Court claim for over 4 years old ticket,AOS deadline by 9th Nov,But misspelt surname

[ostell]

So she should be the one handling the court !

[lb2k]

Thank you very much indeed Ostell, much appreciated.

Will insist solicitor again with required details + NTD and NTK?

Many thanks in advance.

[pt2537]

Thank you very much indeed PT2537.

Yes, my Mrs is not the driver but as a registered keeper.

Ok

So, second question, why are we not applying to strike out the Claim, if the Defendant is not the driver, and by the Claimants own solicitors case they are saying that the claim is for breach of contract, no contract exists between keeper and landowner etc, thus the claim is wholly without merit and has no basis.

Further the claim if they wish to pursue the keeper must be pleaded as keeper liability per POFA 2012. They have no case based on what i can see here.

[lb2k]

Have sent Solicitor an email insisting for further details by citing that the claim has not yet been allocated to any small claims track, hopefully will get a response on 25th November (With 7 days Deadline).

As per the email to Solicitor -"If you are unwilling to comply with my request for specific disclosure please inform me and I will consider entering an application to the court to obtain such." - How to go about it please in case the Solicitor doesn't respond on time?

OR

If the Solicitor requests more time, should I still file my defence by 28th November (33days deadline from issue date:26th Oct 2020); 28th Nov being a Saturday, Can I file my defence on Monday 30th November?

Would you please clarify?

[lb2k]

Have sent Solicitor an email insisting for further details by citing that the claim has not yet been allocated to any small claims track, hopefully will get a response on 25th November (With 7 days Deadline).

As per the email to Solicitor -"If you are unwilling to comply with my request for specific disclosure please inform me and I will consider entering an application to the court to obtain such." - How to go about it please in case the Solicitor doesn't respond on time?

OR

If the Solicitor requests more time, should I still file my defence by 28th November (33days deadline from issue date:26th Oct 2020); 28th Nov being a Saturday, Can I file my defence on Monday 30th November?

Would you please clarify?

ostell - Thank you so much for wonderful support. Any thoughts please on the above query?

[pt2537]

Sorry but i am failing to see the need for discovery

Let me be clear why i say this.

The Defendant, was NOT THE DRIVER yes? The Defendant was the keeper.

As a matter of law, the keeper is only liable if the requirements of Schedule 4 of the Protection of Freedoms Act 2012 is complied with. The Keeper cannot be liable in contract for breach of contract, unless the keeper was also the driver. And we know the keeper wasnt the driver.

So now we have those facts established, lets look at the Claim.

The Claim states clearly

.......contractual charge due from the Defendant.............................

it goes on to say

The PCN was issued as the Defendant failed to comply.....................


These two sentences in my view are clear, they allege breach of contract by the Defendant

If they wished to pursue Keeper liability then that should have been pleaded. See CPR 16 for further details on what should be in a claim.

I dont think i would be asking for more information, doing so would be saying to them, Hey Mr Claimant, you screwed up but wolud you like a free chance to rectify the cockup?

Its the Claimants claim to plead correctly, their c ase is clear, i would defend it on the above basis

[lb2k]

Have received the Solicitors response as below.

"Dear Sirs

I write in reference to your email dated xxxxx November 2020.

The contravention occurred on 24 March 2016 at xxxxx– Private Parking Spaces at: xxxxx Street, xxxxx. Our client issued a Parking Charge Notice (PCN) due to the vehicle bearing the registration mark xxxxx xxxxx not being authorised to park in the car park as per the terms and conditions which are clearly stated in the signage around the car park.

In response to your request for us to provide evidence in regards to the contravention, I can confirm we have referred this request to our client to obtain the evidence. However, we will aim to provide this within 14 days, and we will update you within that time if we are unable to. We are unable to place the matter on hold and therefore, you will need to formally respond to the claim form within the timeframe specified. You have had ample time to request this documentation prior to a claim being issued, and you will already be in receipt of evidence of the contravention as it was sent to you following the contravention.

I confirm the contract between our client and land owner is a privileged document that you have no right to inspect. As per my previous email, there is no obligation for us to provide this to you as this is commercially sensitive and shall only be produced if the matter progresses to a formal hearing at court.

We are satisfied that we have addressed all your queries and the relevant documentation will be provided to you upon receipt.

I trust this is in order."

[lb2k]

ostell pt2537 - Thank you very much indeed for your wonderful support so far. Planning to send the following defence before 30th November deadline. You thoughts and help on this please would be much appreciated.

Many thanks in advance.

"
DEFENCE


Introduction

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


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

The facts as known to the Defendant:
2. It is admitted that the Defendant was the registered keeper of the vehicle in question (xxxxx xxxxx), but liability is denied.

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

3. The Defendant was not the driver of the vehicle on the date in question as she only qualified to drive the automatic transmission car and vehicle in question (xxxxx xxxxx) is a manual transmission car.

The claim is for breach of contract, no contract exists between keeper and landowner etc, thus the claim is wholly without merit and has no basis. The Keeper cannot be liable in contract for breach of contract.

The claim was served to misspelt/wrong surname. The correct surname should have been xxxxx xxxxx - The second letter should have been ‘x’ as in bold. However, on the claim form it’s misspelt/wrong.

The Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.
.
4. The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon. Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3. That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2. NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

5. It is denied that the exaggerated sum sought is recoverable. The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135. Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper. At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable. ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

6. Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain. It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.

