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  • FIRST POST
    • Saki0807
    • By Saki0807 15th Nov 19, 4:36 PM
    • 10Posts
    • 2Thanks
    Saki0807
    Please kindly REVIEW MY DEFENCE. AOS sent a fortnight ago.
    • #1
    • 15th Nov 19, 4:36 PM
    Please kindly REVIEW MY DEFENCE. AOS sent a fortnight ago. 15th Nov 19 at 4:36 PM
    Background: Free car park -2.5 hours; CEL authorised to manage private property car park; ANPR at entrance and exit. Naive admission originally that I was the driver. Appeal submitted to POPLA with a clear argument on unclear signage/insufficient notice and photographic proof of overgrown trees obscuring many signs. POPLA did not receive my PDF so my appeal has never actually been read!- verbal agreement to review my case many months later on admission by a POPLA operator that they had historic problems with pdf files. Written word contradicts verbal as they didn't carry out any of these promises and just repeated their original decision - telephone recordings requested last week as per GDPR. Don't think this line of argument should be added to my defence??

    AOS submitted (sent by signed for first class) and have until END of November to submit my defence. I have spent a long time on researching and reading so I am hoping I don't need to substantially edit my defence. I would REALLY appreciate some feedback.
    Thank you to this forum, it has been a genuine life saver and most importantly has given me the courage to defend myself against these money grabbing morons.

    (Do I email my defence?)

    IN THE COUNTY COURT

    CLAIM No: xxxxxxxxxx

    BETWEEN:

    UK CAR PARK MANAGEMENT LTD (Claimant)

    -and-

    xxxxxxxxxxxx (Defendant)

    ________________________________________
    DEFENCE
    ________________________________________


    1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
    2. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from the driver’s alleged breach of contract, when parking on the material date in a marked bay at xxxxx car park.

    3. The Particulars of Claim state do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

    4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
    5. The claimant states that the defendant’s vehicle was captured by their ANPR system at the entrance and exit to the site. However, this is merely an image of the vehicle in transit, entering and leaving the car park in question. The ANPR system does not take into account any waiting times within the car park when the car is not parked.
    6. Further, the Claimant’s signs fail to transparently warn drivers of what the ANPR date will be used for, which breaches the BPA Code of Practice and the Consumer Protection for Unfair Trading Regulations 2008 due to the inherent failure to indicate the ‘commercial intent’ of the cameras.

    7. Further and in the alternative, it is denied that the Claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked correctly within their allocated parking bay, giving no definition of the term 'correctly parked', nor indicating which bays are allocated to whom.
    8. The Defendant avers that the signage at the site in question was demonstrably OBSCURED by foliage, this is supported by photographic evidence taken at the time of the driver’s alleged breach of contract.

    9. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
    10. Further, there is insufficient notice of the parking charge itself. The sum of the parking charge appears in the same very small font size used to supply the address of the claimant. I believe this is intentional on the part of the operator to “bury” vital information in a wall of words to deliberately confuse car park users.
    11. The terms of parking are displayed inadequately, without prominence and clarity. The actual visibility of signage, the legibility of the wording and the size of lettering for the most onerous term, the parking charge itself leads the Defendant to aver that the signage is in breach of the Claimant’s own Trade Association’s code of conduct.
    12.The lack of clear and prominent signage differentiates this case from the Parking Eye vs Beavis case upon which the Claimant may rely, and that the signage fails the test of Lord Denning’s “Red Hand Rule”.
    13. The case Parking Eye vs Beavis [2015] addresses the need for signs to be clear, as such my case is fully distinguished in all respects, from Parking Eye V Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices. However, this Claimant did not show the charges incurred for breach in a sufficiently large font nor had the Claimant set out the terms and conditions in a readable format without either the need for a step ladder, the need to manoeuvre oneself into a bush to gain proximity or the need to remove overgrown foliage in order to read the terms and conditions of the claimant’s signage.
    14. Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that signage be ample, prominent and the charge clear. In the Beavis case, the £85 charge was in the largest font and the terms were legible and unambiguous. My case, in comparison does not demonstrate an example of large lettering and prominent signage that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park, in the Beavis case alone, a contract and agreement on the charge existed.
    15. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation, and to provide details of any Terms and Conditions placed upon the Claimant by the landowner in relation to such authorisations.
    16. The Parking Charge of £100 with a discount to £60 for early payment is excessive and unconscionable. In the Beavis case, it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum of parking, and that was the ‘parking charge’ for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the Claimant is attempting to claim, “debt + damages of £1xx.00.”
    17. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £XX, for which no calculation or explanation is given, and which appears to be a disingenuous attempt at double recovery.
    18. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process.
    19. CPR 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
    (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
    (b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

