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  • FIRST POST
    • VOS
    • By VOS 29th Jun 18, 10:32 PM
    • 7Posts
    • 2Thanks
    VOS
    Small Claim Form Received (no previous MSE Forum guidance received)
    • #1
    • 29th Jun 18, 10:32 PM
    Small Claim Form Received (no previous MSE Forum guidance received) 29th Jun 18 at 10:32 PM
    Hello all,

    I have just received two court claim forms and I am looking for some help.

    I thought i would start the thread, as advised, whilst I read through the forum and attempt to draft a defence.

    The History to Date:

    The 2 claim forms are in response of two separate tickets issued over one weekend in October 2017. They were issued by Vehicle Control Services to a car which i am the registered keeper of. The car was parked in the correctly allocated bay of a friend's residential car park, however the permit was not on display. (Proof of bay allocation and permit are available in photos).

    An appeal to them was made, denied and then (now regrettably) subsequent letters were ignored, until finally a Letter Before Court Claim was received. It was at this point i visited the forum for advice and then sent them a robust reply. No reply was received from the letter and now the claim forms have arrived.

    Any advice on how to proceed next is very much appreciated. Feel free to ask for any further information you require from me. Until then, I will look to construct and post a defence.

    Many thanks in advance

    Vos
Page 1
    • KeithP
    • By KeithP 29th Jun 18, 10:45 PM
    • 10,587 Posts
    • 10,973 Thanks
    KeithP
    • #2
    • 29th Jun 18, 10:45 PM
    • #2
    • 29th Jun 18, 10:45 PM
    Firstly it looks like you have done pretty much what you would've been advised to do had you posted here at the beginning.

    You now need to read post #2 of the NEWBIES FAQ sticky thread.

    Acknowledge Service of the claim to buy yourself extra time to prepare your Defence.

    There is a pictorial dropbox link in NEWBIES post #2 which describes how to do the AoS.

    What are the dates of issue on your Claim Forms?

    If both Claims are exactly the same but for different dates then the Claimant should be merging these into one claim.
    .
    • Coupon-mad
    • By Coupon-mad 29th Jun 18, 11:06 PM
    • 63,830 Posts
    • 76,484 Thanks
    Coupon-mad
    • #3
    • 29th Jun 18, 11:06 PM
    • #3
    • 29th Jun 18, 11:06 PM
    As above, follow the NEWBIES thread and carefully take your advice from posters who are regulars.
    Last edited by Coupon-mad; 03-07-2018 at 12:02 AM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • VOS
    • By VOS 2nd Jul 18, 10:48 PM
    • 7 Posts
    • 2 Thanks
    VOS
    • #4
    • 2nd Jul 18, 10:48 PM
    • #4
    • 2nd Jul 18, 10:48 PM
    Thank-you for replying

    I am using the template defence listed below, but awaiting confirmation from the resident regarding the lease agreement.

    A little more advice is needed whilst i wait:

    @KeithP the date of issue was 26/06/18 for both clams. I can confirm that the particulars of the claim and the amount are exactly the same. will this cause a complication?

    One thing i wanted to clear up from my original post was that my appeal was made to the parking company, not through POPLA. When presented the Letter Before Claim, I attempted to go through the POPLA route, as advised in the practice direction, and had no response. Is it worth mentioning this in my defence?
    There was also a blatant lie in their letter regarding the use of first class post, but it was actually second. Again, is this worth mentioning? Perhaps as a judge of their character?


    DEFENCE

    Preliminary
    1. 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.

    2. 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.

    Background
    3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXX which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it.

    4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

    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 !!!8216;relevant obligation!!!8217; 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 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
    6. It is denied that the Defendant or lawful users of his/her 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.

    7. The Defendant avers that the operator!!!8217;s 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.

    7. Accordingly it is denied that:
    7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
    7.2. there was any obligation (at all) to display a permit; and
    7.3. 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
    8. 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.
    8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
    8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
    8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
    8.1.3. 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
    8.2. 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.

