Hi Everyone,

Dec 2016 the driver opted to park in the road outside a chargeable car park (no double yellows or anything).

There was a sign saying anyone who parks on the verge will be fined. There was plenty of space in the road, so the driver parked in the road.

Only for the owner to get a ticket through the post from District Enforcement (A PCN)

The owner ignored them for a while and now got the threatening "Notice of impending court action" by recorded delivery

Does the owner and driver have a leg to stand on if this goes to court? The driver maintains that they are parked in the road and not on the (grass) verge







EDIT: In January the owner sent them an email explaining that the driver was parked on the layby not the verge, with pictures supporting this. The owner got the below letter from them on 10th Feb



This post has been edited by HenryHippo: Fri, 17 Mar 2017 - 14:05

That isnt a great defence

Firstly, it is ONLY the legal arguments. You do not include ANY documents (photos, etc) at this point. JUST arguments.

Secodnly, it needs to be laid out bettter, with numbered paragraphs.

Have a look at other defences for LAYOUT purposes. See if what they have can be adapted. DONT just copy and paste!

Sorry for being dense, but is there a thread here with an example of a good defense?

Thanks in advance



I am NAME of ADDRESS, the defendant in this matter. The claim is denied in its entirety and I assert that I am not liable for the amount claimed, or any amount at all, for the following reasons:
1) The contract on the signage was not breached
i) This claim is for a breach of contract. However, it is denied that any contract was breached
ii) The signage states ““A charge of £70 will be payable by the driver of any vehicle parked either wholly or partially on the verge on either side of the road in this area”. However, the Vehicle was parked with all four wheels on either the tarmacked road or the asphalt layby. No part of the Vehicle was on the verge, which is delineated by the wooden posts, which are aligned to follow the verge.
2) The Burnham Beeches Byelaws were not breached
i) The Burnham Beeches Byelaws state “The doing or attempting to do any of the following acts in Burnham Beeches is prohibited and
shall be deemed to be an offence against the Corporation of London (Open Spaces) Act, 1878.
.
Drawing or driving or allowing to be drawn or driven any vehicle on, through or across
the turf, woods, copses, underwood or footpaths of Burnham Beeches or allowing any
vehicle to remain on such turf, woods, copses, underwood or footpaths, or on any road
other than a highway, in Burnham Beeches.”
ii) The Vehicle was not on turf, woods, copses, underwood or a footbath and therefore this Byelaw has not been breached.
3) The amount claimed is not proportionate
i) The Claimant is claiming for £131.37, of which £130 is for Parking Charges/ Damaged
ii) This amount is not justifiable as the claimant did not incur any loss from the event

Loss is mostly irrelevant since Beavis
State no contract was entered into, as the car wasnt parked on the verge, for example.

Did the Keeper idnetify the driver? If not then the byelaws mean this is not relevant land, and the Keeper cannot be liable.

This post has been edited by nosferatu1001: Thu, 4 May 2017 - 15:06

The Keeper did not identify the driver. So I should leave the byelaws out?

Anyone else have any comments on the defense? Or a link to a sample defence? I've found a few links online but they are very long winded and I struggle to apply my own points to such a long document.

Leave byelaws in. Because of byelaws it is not relevant land for the purpose of POFA therefore they can not hold the keeper liable at all, only the driver who they do not know and would have to identify.

Ok. Lose the loses piece and keep byelaws as it is


Anyone would anymore input please?

This is my argument. I also have photography to support it. I'd also liked to file a counterclaim for undue harrasment. Should I do this with the main case, or start a new money claim myself?




I am NAME of ADDRESS, the defendant in this matter. The claim is denied in its entirety and I assert that I am not liable for the amount claimed, or any amount at all, for the following reasons:
1) The contract on the signage was not breached
i) This claim is for a breach of contract. However, it is denied that any contract was breached
ii) The signage states ““A charge of £70 will be payable by the driver of any vehicle parked either wholly or partially on the verge on either side of the road in this area”. However, the Vehicle was parked with all four wheels on either the tarmacked road or the asphalt layby. No part of the Vehicle was on the verge, which is delineated by the wooden posts, which are aligned to follow the verge.
2) The Burnham Beeches Byelaws were not breached
i) The Burnham Beeches Byelaws state “The doing or attempting to do any of the following acts in Burnham Beeches is prohibited and
shall be deemed to be an offence against the Corporation of London (Open Spaces) Act, 1878.
.
Drawing or driving or allowing to be drawn or driven any vehicle on, through or across
the turf, woods, copses, underwood or footpaths of Burnham Beeches or allowing any
vehicle to remain on such turf, woods, copses, underwood or footpaths, or on any road
other than a highway, in Burnham Beeches.”
ii) The Vehicle was not on turf, woods, copses, underwood or a footbath and therefore this Byelaw has not been breached.