7. The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties. It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing. He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice. He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed. It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

8. Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case). It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land. There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

9. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable. However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.

10. Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text. The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

11. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.

12. The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

13. The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

14. Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''. In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio. To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

15. Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed: 'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

15. In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant. It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints. There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

In the matter of costs, the Defendant seeks:

17. (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance. The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

18. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

Statement of Truth

I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Defendant’s signature:

Date:"

[ostell]

8 do you mean Beavis is EXTINGUISHED ?

[lb2k]

8 do you mean Beavis is EXTINGUISHED ?

Thank you Ostell.

In the defence it's stated as distinguished

[lb2k]

ostell pt2537 Would you please help with the defence above please to submit before 4pm Monday 30th November deadline.

BTW I found a bank transaction on 24th March 2016 to show that my Mrs elsewhere on cashpoint. Hope this would prove she is not the driver+her automatic driving license?

Many thanks.

[B'stard]

I take it they have added extra charges to the original amount? Are they taking your good lady to court as the driver, or the keeper? (Remember never name the driver, unless you don't like them lol). If the answer is yes the the Protections of Freedoms Act 2012 Schedule 4 applies.

I would go online and look through the Protections of Freedoms Act 2012 Schedule 4, the law covering the Private Parking Industry, which they have to follow to hold the keeper liable for a Parking Charge. They quote it all the time, but usually just ignore it. Section 4, paragraph 5 clearly states 'The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper' they always ignore that and add on extra charges, usually £60. That charge is unlawful and is an Abuse of Process and many claims are being thrown out of court for this.

In the Parking Eye Vs Beavis case, which they love to mention, the judges at the Supreme Court ruled that the Parking Charge was to include recovery costs, but those low lifes always ignore the ruling of the Supreme Court and pile on extra costs unlawfully (with the exception of ParkingEye itself who do honour it).

Also look up the Consumer Rights Act 2015.

There was never a contract to pay this extra charge and, in any case there is no consideration being offered - the defendant (keeper) gets nothing of value for paying the additional £60 - therefore it fails the standard test for contracts of offer, consideration and acceptance. Further the additional sum is a penalty and fails S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and the provision of the additional charge breached Schedule 2 (Grey List) paragraphs 6, 10 and 14.

The sum was neither quantified on the contract (the signage) nor was it brought clearly to the attention of the driver, although the defendant as the keeper never agreed to, or had any knowledge of any 'contract'. As such, it amounts to a hidden penalty.

The Consumer Credit Act 2015 became law on the 1st of October 2015, making the added 'Recovery Charge' unlawful.

No doubt they'll give BS about how they are entitled to under rule 24.1b of the British Parking Association Code of Conduct which states that they can claim up to £70 in recovery fees, but the BPA CoC are merely guidelines and have no legal standing, PoFA 2012 s4 is law.

Out of curiosity, which court would it be? I know a number of courts are systematically rejecting claims with added costs for an Abuse of Process.

Oh and did they put the period of parking on the Notice to Keeper? That is required under PoFA 2012 S4, section 9, paragraph 2a. So it could be argued that the Notice to Keeper itself is non compliant.

[ostell]

More needs to be made about PT2537's very good comments. Well spotted.

A quick outline that needs a little detail filling in.

The defendant is the Keeper.

The defendant was not the driver, did not have a licence to drive that class of vehicle and was elsewhere at the time. There was therefore there was no contract created between the claimant and the defendant. With no contract there can be no breach.

The claimant has failed to comply with the strict requirements of POFA and therefore there can be no keeper liability in this matter

The particulars of claim state that the keeper is liable for the alleged debt. The defendant, as the keeper, cannot be held liable and therefore the claimant is claiming against the wrong party and the claim should be dismissed.

I sure it should be Beavis is extinguished.

[lb2k]

Thank you very much indeed for the wonderful support on this forum so far.

My top 5 items from my final defence will be as below and will keep 6-18 as is from the post #23. One thing I'm not sure of which one talks about "Abuse of Process" though, should I mention this explicitly, if so need help please as running short of time.

Many thanks in advance.

Hope this is good to go this afternoon before 4pm deadline today.


"Introduction

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


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

The facts as known to the Defendant:
2. It is admitted that the Defendant was the registered keeper of the vehicle in question (xxxxx xxxxx), but liability is denied.

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

3. The defendant was not the driver, did not have a licence to drive that class of vehicle and was elsewhere at the time. There was therefore there was no contract created between the claimant and the defendant. With no contract there can be no breach.

The claimant has failed to comply with the strict requirements of POFA and therefore there can be no keeper liability in this matter.

The particulars of claim state that the keeper is liable for the alleged debt. The defendant, as the keeper, cannot be held liable and therefore the claimant is claiming against the wrong party and the claim should be dismissed.

The claim was served to misspelt/wrong surname. The correct surname should have been xxxxx xxxxx- The second letter should have been ‘x’ as in bold. However, on the claim form it’s misspelt/wrong.

The Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

4. The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon. Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3. That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2. NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

5. It is denied that the exaggerated sum sought is recoverable. The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135. Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper. At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable. ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event."

[lb2k]

I have received DQ from court with 25th Jan deadline and meanwhile received a BWL filled in DQ as attached suggesting for mediation service. Not sure any worth that or stick to my local court hearing. Please advise.

I have already requested a SAR from UKPPO an more than 30days and no response yet.

Should I contact the BWL to get more details of original PCN and NTK if at all they have?

Please suggest next steps.

Many thanks in advance.