Received County Court Claim for PCN for overstaying on free carpark

[Dubkhan]

Done... I managed to figure it out

[AllmanRach]

Des-8

Thank you for sending the statements above. I have practically copied and pasted it all but to be honest, I am not sure I know whether some of it applies so hoping you can help. I have added in bold the ones I have queries on and have put my questions below this first draft.

1.The Defendant received the claim No. L4KF033Y from UK Parking Control Ltd on 02/04/2024.
2. Each and every allegation in the Claimants statement of case is denied, unless specifically admitted in this Defence.
3. The Defendant does not know (and neither does the Claimant), whether the Claimant owns or is only authorised to carry out parking enforcement services at Pinners Brow Retail Park.
4.The Defendant admits to being the registered keeper of the vehicle, but denies naming the driver as alleged in the PoC.
5. If the Claimant knows the driver's identity, the Claimant should not be proceeding against the keeper (PoFA2012 Sch4 para 5 (I)).
6.The Defendant avers the signs are not capable of forming a contract as they are forbidding in nature.
7.The claimant states in para 3 of his PoC that the vehicle was parked "for longer than permitted".
The PoC is unclear about what terms and conditions may have been breached. It does not explain what permit or authority was required, nor how the breach occurred, nor what maximum period was allowed, nor what period the vehicle was actually parked.
8. The Defendant denies that the Claimant is entitled to the recovery of the parking charges and unspecified collection charges in respect of the PCN against the Defendant, as either the driver or the Keeper for the following reasons:
9. The Defendant asserts the “additional charges” term on the parking sign is contrary to the requirement of good faith and causes a significant imbalance under the contract to the detriment of the Defendant.
10. Section 68 of the Consumer Rights Act 2015. (CRA 2015) requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language.
11.The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that it only refers to unspecified additional charges.
12. It fails to explain what charges the claimant seeks to recover, and is also contrary to CRA2015 Schedule2 (10 & 14).
13. Consequently, the term is unfair and is not binding on the Defendant pursuant to sec 62 of CRA 2015.
14. In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. the S C found the parking charge (£85) was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator, if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
15. In this claim, unspecified costs additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b)).
16. The Defendant denies that the claimant is entitled to the relief as claimed, or at all.

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.

3. The signs state that the land is private property and parking control is managed by UK Parking Control Ltd. Does this mean that I can't put this in?
7. The PoC doesn't state the length of time, but the PCNs do state that the car was on the carpark for over an hour beyond the permitted time. The maximum period is stated on the signs. Is this point exclusively about the PoC details and not other corresponding information that has been sent?
11. It does state what the charges would be if there was failure to comply. Can I not add this in, or should I elaborate more on the intelligible aspect?
12. I am not clear on what this means and whether this is applicable in my defence, if you could advise?

Additional points and questions
1. Is there any merit in including that one of the pictures sent to myself as proof of signage, is time stamped as a date after the event occurred or would this not be useful as something to suggest may or may not have been there during the time the car was there.
2. You mentioned making more reference to the smaller wording on the signage. is that covered in point 11 or should I elaborate further?
3. Once I have got this in a good state, where do I send this to?

[des8]

I'll get back to you in the next couple of days .... bit tied up at the mo'

[des8]

Omit para 3.... sometimes it is worth requesting a copy of their management agreement to see if they are exceeding their authority

Para 4 needs amending as they do not state you have identified the driver.
You need to be more circumspect. I would suggest more along the lines of:

The claimant alleges the defendant was the driver of the vehicle at the time of the alleged incident, but offers no proof or supporting evidence for this statement. Accordingly, the Claimant’s allegation is entirely baseless and nothing more than a fishing expedition which the Defendant considers to be an abuse of process.
However if the Claimant knows the driver's identity, the Claimant should not be proceeding against the keeper (PoFA2012 Sch4 para 5 (I)).

after para 6 additional para re signage to cover the inadequacy of the signage e.g. was there a sign at the entrance (I couldn't see one on google Earth!), are the fonts sufficiently large to be easily read? are there sufficient signs or could one park and miss the signs? Check the position on the ground before adding.to defence


your comments regarding para 7 are correct... you are defending the claim as presented to the court

para 11 the signs refer to "additional charges" without specifying them

Para12 have you read the references to CRA2015?

re additional points:
1. can you show the signs have changed?
2 answered above
3 file in court and serve on claimant's solicitor

[AllmanRach]

Des-8 - thank you so much for the support. Just pulled together the revised letter and replied to your questions.

