** Discontinued ** Help with defence against parking ticket

[Madmax3]

Hi Ostell or anyone else looking, my partner needs to send her defence in by this Sunday, BW legal have stated to her they aren't relying on POFA. My partner has a witness statement from someone that was with her at the time of the alleged offence, I assume that should be made reference too in the above defence, does a copy of the WS also need to be submitted at this stage ? Thanks Max

[charitynjw]

Hi Max

I'll give ostell a nudge.

If it were me I'd put in a bit about asking for evidence in order to assess the legal position, but nowt much forthcoming from the Claimant.

Could you also post up (or type) the Particulars of Claim on the court claim form?

[Madmax3]

Hi CharityNJW, thanks for your reply, details are as follows.

The claimant's claim is for the sum of £100 being monies due from the defendant to the claimant in respect of a PCN issued XXXXXX
The PCN relates to under registration XXXXXXX, the terms of the PCN allowed the defendant 28 days from the issue date, to pay the PCN but the defendant failed to do so.
Despite demand having been made the defendant has failed to settle their outstanding liability.
The claim also includes statutory interest pursuant to section 69 of the county courts act 1984 at a rate of 8% per annum a daily rate of 0.02 from XXXXXX to XXXXXX.
The claimant also claims £60 contractual costs pursuant to PCN T&C's.

[charitynjw]

My defense:

Statement of Defense


7/03/2019



.Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

It is admitted that Defendant is the registered keeper of the vehicle in question

The Claimant has no cause of action against the Defendant on the following grounds:-

The Defendant was not the driver of the vehicle on the date in question.

2
2. 1. The Protection of Freedom Act 2012 Schedule 4 has not been complied with.

a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.

b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time and with mandatory wording.

c) The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).


3. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis 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. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.


4. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice. The claimant is a member of the BPA, whose requirements they did not follow. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.

The signage is inadequate in terms of the following:

• Lack of clarity and prominence of terms and conditions
• Illegible text due to font size, density, colour and complexity


5. Photographs of the keeper’s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.


6. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Britannia Parking Ltd.

a) Britannia Parking Ltd is not the lawful occupier of the land

b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have 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 locus standi to bring this case.


7. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-

a) The Claimant has no commercial justification
b) The Claimant did not follow the BPA Code of Practice
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

8. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £177.34 as the ‘amount claimed’’ (for which liability is denied) plus the Particulars of Claim include £60 that the claimant has presented as contractual costs pursuant to PCN terms and conditions, in addition there is a further £25 Court fees and £50 Legal representative's costs. In contradiction to this the claimant's solicitor has, however, described the Principal Debt and initial legal costs as £160 and with a further £92.34 being made up of estimated interest, court fees and solicitor's costs. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative's costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

9. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

10. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

Therefore I ask the court to respectfully strike out this claim with immediate effect.


I believe that the facts stated in this Statement of defence, (date I intend to send) are true."


Signed

Apart from a couple of suggestions (in bold), I reckon that's a blinding defence!
Good to go!
Obviously, renumber as necessary.

[Madmax3]

Thanks Charitynjw, there are a couple of amendments to make then I will post the final defence up again to be checked, is there anything else we need to mention in the defence that we may want to use later in court, mention of witness statement as to the where abouts of the RK at the time of the alleged offence ? She also wants to claim for costs as this has taken many hours of both hers and my time to sort out, when should that be mentioned?

Thanks again for for the help Max

[charitynjw]

Thanks Charitynjw, there are a couple of amendments to make then I will post the final defence up again to be checked, is there anything else we need to mention in the defence that we may want to use later in court, mention of witness statement as to the where abouts of the RK at the time of the alleged offence ? She also wants to claim for costs as this has taken many hours of both hers and my time to sort out, when should that be mentioned?

Thanks again for for the help Max

By all means mention that witnesse(s) can prove that the Defendant was not even present at the parking site at the time of the incident & sworn statement(s) will be made available at the hearing. (&/or they will attend in person.)

As to costs, usually in Small Claims each party bears their own costs (the 'no costs rule'.)
The court does have the ability to award costs in certain circumstances (ie unreasonable behaviour of a party) but it is the exception rather than the rule.

