BP Hatton Cross - N1SDT - not sure I have any defence?

[des8]

OK will draft in next couple of days

[des8]

Half way through your defence... will complete Sunday
Do you have pictures of signs inside the carpark, and plan of their siting that you could post up?

[espere_alys]

Thank you! ok here are all the pics I have:
https://www.dropbox.com/scl/fo/m4qki...=j11u5tfg&dl=0

[des8]

Here you go
Number each page and enter claim number in top right hand corner of each page


In the County Court Centre Claim No.

Between
Euro Car Parks Limited (Claimant)
and
Ms ………. (Defendant)

DEFENCE

Introduction

The defendant notes that the claimant failed to follow the CPR Pre-action protocol for debt claims

1..The Defendant received the claim xxx from DCB Legal Ltd on dd/mm/yy

2.Each and every allegation in the Claimant’s statement of case is denied unless specifically admitted in this Defence.

3. The Defendant avers the Claimant's statement of case firstly fails to give adequate information to enable the Defendant to properly assess the Defendant's position with regards the claim and secondly has failed to properly plead its case in accordance with CPR 16.4(1)(a)
Specifically the Particulars of Claim:
. i)state that Parking Charge(s) were issued to vehicle xxxx at xxxx but fails to state how they were issued, when they were issued and how many were issued
ii) states that PCN(s) were issued on 17/02/22 but fails to state how many.
iii) states the claim is for £170 being the total of the PCN(s) and damages but fails to state how this total is computed.

iv)imply the driver entered into a contract with the Claimant but does not explain how or on what basis the contract was entered into

v)imply the Defendant is liable as the registered keeper of the vehicle yet the Claimant has failed to particularise the basis of that allegation.

The defendant notes the claimant has failed to respond to a CPR31.14 request timeously, and has supplied no documents on which it intends to rely

4..It is well established that the Claimant must provide adequate pleadings and include all essential ingredients of the cause of action so as to enable the Defendant to understand the case against them. The Particulars of Claim, as drafted, are inadequate which makes it difficult for the Defendant to respond as she does not know or understand the basis of the Claimant’s case.
Further, the Defendant is surprised by the poor drafting of the particulars given that the Claimant is represented professionally by a firm of solicitors and so the lack of compliance with the CPR 16.4(1)(a) to formulate proper particulars cannot be excused. Accordingly, the court is invited to consider its general case management powers pursuant to CPR 3.1 to

1. i) make an order that unless the Claimant (i) files and re-serves an amended Particulars of Claim compliant with CPR 16.4(1)(a) and
2. ii) provide the necessary documentation in order for the Defendant to fully plead her case within 14 days of said order, then the claim shall be struck out and judgment entered in favour of the Defendant;
   iii) If the Claimant should comply with such an order , the Defendant will then be in a position to amend her defence, and would ask that the Claimant bears the costs of the amendment.
   Or
3. iv) if the court considers it appropriate, to strike out the claim in whole or in part, on the basis that the claim discloses no reasonable grounds for a cause of action; and
   v) exercise any other case management powers the court sees fit

Without prejudice to the foregoing paragraphs, the Defendant intends to respond to the allegations raised in the Particulars of Claim as best she is able.

Liability as driver

5.The Claimant has so far failed to provide any supporting evidence the Defendant was the driver. Accordingly, the Claimant’s allegation is nothing more than a fishing expedition which the Defendant considers to be an abuse of process.

6. The Claimant asserts the reason the PCN(s) were issued was a “breach of the terms on the signs (the contract).Reason: your vehicle was parked longer than the maximum period allowed"

7.Following receipt of the claim, the keeper has visited the park to ascertain the possible position

8. An examination of the car park and signage thereat showed It is clearly possible that the driver did not see the single sign at the entry.

9.In the park itself , signs are positioned round the periphery and it is possible the driver parked and did not see the signs.

10. Further , the Defendant understands the driver was not a customer of the service station, but solely used the location for parking whilst taking a ‘phone call

11. The signs (although perhaps unseen) clearly state the facilities are for “customers only” so implicitly forbid parking by others.

12. One cannot contract to perform what is forbidden, so the Defendant avers that there was no contract and hence no breach.