1.The Defendant received the claim No. L4KF033Y from UK Parking Control Ltd on 04/04/2024.
2. Each and every allegation in the Claimants statement of case is denied, unless specifically admitted in this Defence.
3. The Claimant alleges the defendant was the driver of the vehicle at the time of the alleged incident, but offers no proof or supporting evidence for this statement. Accordingly, the Claimant’ allegation is entirely baseless and nothing more than a fishing expedition which the Defendant considers to be an abuse of process. However if the Claimant knows the driver's identity, the Claimant should not be proceeding against the keeper (PoFA2012 Sch4 para 5 (I)).
4. The Defendant avers the signs are not capable of forming a contract as they are forbidding in nature.
5. The claimant states in para 3 of his PoC that the vehicle was parked "for longer than permitted". The PoC is unclear about what terms and conditions may have been breached. It does not explain what permit or authority was required, nor how the breach occurred, nor what maximum period was allowed, nor what period the vehicle was actually parked.
6. The Defendant denies that the Claimant is entitled to the recovery of the parking charges and unspecified collection charges in respect of the PCN against the Defendant, as either the driver or the Keeper for the following reasons:
7. The Defendant asserts the “additional charges” term on the parking sign is contrary to the requirement of good faith and causes a significant imbalance under the contract to the detriment of the Defendant.
8. Section 68 of the Consumer Rights Act 2015. (CRA 2015) requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language.
9. The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that it only refers to unspecified additional charges.
10. Consequently, the term is unfair and is not binding on the Defendant pursuant to sec 62 of CRA 2015.
11. In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. The S C found the parking charge (£85) was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator, if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
12. In this claim, unspecified costs additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b)).
13. The Defendant denies that the claimant is entitled to the relief as claimed, or at all.

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.

Questions/suggestions:

1. I have removed this point from the defence. The PoC does explain the charges and if this is what I am arguing against, this defence doesn't apply? "It fails to explain what charges the claimant seeks to recover, and is also contrary to CRA2015 Schedule2 (10 & 14)". Am I right in thinking that the point behind these charges is more in relation to the inflation of these costs that are unfair and related more to the significant imbalance?

2. In relation to your questions around additional information regarding the signage, I am going to drive over to the parking place and take some photos so I can write in the defence the set up of the carpark. This will hopefully beef out this section for me to bolster the case. I hope to do this tomorrow afternoon so will come back with some final points to bring this together.

3. I can't evidence the signs have changed. I only have reference to the image they have sent being taken after the offence took place, which may not have much weighting, especially if I use evidence to show the layout of what the signs are now.

4. I have removed para 3 as recommended and amended para 4 as recommended.

5. Is there anything you feel that I have missed or need to consider to bolster the case?

6. In terms of filing in court, is that something I need to post to both the solicitor and the court? I filled out the acknowledgement of service online on the 4th April, just conscious of the time I have left.

Thank you,
Rachael

[des8]

Des-8 - thank you so much for the support. Just pulled together the revised letter and replied to your questions.

1.The Defendant received the claim No. L4KF033Y from UK Parking Control Ltd on 04/04/2024.
2. Each and every allegation in the Claimants statement of case is denied, unless specifically admitted in this Defence.
3. The Claimant alleges the defendant may have been the driver of the vehicle at the time of the alleged incident, but offers no proof or supporting evidence for this statement. Accordingly, the Claimant’ allegation is (deleted) nothing more than a fishing expedition which the Defendant considers to be an abuse of process. However if the Claimant knows the driver's identity, the Claimant should not be proceeding against the keeper (PoFA2012 Sch4 para 5 (I)).