[Madmax3]

Final defence statement to be submitted

My Defense:

Statement of Defense


7/03/2019

Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

It is admitted that the Defendant was the registered keeper of the vehicle in question.
.
The Claimant has no cause of action against the Defendant on the following grounds:-

1. The Defendant was not the driver of the vehicle on the date in question. Notification and information in this regard was provided to the Claimant when first contact was received by the Defendant in 2016.
A witness statement will collaborate that the Defendant was not even present at the parking site at the time of the incident.

2. The Protection of Freedom Act 2012 Schedule 4 has not been complied with.

a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.

b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time and with mandatory wording.
The stringent requirements have not been complied with, the defendant has provided the claimant the specific details that demonstrate failure to comply with the POFA 2012 Sch 4 section 9

c) The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).


3. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis 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. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.


4. The Claimant has supplied copies of signage on and around the site which does not meet the British Parking Association (BPA) Code of Practice. The claimant is a member of the BPA, whose requirements they did not follow. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.



The signage is inadequate in terms of the following:

- Lack of clarity and prominence of terms and conditions
- Illegible text due to font size, density and complexity


5. Photographs of the keeper’s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display. Further from the Claimants provided photographs it is not certain that the vehicle in both pictures are the same.


6. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Britannia Parking Ltd.

a) Britannia Parking Ltd is not the lawful occupier of the land

b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have 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 locus standi to bring this case.


7. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-

a) The Claimant has no commercial justification
b) The Claimant did not follow the BPA Code of Practice
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

8. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £177.34 as the ‘amount claimed’’ (for which liability is denied) plus the Particulars of Claim include £60 that the claimant has presented as contractual costs pursuant to PCN terms and conditions, in addition there is a further £25 Court fees and £50 Legal representative's costs. In contradiction to this the claimant's solicitor has, however, described the Principal Debt and initial legal costs as £160 and with a further £92.34 being made up of estimated interest, court fees and solicitor's costs. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative's costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.


9. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.


10. The Pre Action Protocol process has not been completed by the Claimant, the defendant is still awaiting the information requested in Section 4.
11. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

Therefore I ask the court to respectfully strike out this claim with immediate effect.
I believe that the facts stated in this Statement of defence, (date I intend to send) are true."


Signed

[charitynjw]

Para 2c) Henry Greenslade 'presumption'.
If challenged, can you prove your assertion?
If not, you can now!
See attached POPLA report p13

Was this a windscreen notice, or a first notice via post?
We can add a tiny bit more (to dot t's & cross i's), then you're good to go, I reckon.

[Madmax3]

First notice through the post, although as I mentioned in my PM to you the original PCN was not received.

[Madmax3]

Thank you for the copy of the report that was on my todo list, along with getting a copy of the BPA Code of Practice !

[charitynjw]

2. The Protection of Freedom Act 2012 Schedule 4 section 9 has not been complied with.


(If you are sure there was no windscreen notice.)

[Madmax3]

Definitely no windscreen notice

[Madmax3]

Will add that, although they have stated to my partner on the phone they aren’t relying on PoFA 2012

[charitynjw]

Final defence statement to be submitted

My Defense:

Statement of Defense


7/03/2019

Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

It is admitted that the Defendant was the registered keeper of the vehicle in question.
.
The Claimant has no cause of action against the Defendant on the following grounds:-

1. The Defendant was not the driver of the vehicle on the date in question.
Notification and information in this regard was provided to the Claimant when first contact was received by the Defendant in 2016, to their agent Debt Recovery Plus on [date] & to their legal representative B W Legal on [date]
A witness statement will confirm that the Defendant was not even present at the parking site at the time of the incident.
If the Claimant's claim is via common law breach of contract, the doctrine of privity of contract is applicable.

Adapt the defence as above if you can substantiate informing each of them.
I'll explain/expand in due course, but for now, as time is pressing, just bang the defence into court.

[Madmax3]

Letter received in post today from BWLegal notice of discontinuance ! Big thank you to everyone who offered advice especially Charitynjw who answered all my annoying messages with good grace, humour and above all knowledge of the system that I was lacking.

”Don’t let the Bastards grind you down”