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Hi guys.
To cut a long story short we stayed at a hotel and there was a parking tablet at the hotel in which you had to enter your details so you didn’t get a parking ticket. Which we did upon arrival.
A few days after returning home we received a parking fine from civil enforcement Ltd which they are now pursuing via the county court.
I have looked on here, found and defence and modified it to make it my own.
If anyone will legal knowledge could look over said letter and advise or otherwise before I submit my counter that would be greatly appreciated.
Pete.
my defence:
—————————————————————
Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defense.
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. The vehicle in question had multiple insured parties. Pictures taken of the car entering and exiting does not constitute as proof. A witness statement can collaborate this.
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.
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. At the alleged offense date, the signage on and around the site which did not meet the British Parking Association (BPA) Code of Practice. It was also not lit, making the inadequate signs impossible to read on the winters night in question. The “time in” of 1.42am further proves this. 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
- Signage lacked any lighting making them illegible during dark hours, including 1.42am of the date in question.
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 no “manual patrols”, as stated on the particulars of claim, were sighted at the time of the alleged offence (1.42am).
6. The Claimant has failed to provide any evidence that authorisation to park was NOT granted or indeed entered via the in-house parking tablet. The defendant specifically entered the correct details into the parking tablet, allowing the defendant to park there as paying visitors of the hotel. No evidence on the contrary has been provided. If it were a system fault and the defendant complied with the relevant parking requirements, then the claimant cannot pursue costs or damages as the defendant had every legal right to park there, as paying guests of the hotel.
7. 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 Civil Enforcement Ltd.
a) Civil Enforcement 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 legal standing to bring this case.
8. 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.
9. 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 £199.23 as the amount claimed (for which liability is denied). The Particulars of Claim does NOT include any cost amount presented as contractual costs pursuant to PCN terms and conditions. We can then well assume that the figures calculated as those plucked from their imagination and as such hold no legal justification. in addition there is a further £25 Court fees and £50 Legal representative's costs.
10. 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.
11. 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."
L
To cut a long story short we stayed at a hotel and there was a parking tablet at the hotel in which you had to enter your details so you didn’t get a parking ticket. Which we did upon arrival.
A few days after returning home we received a parking fine from civil enforcement Ltd which they are now pursuing via the county court.
I have looked on here, found and defence and modified it to make it my own.
If anyone will legal knowledge could look over said letter and advise or otherwise before I submit my counter that would be greatly appreciated.
Pete.
my defence:
—————————————————————
Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defense.
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. The vehicle in question had multiple insured parties. Pictures taken of the car entering and exiting does not constitute as proof. A witness statement can collaborate this.
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.
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. At the alleged offense date, the signage on and around the site which did not meet the British Parking Association (BPA) Code of Practice. It was also not lit, making the inadequate signs impossible to read on the winters night in question. The “time in” of 1.42am further proves this. 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
- Signage lacked any lighting making them illegible during dark hours, including 1.42am of the date in question.
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 no “manual patrols”, as stated on the particulars of claim, were sighted at the time of the alleged offence (1.42am).
6. The Claimant has failed to provide any evidence that authorisation to park was NOT granted or indeed entered via the in-house parking tablet. The defendant specifically entered the correct details into the parking tablet, allowing the defendant to park there as paying visitors of the hotel. No evidence on the contrary has been provided. If it were a system fault and the defendant complied with the relevant parking requirements, then the claimant cannot pursue costs or damages as the defendant had every legal right to park there, as paying guests of the hotel.
7. 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 Civil Enforcement Ltd.
a) Civil Enforcement 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 legal standing to bring this case.
8. 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.
9. 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 £199.23 as the amount claimed (for which liability is denied). The Particulars of Claim does NOT include any cost amount presented as contractual costs pursuant to PCN terms and conditions. We can then well assume that the figures calculated as those plucked from their imagination and as such hold no legal justification. in addition there is a further £25 Court fees and £50 Legal representative's costs.
10. 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.
11. 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."
L
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