:4The Defendant admits to being the registered keeper of the vehicle,

.
5. The claimant states in para 3 of his PoC that the vehicle was parked "for longer than permitted". The PoC is unclear about what terms and conditions may have been breached. It does not explain what permit or authority was required, nor how the breach occurred, nor what maximum period was allowed, nor what period the vehicle was actually parked.
6. The Defendant denies that the Claimant is entitled to the recovery of the parking charges and unspecified collection charges in respect of the PCN against the Defendant, as either the driver or the Keeper for the following reasons:

7. The Defendant avers the signs are not capable of forming a contract as they are forbidding in nature, and do not make an offer. Hence there can be no breach of contract as alleged


7. The Defendant asserts the “additional charges” term on the parking sign is contrary to the requirement of good faith and causes a significant imbalance under the contract to the detriment of the Defendant.
8. Section 68 of the Consumer Rights Act 2015. (CRA 2015) requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language.
9. The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that it only refers to unspecified additional charges.
10. Consequently, the term is unfair and is not binding on the Defendant pursuant to sec 62 of CRA 2015.
11. In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. The S C found the parking charge (£85) was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator, if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
12. In this claim, unspecified costs additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b)).
13. The Defendant denies that the claimant is entitled to the relief as claimed, or at all.

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.

Questions/suggestions:

1. I have removed this point from the defence. The PoC does explain the charges and if this is what I am arguing against, this defence doesn't apply? "It fails to explain what charges the claimant seeks to recover, and is also contrary to CRA2015 Schedule2 (10 & 14)". Am I right in thinking that the point behind these charges is more in relation to the inflation of these costs that are unfair and related more to the significant imbalance?
Should be left in as the "it" refers back to the signage.(have you read the CRA reference?.)
You are arguing the contract as set out on the signs contains unfair term as defined in CRA2015 sch 2 (10 & 14) and as they are unfair they are not binding on the Defendant as per sec 62 of CRA 2015

2. In relation to your questions around additional information regarding the signage, I am going to drive over to the parking place and take some photos so I can write in the defence the set up of the carpark. This will hopefully beef out this section for me to bolster the case. I hope to do this tomorrow afternoon so will come back with some final points to bring this together.

3. I can't evidence the signs have changed. I only have reference to the image they have sent being taken after the offence took place, which may not have much weighting, especially if I use evidence to show the layout of what the signs are now.

4. I have removed para 3 as recommended and amended para 4 as recommended.

5. Is there anything you feel that I have missed or need to consider to bolster the case?

6. In terms of filing in court, is that something I need to post to both the solicitor and the court? I filled out the acknowledgement of service online on the 4th April, just conscious of the time I have left.

Thank you,
Rachael

I have suggested /made some amendments and tried to explain why references to CRA2015 sch 2 (10 & 14) should be reinserted.
However it is your defence, which you might have to argue in court so you need to understand it and be happy with it.
Just make sure you are truthful!

[AllmanRach]

Des-8

Hi Des, thank you for the amendments you have suggested.

I have been over to the carpark today and took photos. I have attached them to this post. I am struggling to put into legal language that

a) the signs upon entry to the carpark are not clear. You drive in from the main road and the only sign you can see is one to the right which says 3 hours no return but behind that is a carpark so not suggestive that this is applicable to the carpark as you turn towards the left.

b) the sign on the right is three small notices that are impossible to stop and read on a bend that is dangerous to stop at to view and are not big enough to acknlowledge this is something you need to read before entering.

c) there is no immediate sign upon entry to the carpark, just dotted about around the edges of the carpark so if you park in the middle, there's none there that provides this information.

in reply to your questions above, I had read CRA 2015 and understood it loosely. but not enough to perhaps argue it fully if I did get taken to court, so I would definitely need to swot up a bit more to understand what the argument I have, is.

I sent the acknowledgment on the 4th April so I think I need to get this sent today in the first class post so I don't go over my dates?