If you wish to counterclaim, you do this in your reply to defence, and paying the appropriate fee.

Wouldn't claim for harassment though. It's not easy to get satisfaction from that.
Far better to put a counter-claim for a breach of the DPA for using personal details without reasonable cause, in that they were obtained from the DVLA when no contravention to a parking contravention had occurred.
The DPA allows no mitigation by anyone accessing or using personal details, to take care to prevent unlawful use of data.

Look in the Flame Pit and you'll see a template for addition of a claim.

I've downloaded the template from the parkingcowboys website. It says that I need to send the Claimant a letter first objecting to their processing of my data.

Is this strictly necessary before a counter claim?



Thanks. Here's my proposed counterclaim. Again I'm concerned as to whether or not I need to send them a letter first.




CLAIM NUMBER: [xxx]

[xxx] (DEFENDANT) V [xxx] (CLAIMANT)

DEFENDANT'S COUNTERCLAIM AGAINST THE CLAIMANT

1. This is the Defendant's counterclaim against the Claimant for unlawful processing of data by the Claimant causing damage and/or distress to the Defendant.

2. Between 17/03/17 and 09/05/17 the Claimant processed the Defendant's personal data in such a way as to cause the Defendant significant distress. The distress caused was unwarranted.

3. Briefly, the Defendant was caused significant distress because

(a) The Defendant has been harassed with multiple letters and threats for no just reason

(b) The Defendant has had a Money Claim issued against him with no just reason.

4. Briefly, the distress was unwarranted because the Claimant had no good reason to process the data in the way that it did.

5. Breaching the provisions of the Data Protection Act 1998 gives rise to liability in tort - Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311.

And the Defendant claims:

(a) damages, in such sums as the Court may find; and

(b) interest, pursuant to s. 69 of the County Courts Act 1984, at such rates and for such periods on the sums found due to the Defendant as the Court may think fit.

The Defendant believes the facts stated in this counterclaim are true.

Signed by the Defendant:

Date:

You have to specify an amount. If you leave it unspecified well...have a look at the costs for doing so

No letter needed now. They've already claimed against you and a tort is underway.

Oops, meant to say £299 (so I can get the £25 fee). £0 interest

Here's my counterclaim what do you think?


CLAIM NUMBER: [xxx]

[xxx] (DEFENDANT) V [xxx] (CLAIMANT)

DEFENDANT'S COUNTERCLAIM AGAINST THE CLAIMANT

1. This is the Defendant's counterclaim against the Claimant for unlawful processing of data by the Claimant causing damage and/or distress to the Defendant.

2. Between 17/03/17 and 09/05/17 the Claimant processed the Defendant's personal data in such a way as to cause the Defendant significant distress. The distress caused was unwarranted.

3. Briefly, the Defendant was caused significant distress because

(a) The Defendant has been harassed with multiple letters and threats for no just reason

(b) The Defendant has had a Money Claim issued against him with no just reason.

4. Briefly, the distress was unwarranted because the Claimant had no good reason to process the data in the way that it did.

5. Breaching the provisions of the Data Protection Act 1998 gives rise to liability in tort - Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311.

And the Defendant claims:

(a) £300 damages, in such sums as the Court may find

The Defendant believes the facts stated in this counterclaim are true.

Signed by the Defendant:

Date:

Looks OK to me - should be added under your defence (same document I think).

I would also suggest adding to your defence that the claimant's claim should be struck out because any claim of breach of byelaws is a matter for Magistrates' court, and if the claimant is suggesting that they can run contract law alongside byelaws on 'non-relevant land' (as defined in the POFA) then it is a fact that a registered keeper (where the driver has not been evidenced) cannot be held liable in law, in any case. So the claim has no prospects of success in the small claims track.

Ask that the matter is referred to a Judge (at CCBC) to use their discretion and save the court's time, by ordering a strike out of the claim due to CPR Part 3.4:
(a) that the statement of case disclosed no reasonable grounds for bringing the claim;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; and
© that there has been a failure to comply with a rule, practice direction or court order.