    9. 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.

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

    11. 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 believe the facts contained in this Defence Statement are true.

    Kind regards

    Vos
    • Coupon-mad
    • By Coupon-mad 3rd Jul 18, 12:08 AM
    • 63,830 Posts
    • 76,484 Thanks
    Coupon-mad
    • #5
    • 3rd Jul 18, 12:08 AM
    • #5
    • 3rd Jul 18, 12:08 AM
    I have just received two court claim forms and I am looking for some help.

    ...the date of issue was 26/06/18 for both claims. I can confirm that the particulars of the claim and the amount are exactly the same. Will this cause a complication?
    You should mention it in both defences, giving the other claim number and asking that the matter is referred to a Judge to strike out one of the claims and/or order that the two claims are merged, so that the exact same facts are not pursued twice, wasting both your time and the court's time and leading to unnecessary expense and costs risks for the consumer, who reasonably expects the matter(s) to be heard just once.

    Then repeat that in a covering letter at DQ N180 stage in a few weeks. Keep raising it at every stage, till a Judge might pick it up and agree with you.

    One thing i wanted to clear up from my original post was that my appeal was made to the parking company, not through POPLA. When presented the Letter Before Claim, I attempted to go through the POPLA route, as advised in the practice direction, and had no response. Is it worth mentioning this in my defence?
    There was also a blatant lie in their letter regarding the use of first class post, but it was actually second. Again, is this worth mentioning? Perhaps as a judge of their character?
    Both of the above could be mentioned at Witness Statement stage as they are commentary on what happened and how the C is unreasonable, but they are not defence points, per se.
    Last edited by Coupon-mad; 04-07-2018 at 10:01 AM.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • IamEmanresu
    • By IamEmanresu 4th Jul 18, 6:28 AM
    • 3,769 Posts
    • 6,179 Thanks
    IamEmanresu
    • #6
    • 4th Jul 18, 6:28 AM
    • #6
    • 4th Jul 18, 6:28 AM
    however the permit was not on display
    Why was this

    The car was parked in the correctly allocated bay of a friend's residential car park
    It is denied that the Defendant was the driver of the vehicle
    Can you prove you were somewhere else and did you indicate at an earlier appeal that you were not the driver.

    Seems (unless there is a good reason for no permit) that failing to apply Keeper Liability would be your best bet. To make that a solid defence, you'd have to be able to show you were somewhere else or a judge might just decide you were driving on the Balance of Probabilities (BoP)

    The one thing that everyone should bare in mind with these cases is "what is the judge's job". It is to make a decision where issues are unclear on the BoP. If you counter disputed issues by providing evidence, it will be a rubber-stamped win for a defendant.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • The Deep
    • By The Deep 4th Jul 18, 9:45 AM
    • 10,538 Posts
    • 10,374 Thanks
    The Deep
    • #7
    • 4th Jul 18, 9:45 AM
    • #7
    • 4th Jul 18, 9:45 AM
    Have you read these

    http://parking-prankster.blogspot.com/2016/11/residential-parking.html

    https://www.parkingcowboys.co.uk/residential-parking/

    Also read up on primacy of contract and complain to your MP


    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

    Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    Hospital car parks and residential complex tickets have been especially mentioned.

    The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

    http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

    and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.
    You never know how far you can go until you go too far.
    • VOS
    • By VOS 10th Jul 18, 8:36 PM
    • 7 Posts
    • 2 Thanks
    VOS
    • #8
    • 10th Jul 18, 8:36 PM
    • #8
    • 10th Jul 18, 8:36 PM
    Many thanks coupon mad, i will bare that all in mind!

    Do you think it is enough to rely on keeper liability or poor signage? I am struggling to get a hold of the lease for the space, as the property is rented through a letting agent on behalf of the owner.