    20. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny.

    21. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

    22. In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

    23.The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.

    24. Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case.

    (LINK)

    25. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

    26. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

    27. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery

    28. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Order was identical in striking out both claims without a hearing, with the Judge stating:

    “It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule3.3(4) of the Civil Procedure Rules 1998...''
    29. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated:

    ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''
    30.In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.

    31. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

    32.The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.


    Statement of Truth:

    I believe that the facts stated in this Defence are true.


    Name
    Signature
    Date
Page 2
    • Saki0807
    • By Saki0807 14th Jan 20, 9:09 PM
    • 10 Posts
    • 2 Thanks
    Saki0807
    Thank you! Discontinuance notice from CEL


    Just to say thanks to the forum for all their invaluable advice- there is no way I would have been able to achieve this without the forum.. I have finally worn POPLA down and they have reviewed my case again (over 18 months later!). They have approved my appeal and have informed Civil Enforcement. I received a notice of discontinuance today.

    My original appeal to POPLA was strong so I knew that their initial refusal to accept my pdf file after the deadline (their technical error with original upload ) was not going to dissuade me from pursuing this to the bitter end and prepared my defence for court, again with the fantastic help of this forum.
    I am still considering pursuing the matter with POPlA in terms of a complaint for the huge time, stress and effort over the last 18 months. Any advice on who resides above POPLA in terms of a claim against them.? If they had considered my appeal in the first place, I would have avoided the harassment from CEL, solicitors etc.

    Anyone reading this, taking serious time reading the forum threads is the best advice I can give. Also, don’t give up on POPLA if anyone has had their pdf file go missing !
    • KeithP
    • By KeithP 14th Jan 20, 9:22 PM
    • 19,593 Posts
    • 24,988 Thanks
    KeithP
    I am still considering pursuing the matter with POPlA in terms of a complaint for the huge time, stress and effort over the last 18 months. Any advice on who resides above POPLA in terms of a claim against them.? If they had considered my appeal in the first place, I would have avoided the harassment from CEL, solicitors etc.
    Originally posted by Saki0807
    At the bottom of every page on their website we are told:
    PoPLA is administered by The Ombudsman Service Limited
    .
    • Umkomaas
    • By Umkomaas 14th Jan 20, 9:43 PM
    • 26,583 Posts
    • 43,669 Thanks
    Umkomaas
    At the bottom of every page on their website we are told:
    Originally posted by KeithP
    https://www.ombudsman-services.org/news/vickers-confirmed-as-head-of-ombudsman-services
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask.
    Give a man a fish, and you feed him for a day;
    show him how to catch fish, and you feed him for a lifetime.
    • Coupon-mad
    • By Coupon-mad 16th Jan 20, 1:51 AM
    • 80,692 Posts
    • 95,221 Thanks
    Coupon-mad
    First one I've known where a discontinuance was caused by POPLA finally getting their act together. Terrible stress caused to you - make a formal complaint to the Ombudsman Service about POPLA.

    But hey, the good thing is ANOTHER CEL ONE BITES THE DUST!
    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
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