The letter also states their client has chosen not mediate; however, the client would be happy to listen to any genuine payment proposals

    I have not received a questionnaire as of yet, so do I need to do anything at this stage?

    Many thanks
    • Coupon-mad
    • By Coupon-mad 24th Apr 18, 9:01 PM
    • 60,110 Posts
    • 73,251 Thanks
    Coupon-mad
    You should get 4 DQs from the court, and could ask the Helpdesk when you next follow up the issue about claim #5. The court need to rescind the judgment, they were wrong.

    If it goes too long with no DQ, download the form from the court webpages 'form finder'.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • GolfR12
    • By GolfR12 4th May 18, 12:10 PM
    • 31 Posts
    • 12 Thanks
    GolfR12
    So I spoke to the Helpdesk a few days ago, they have advised that it has been passed on to a Judge to decide whether the Judgement will be rescinded. Surely they can see th defence for ALL claims was received on time and this was on error on their part so I don!!!8217;t understand why it has been passed to a judge to made a decision?! They advised it could take 3-4 weeks

    I have checked my credit file this morning and I have had a CCJ placed on there. I am absolutely FUMING!!! I have worked really hard to get my credit rating to a good position in order to purchase a house towards the end of the year and now this happens. Should the CCJ have been placed or should they have waited for the judges decision? Please help as this has really made me panick now.
    • Quentin
    • By Quentin 4th May 18, 12:30 PM
    • 36,863 Posts
    • 21,000 Thanks
    Quentin
    The ccj will have gone on the register immediately it was issued, but the credit score agencies don't usually update on a daily basis, hence the delay in discovering it registered.


    Complain to the court, and point out they already confirmed their error over this!
    • GolfR12
    • By GolfR12 4th May 18, 12:59 PM
    • 31 Posts
    • 12 Thanks
    GolfR12
    So I have just spoken to someone from the Helpdesk (the first person hung up on me as he seemed to struggle with my query). The advisor I spoke to confirmed the judgement has been rescinded and will be removed from my credit rating within 3-4 weeks.

    I asked the advisor why the CCJ was issued when the defence was filed on time, she advised it wasnt processed so the claimant entered judgement.

    Is it worth raising a complaint on the basis that had the defence been processed correctly then the claimant would not have entered judgement or is it completely pointless? This whole issue has caused me a lot of distress and inconvenience, numerous phone calls, affected my credit rating (I could have been applying for credit this month for all they know).

    Thanks
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