    Why was this

    Can you prove you were somewhere else and did you indicate at an earlier appeal that you were not the driver.

    Seems (unless there is a good reason for no permit) that failing to apply Keeper Liability would be your best bet. To make that a solid defence, you'd have to be able to show you were somewhere else or a judge might just decide you were driving on the Balance of Probabilities (BoP)

    The one thing that everyone should bare in mind with these cases is "what is the judge's job". It is to make a decision where issues are unclear on the BoP. If you counter disputed issues by providing evidence, it will be a rubber-stamped win for a defendant.
    Originally posted by IamEmanresu
    The reason for no permit was a simple mistake. As I said, the car was in correct bay and had permission. It may be difficult to prove i was somewhere else.

    My issue at the moment is that keeper liability may be th only argument i can reply on, as getting hold of the lease documentation is proving to be difficult.


    Have you read these

    URL
    URL

    Also read up on primacy of contract and complain to your MP

    .
    Originally posted by The Deep
    I have, and it is primacy of contract i am hoping to argue, but as just mentioned above am not sure i will be able to as i am struggling to get a hold of the lease. Local MP or the MP local to the incident, either way is that not a long term objective which will unfortunately not be able to help with this case in particular?
    • Coupon-mad
    • By Coupon-mad 10th Jul 18, 10:01 PM
    • 63,830 Posts
    • 76,484 Thanks
    Coupon-mad
    • #9
    • 10th Jul 18, 10:01 PM
    • #9
    • 10th Jul 18, 10:01 PM
    Proving you were elsewhere on the 'BoP' can be as simple as a second Witness Statement (alongside yours) from someone in the family, a colleague, etc.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • VOS
    • By VOS 18th Jul 18, 5:46 PM
    • 7 Posts
    • 2 Thanks
    VOS
    Okay. great. I think that should be more than possible. I am essentially just waiting now to obtain a copy of the lease.

    Two questions:

    Will i be able to rely on the authority to park defence without a copy of the lease (highlighted yellow below)?
    Is it enough to rely only upon the second defence, Failure to Set Out Clearly Parking Terms?

    I also wanted to thank-you for you support and input. I have seen you are very active on this forum and I am impressed by the time you take to help all of us in need!



    Authority to Park and Primacy of Contract
    6. It is denied that the Defendant or lawful users of his/her 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.

    7. The Defendant avers that the operator!!!8217;s 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.

    7. Accordingly it is denied that:
    7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
    7.2. there was any obligation (at all) to display a permit; and
    7.3. 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
    8. 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.
    8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
    8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
    8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee!!!8217;s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
    8.1.3. 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
    8.2. 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.
    • VOS
    • By VOS 24th Jul 18, 8:16 PM
    • 7 Posts
    • 2 Thanks
    VOS
    Hi Coupon-mad,

    I was wondering if you have had time to consider my previous post

    Vos
    • IamEmanresu
    • By IamEmanresu 25th Jul 18, 5:03 AM
    • 3,769 Posts
    • 6,179 Thanks
    IamEmanresu
    A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.
    Like this. Wonder why we've never thought of it before.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • VOS
    • By VOS 26th Jul 18, 4:38 PM
    • 7 Posts
    • 2 Thanks
    VOS
    Well do you think it will be possible even without an exact copy of the lease?
    • Coupon-mad
    • By Coupon-mad 26th Jul 18, 4:40 PM
    • 63,830 Posts
    • 76,484 Thanks
    Coupon-mad
    Anything goes in small claims and you have a decent case v this scam.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
    TWO Clicks needed Look up, top of the page:
    Main site>>Forums>Household & Travel>Motoring>Parking Tickets Fines & Parking - read the NEWBIES THREAD
    • VOS
    • By VOS 26th Jul 18, 4:52 PM
    • 7 Posts
    • 2 Thanks
    VOS
    I'll get the final copy ready and post for approval then! Thanks
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