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I have now got as far as a court date (12/12/18) v Vehicle Parking Services Ltd, who issued a parking Charge Notice to me for the accidental obscuring of my valid parking ticket in the car park where I live. I have prepared my defence as best I can using one of the templates availiable but would appreciate advice on how it might be improved:-
I, Andy Hudson of 41 Porterbrook View , defendant in this matter, deny liability for the entirety of the claim.
1/ This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied 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. Not all of this applies in this material case.
2/ I am a tenant of Guinness Properties where the car park is situated. There can be no legitimate interest in issuing charges to residents, since the contract makes it clear that it was aimed at external ‘abusers’. The Beavis test is therefore not satisfied.
B4GF26K6 PCM (UK) v Mr B (£914.67 claimed)
B4GF27K3 PCM (UK) v Mr W (£1559.82)
B4GF26K2 PCM (UK) v Ms L (£1067.15)
3/ The contract is invalid:-
(a) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
(b) Absent the elements of a contract, there can be no breach of contract, and
(c) The charge is not based upon a genuine pre-estimate of loss.
(i)That the assumed contract is no contract in law since it is one sided and unfair under the Consumer Contracts Regulations 5-(1) which state that a contract which has not been individually negotiated shall be regarded as unfair if contrary to the requirements of good faith, it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer
(ii) The term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore been able to influence the substance of the term.
It is unfair to impose disproportionate sanctions for a breach of contract (if indeed one can be proved) A requirement to pay more in compensation than a reasonable pre estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will in any case, be normally void to the extent that it amounts to a penalty under English Common Law.
(e) the tenancy agreement makes no reference to parking ticket requirements or the involvement of outside management. Pace Recovery -v- Mr N.(Redacted) (2016) C6GF14F
4/ No standing - this distinguishes this case from the Beavis case:
It is believed Vehicle Control Services do not hold a legitimate contract at this car park. The contact is out of date as it contains elements which are no longer legal (towing and clamping on private land). As an agent, the Claimant therefore has no legal right to bring such a claim in their name which should be in the name of the landowner.
5/ The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.
6/ The charge is an unenforceable penalty, neither based upon a genuine pre-estimate of loss nor any commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.
7/ If the court believes there was a contract (which is denied,) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (the tariff) where any sum pursued for breach must still relate to a genuine pre-estimate of loss.
If a company obtains information from DVLC where a charge is not valid it is a breach of the data protection act. Vidal-Hall -v- Google Inc (2014) EWHC 13(QB)
Missuse of personal data is a tort, damages may be non pecuniary. Halliday -v- Creation Consumer Finance Ltd. (2013) AllER(d)199 The reasonable sum of £750. plus distress caused though a years worth of intimidation of a vulnerable tenant. I wish to claim such damages if appropriate
The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to strike out the claim of its own volition as having no merit and no reasonable prospects of success.
In the alternative, the Defendant is willing for the matter to be decided by POPLA (Parking on Private Land Appeals) which will decide the dispute and limits any further costs to this claimant to £27, with no legal costs. This is the bespoke ADR for BPA members, is available at any time (not just the first 28 days) and has been used to settle private parking court claims on multiple occasions even after proceedings have commenced. POPLA has not been undertaken in this case at this time.
The Defendant invites the Court to use its discretion to make such an order, if not striking out this claim.
Regards
Thank you.
I, Andy Hudson of 41 Porterbrook View , defendant in this matter, deny liability for the entirety of the claim.
1/ This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an un-denied 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. Not all of this applies in this material case.
2/ I am a tenant of Guinness Properties where the car park is situated. There can be no legitimate interest in issuing charges to residents, since the contract makes it clear that it was aimed at external ‘abusers’. The Beavis test is therefore not satisfied.
B4GF26K6 PCM (UK) v Mr B (£914.67 claimed)
B4GF27K3 PCM (UK) v Mr W (£1559.82)
B4GF26K2 PCM (UK) v Ms L (£1067.15)
3/ The contract is invalid:-
(a) No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
(b) Absent the elements of a contract, there can be no breach of contract, and
(c) The charge is not based upon a genuine pre-estimate of loss.
(i)That the assumed contract is no contract in law since it is one sided and unfair under the Consumer Contracts Regulations 5-(1) which state that a contract which has not been individually negotiated shall be regarded as unfair if contrary to the requirements of good faith, it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the consumer
(ii) The term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore been able to influence the substance of the term.
It is unfair to impose disproportionate sanctions for a breach of contract (if indeed one can be proved) A requirement to pay more in compensation than a reasonable pre estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will in any case, be normally void to the extent that it amounts to a penalty under English Common Law.
- The contact was made with a client (Northern Counties Housing Association) that no longer exists since it was taken over by Guinness Property in 2008.
(e) the tenancy agreement makes no reference to parking ticket requirements or the involvement of outside management. Pace Recovery -v- Mr N.(Redacted) (2016) C6GF14F
4/ No standing - this distinguishes this case from the Beavis case:
It is believed Vehicle Control Services do not hold a legitimate contract at this car park. The contact is out of date as it contains elements which are no longer legal (towing and clamping on private land). As an agent, the Claimant therefore has no legal right to bring such a claim in their name which should be in the name of the landowner.
5/ The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.
6/ The charge is an unenforceable penalty, neither based upon a genuine pre-estimate of loss nor any commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.
7/ If the court believes there was a contract (which is denied,) this is just the sort of 'simple financial contract' identified at the Supreme Court as one with an easily quantifiable loss (the tariff) where any sum pursued for breach must still relate to a genuine pre-estimate of loss.
If a company obtains information from DVLC where a charge is not valid it is a breach of the data protection act. Vidal-Hall -v- Google Inc (2014) EWHC 13(QB)
Missuse of personal data is a tort, damages may be non pecuniary. Halliday -v- Creation Consumer Finance Ltd. (2013) AllER(d)199 The reasonable sum of £750. plus distress caused though a years worth of intimidation of a vulnerable tenant. I wish to claim such damages if appropriate
The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to strike out the claim of its own volition as having no merit and no reasonable prospects of success.
In the alternative, the Defendant is willing for the matter to be decided by POPLA (Parking on Private Land Appeals) which will decide the dispute and limits any further costs to this claimant to £27, with no legal costs. This is the bespoke ADR for BPA members, is available at any time (not just the first 28 days) and has been used to settle private parking court claims on multiple occasions even after proceedings have commenced. POPLA has not been undertaken in this case at this time.
The Defendant invites the Court to use its discretion to make such an order, if not striking out this claim.
Regards
Thank you.