13. The offence, if any, was one of trespass and it is for the land occupier to seek redress

14..Therefore it is denied that the driver agreed to the T& Cs as claimed and no contract was formed

Liability as Registered Keeper

15 It is denied the Claimant is entitled to recover the Parking Charge

16. The claimant has failed top specify how liability for unpaid parking charges may be transferred from the driver to the registered keeper

17 The costs sought by the Claimant are based upon a contractual right under the terms of the alleged parking contract. It is well established under the doctrine of privity that a person who is not party to the contract cannot sue or be sued. Any contractual relationship in respect of the parking and the alleged contravention was solely between the Claimant and the driver of the vehicle, not the registered keeper

18.In the alternative the Defendant contends the Claimant has failed to comply with the mandatory conditions of POFA2012to transfer liability for unpaid charges to be transferred from the driver to the registered keeper in that contrary to condition 5(1)(b) of POFA2012 the Claimant implies the Defendant was the driver of the vehicle.

19.In light of that allegation, it is implied that the Claimant has actual knowledge of the driver’s identity and so the Defendant cannot be held liable for the Parking Charge as the registered keeper, and the Claimant must pursue the driver of the vehicle only. The Defendant will seek to rely on paragraph 221 of the POFA 2012 Explanatory Notes, which states that:

1. … The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity (emphasis added)

Recovery of Claimant’s “total of PCN(s)and damages”

20.. The Defendant denies that the Claimant is entitled to the recovery of unspecified damages in respect of the PCN(s) against the Defendant for the following reasons:

21.The signage in the car park refers to a charge of £100 plus unspecified additional charges, but makes no reference to “damages”

22. 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.

23 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.

24.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/ charges.

25.It fails to explain what charges the claimant seeks to recover, and is also contrary to CRA2015 Schedule2 (10 & 14)

26.Consequently, the term is unfair and is not binding on the Defendant pursuant to section 62 of the CRA2015

27.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).

28. 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) )

29. Whilst not binding on this court the Defendant respectfully refers to the following case: G4QZ465V (Excel Parking Services Ltd vs Wilkinson - 1st July 2020) where District Judge Jackson considered a similar claim to be an abuse of process under the The Consumer Rights Act 2015 (Sch 2 and section 61/ 61(1)/ 67). He found that striking out the claim was the only appropriate manner in which the disapproval of the court could be shown

30. POFA2012 Schedule 4 paragraph 4(5)provides that the maximum amount which may be recovered from the registered keeper is the total amount of the unpaid parking charges specified in the notice to the registered keeper.

Any liability that would be owed by the keeper to the Claimant is limited to an amount that does not exceed the unpaid parking charge(s). The Claimant’s pursuit of “damages” amounts to an abuse of process.

31. 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.

SIGNED …………………………………………..

Dated

[espere_alys]

oh this is brilliant! I am going to read it through again in a minute.

I've just got back into my old house today , and found the notice to keeper!
There are no pictures of the car park, only the number plate, and I honestly swear that phone call was made in the other petrol station. I do not believe I have ever been to the other location.

I'll post a full size in the dropbox linked above also

[espere_alys]

also this was in my junk folder!

Am I ok to send them ID and proof of being registered keeper / V5?

[espere_alys]

and - I issue my defence here in this box?

[des8]

also this was in my junk folder!

Am I ok to send them ID and proof of being registered keeper / V5?

yes, ok but don't identify the driver

[des8]

and - I issue my defence here in this box?

yes, but you will probably have to send the defence in an email ( ccbcaq@hmcts.gsi.gov.uk),
Be sure to insert claim number in the subject line

...and send copy to claimant's solicitors

[espere_alys]

perfect, thank you. I will do all three things.

Is there any sense in trying to argue they have the wrong car park?

[des8]

Having now seen the NTK, at this stage i wouldn't bother to change the draft defence (but it is for you to amend if you wish).
The solicitors should have sent one in response to your CPR31.14 request, and there is no need to tell them you have found the original.

I don't think your argument about the location will be of any help as you have no proof.
If it is the wrong car park how come they have your car number plate pictures?
I suppose if they control the car park further down the road they could have become confused, but how do you prove it?

[espere_alys]

It is annoying though. I think they are confused. They could have taken images of my vehicle anywhere based on those images.
But yes, I guess I can't prove it unless they can provide a wider shot of my car in-situ. Although it's crazy to think they can 'prove' I entered Hatton Cross & engaged in a contract with them based on that letter. When actually I didn't.

My defence doesn't fit into the 122 lines given, but there is nowhere to upload an attachment.
Do you know what is correct to do in these circumstances? Do I call / email them and ask to send it in as a separate document?
Nervous of missing the deadline.

thanks again, this is incredibly helpful

[des8]

Email defence via link in post 24

Just wait & see what they supply before worrying about location

[espere_alys]

the defence is too long for that box. It won't allow me to submit more than 122 lines of text.

[des8]

So send an email with the defence or as an attachment to the email