[des8]

After para 7 about the "forbidding signs" insert a para along the lines;

8. Following receipt of the claim the Defendant visited the car park where the alleged incident occurred, and noted that
there is no clear signage at the entrance warning that the car park was a controlled area. This is contrary to the mandated
instructions in the BPA Approved Operator Code of Practice (appendix B)) The Defendant notes the Claimant is a
member of the British Parking Association and understands their Operators Code of Conduct is deemed
to be part of any contract.

9. The Defendant avers that not having been warned by an entrance sign the driver, did
not look for, nor see any signs and as such there was no intention to contract with the claimant

[AllmanRach]

After para 7 about the "forbidding signs" insert a para along the lines;

8. Following receipt of the claim the Defendant visited the car park where the alleged incident occurred, and noted that
there is no clear signage at the entrance warning that the car park was a controlled area. This is contrary to the mandated
instructions in the BPA Approved Operator Code of Practice (appendix B)) The Defendant notes the Claimant is a
member of the British Parking Association and understands their Operators Code of Conduct is deemed
to be part of any contract.

9. The Defendant avers that not having been warned by an entrance sign the driver, did
not look for, nor see any signs and as such there was no intention to contract with the claimant

Thank you so much for responding so quickly.

Would you say the attached template is sufficient to use? And do I just send recorded copies of this letter to both the court and DCB legal?

[des8]

seems ok to me
No need to send recorded, just first class with free certificate of posting from post office
File with court and serve on claimant's solicitor

[AllmanRach]

seems ok to me
No need to send recorded, just first class with free certificate of posting from post office
File with court and serve on claimant's solicitor

Thank you.

So just so I am clear, I have printed the same letter twice and signed. I have put in separate envelopes and sending one to DCB Legal and one to the court. In the court document am I also to include the N9B defence and counterclaim form too?

[des8]

Correct ,but include N9B completed.
At para 3 state "defence enclosed" and put claim number in top right hand corner of every page

[AllmanRach]

Thank you.

So just so I am clear, I have printed the same letter twice and signed. I have put in separate envelopes and sending one to DCB Legal and one to the court. In the court document am I also to include the N9B defence and counterclaim form too?

Hi,

I have received a letter back from the court yesterday to say that they have received my documents and the claimant will respond accordingly.

I have received a letter today from DCB Legal to say after reading my defence they are going to proceed with the claim and have offered that they may be willing to settle the case outside of court and if I wish to, to call them within 7 days. The have included a questionnaire that the court will send to both parties.

I am unsure of what to do next. Little nervous about arguing my case because it's most definitely not my strong point at all.

[AllmanRach]

Correct ,but include N9B completed.
At para 3 state "defence enclosed" and put claim number in top right hand corner of every page

Hi,

I have received a letter back from the court yesterday to say that they have received my documents and the claimant will respond accordingly.

I have received a letter today from DCB Legal to say after reading my defence they are going to proceed with the claim and have offered that they may be willing to settle the case outside of court and if I wish to, to call them within 7 days. The have included a questionnaire that the court will send to both parties.

I am unsure of what to do next. Little nervous about arguing my case because it's most definitely not my strong point at all.

[des8]

As this is DCB Legal I suppose they have requested in their directions questionnaire that the case is heard in their local court and they suggest a paper hearing
You need to request hearing in your local court, and an in person hearing as there are matters of law to be settled.

You will be at a disadvantage if you opt for a paper hearing.
With the hearing being heard in person at your local court it will cost the claimant more to attend than he can obtain even if he wins. Often they either discontinue at the last minute. or just don't turn up for the hearing
They are aware that most people are stressed by the thought of a court hearing and hope they will pay up to avoid it.
However it is not rally scary at all, and is almost informal in some cases.

You could try settling out of court, but I doubt they will come down much and will use the opportunity to pressurise you more.
The court will offer you the chance to use the court mediation service.
This is free of charge, and you don't actually speak to the other side. It is held over the phone & the mediator shuffles between you.
I have never known the parking companies to accept a low offer.