Hi, thanks so much for the above. I'd be very grateful if you could tell me if I have phrased this correctly. Thanks

I am NAME of ADDRESS, the defendant in this matter. The claim is denied in its entirety and I assert that I am not liable for the amount claimed, or any amount at all, for the following reasons:
1) The contract on the signage was not breached
i) This claim is for a breach of contract. However, it is denied that any contract was breached
ii) The signage states ““A charge of £70 will be payable by the driver of any vehicle parked either wholly or partially on the verge on either side of the road in this area”. However, the Vehicle was parked with all four wheels on either the tarmacked road or the asphalt layby. No part of the Vehicle was on the verge, which is delineated by the wooden posts, which are aligned to follow the verge.
2) The Burnham Beeches Byelaws were not breached
i) The Burnham Beeches Byelaws state “The doing or attempting to do any of the following acts in Burnham Beeches is prohibited and
shall be deemed to be an offence against the Corporation of London (Open Spaces) Act, 1878.
.
Drawing or driving or allowing to be drawn or driven any vehicle on, through or across
the turf, woods, copses, underwood or footpaths of Burnham Beeches or allowing any
vehicle to remain on such turf, woods, copses, underwood or footpaths, or on any road
other than a highway, in Burnham Beeches.”
ii) The Vehicle was not on turf, woods, copses, underwood or a footbath and therefore this Byelaw has not been breached.
3) The Claimant’s claim is not valid
i) This claim relates to a breach of byelaws
ii) Any claim for a breach of byelaws should be referred to a Magistrates Court
iii) If the Claimant is suggesting that they can run contract law alongside byelaws on 'non-relevant land' (as defined in the POFA) then it is a fact that a registered keeper (where the driver has not been evidenced) cannot be held liable in law, in any case.
iv) Therefore, this claim has no prospect of success in the small claims track

The defendant asks that the matter is referred to a Judge at the County Court Business Centre in order to save the court’s time, by order a strike out of the claim due to CPR Part3.4:
i) That the statement of case disclosed no reasonable grounds for bringing the claim;
ii) That the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; and
iii) That there has been a failure to comply with a rule, practice direction or court order.

This post has been edited by HenryHippo: Fri, 19 May 2017 - 11:36

anyone?

Looks OK - where you say 'POFA' for the first time, give the Act and Schedule its full name:

The Protection of Freedoms Act 2012 (Schedule 4)


At at the end, cover yourself with these extra points, and a statement of truth, signature & date:


4) In the alternative, should this matter be allocated to the small claims track, I put this claimant to strict proof of their claim including:

- that their Notice to Keeper letter complies with the requirements of the POFA and/or
- that this part of the location in question is not already covered by Byelaws relating to vehicular use and/or
- that this location is 'relevant land'

otherwise, it is a fact that as registered keeper I cannot be held liable, and nor can any lawful presumption be made regarding the identity of a driver on private land. I will rely on the opinion stated by barrister and parking law expert, PATAS and POPLA Lead Adjudicator Henry Greenslade, as set out in an article written for the purpose of informing parking operators and motorists, about 'Understanding Keeper Liability' after the enactment of the POFA 2012. This appeared in the POPLA Annual Report 2015 which this claimant will be familiar with, since they were previously in the BPA which uses POPLA as its ADR.

5) It is contended that the signage at this location is not capable of forming a contract since it makes no clear offer and is likely to be prohibitive, such that no consideration flows from the terms as drafted. Even if this is not held to be the case, a contract to park cannot be offered by a non-landowning third party where terms and penalties already exist under set Byelaws.

6) It is contended that this Claimant is not the landowner and has no standing to offer parking contracts at this location nor to sue in the small claims court. If the car driver was deemed to be trespassing then, as was confirmed by Supreme Court Judges in ParkingEye Ltd v Beavis [2015] UKSC 67, a parking operator would not be able to recover damages under such a tort, this being a matter for the landowner only, to recover any nominal loss if one arose.

7) This case can be fully distinguished from Beavis, which turned on prominent signs making a clear offer, and an agreed contract with an identified driver in a retail park (not on Byelaws 'non-relevant' land), and a complex legitimate interest and commercial justification which - very unusually - saved that particular parking charge from falling foul of the penalty rule, which it was held would otherwise apply in less complex cases and render such charges as unrecoverable.

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all. I believe that the facts stated in this defence are true.


signature:


date:

Thanks so much I appreciate you writing that. I have added this in, and then I have the counterclaim below. Does the counterclaim look ok to you?

If I win this counterclaim then I will be donating the entire profit to a charity TBD.

I am NAME of ADDRESS, the defendant in this matter. The claim is denied in its entirety and I assert that I am not liable for the amount claimed, or any amount at all, for the following reasons:
1) The contract on the signage was not breached
i) This claim is for a breach of contract. However, it is denied that any contract was breached
ii) The signage states “A charge of £70 will be payable by the driver of any vehicle parked either wholly or partially on the verge on either side of the road in this area”. However, the Vehicle was parked with all four wheels on either the tarmacked road or the asphalt layby. No part of the Vehicle was on the verge, which is delineated by the wooden posts, which are aligned to follow the verge.
2) The Burnham Beeches Byelaws were not breached
i) The Burnham Beeches Byelaws state “The doing or attempting to do any of the following acts in Burnham Beeches is prohibited and
shall be deemed to be an offence against the Corporation of London (Open Spaces) Act, 1878.
.
Drawing or driving or allowing to be drawn or driven any vehicle on, through or across
the turf, woods, copses, underwood or footpaths of Burnham Beeches or allowing any
vehicle to remain on such turf, woods, copses, underwood or footpaths, or on any road
other than a highway, in Burnham Beeches.”
ii) The Vehicle was not on turf, woods, copses, underwood or a footbath and therefore this Byelaw has not been breached.
3) The Claimant’s claim is not valid
i) This claim relates to a breach of byelaws
ii) Any claim for a breach of byelaws should be referred to a Magistrates Court
iii) If the Claimant is suggesting that they can run contract law alongside byelaws on 'non-relevant land' (as defined in The Protection of Freedoms Act 2012 (Schedule 4)) then it is a fact that a registered keeper (where the driver has not been evidenced) cannot be held liable in law, in any case.
iv) Therefore, this claim has no prospect of success in the small claims track

The defendant asks that the matter is referred to a Judge at the County Court Business Centre in order to save the court’s time, by order a strike out of the claim due to CPR Part3.4:
i) That the statement of case disclosed no reasonable grounds for bringing the claim;
ii) That the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; and
iii) That there has been a failure to comply with a rule, practice direction or court order.
4) In the alternative, should this matter be allocated to the small claims track, I put this claimant to strict proof of their claim including:

i) that their Notice to Keeper letter complies with the requirements of the POFA and/or
ii) that this part of the location in question is not already covered by Byelaws relating to vehicular use and/or
iii) that this location is 'relevant land'

otherwise, it is a fact that as registered keeper I cannot be held liable, and nor can any lawful presumption be made regarding the identity of a driver on private land. I will rely on the opinion stated by barrister and parking law expert, PATAS and POPLA Lead Adjudicator Henry Greenslade, as set out in an article written for the purpose of informing parking operators and motorists, about 'Understanding Keeper Liability' after the enactment of the POFA 2012. This appeared in the POPLA Annual Report 2015 which this claimant will be familiar with, since they were previously in the BPA which uses POPLA as its ADR.

5) It is contended that the signage at this location is not capable of forming a contract since it makes no clear offer and is likely to be prohibitive, such that no consideration flows from the terms as drafted. Even if this is not held to be the case, a contract to park cannot be offered by a non-landowning third party where terms and penalties already exist under set Byelaws.

6) It is contended that this Claimant is not the landowner and has no standing to offer parking contracts at this location nor to sue in the small claims court. If the car driver was deemed to be trespassing then, as was confirmed by Supreme Court Judges in ParkingEye Ltd v Beavis [2015] UKSC 67, a parking operator would not be able to recover damages under such a tort, this being a matter for the landowner only, to recover any nominal loss if one arose.

7) This case can be fully distinguished from Beavis, which turned on prominent signs making a clear offer, and an agreed contract with an identified driver in a retail park (not on Byelaws 'non-relevant' land), and a complex legitimate interest and commercial justification which - very unusually - saved that particular parking charge from falling foul of the penalty rule, which it was held would otherwise apply in less complex cases and render such charges as unrecoverable.

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all. I believe that the facts stated in this defense are true.


signature:


date:

Additionally, the Defendant wishes to file a counterclaim against the Claimant as shown below.

CLAIM NUMBER: [xxx]

[xxx] (DEFENDANT) V [xxx] (CLAIMANT)

DEFENDANT'S COUNTERCLAIM AGAINST THE CLAIMANT

1. This is the Defendant's counterclaim against the Claimant for unlawful processing of data by the Claimant causing damage and/or distress to the Defendant.

2. Between 17/03/17 and 09/05/17 the Claimant processed the Defendant's personal data in such a way as to cause the Defendant significant distress. The distress caused was unwarranted.
3. Breaching the provisions of the Data Protection Act 1998 gives rise to liability in tort - Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311.

And the Defendant claims:

(a) £300 damages, in such sums as the Court may find

The Defendant believes the facts stated in this counterclaim are true.

Signed by the Defendant:

Date:

Going to submit this tomorrow guys so any last feedback on my counterclaim in particular is welcome

Also does anyone know at what point I can submit my photographic evidence?

All the counter claim money will go to a good cause, so don't be shy with helping me out please