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Bank park management ltd - private parking not paid
SE-786
post Tue, 9 Oct 2018 - 11:18
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I have received a claim form from the county court business centre in Northampton that deal with online small claims.
Issue date: 04 Oct 2018

The claimant is Bank park management ltd using QDR solicitors ltd.

They are claiming for a total amount of: £235. Breakdown: Amount claimed: £160, Court Fee: £25, Legal representative's cost: £50 Total amount: £235.

The particulars of the claim are (in summary):
Parked at site in breach of contract, contravention being Anpr failure to pay for parking.
By entering into contract Defendant agreed that they would be liable for £100 parking charges plus additional contractual charged incurred by the claimant for collection of the debt pursuant to the terms and conditions.

I have only just filled in online the acknowledgement of service.

I am trying to compile a defence but would appreciate any help.

The key points I have currently put together are:
1. According to protection of freedoms act 2012 schedule 4 they should be charging an amount of genuine pre estimate of loss. They charge 40p per hour.
2. Sign is not clearly shown - Car park has no signage stating terms and conditions at entrance, there is 1 sign of this nature on the far end but can easily be obstructed by a parked vehicle.
3. Penalty clause as the charge is an attempt to prevent motorists from breaching the contract - a term or condition in a contract which demands an excessive financial charge be paid if one party breaches the contract.

Will these be enough to win?

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post Tue, 9 Oct 2018 - 11:18
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ostell
post Fri, 2 Nov 2018 - 11:33
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Don't put your defence on the MCOL form !! Any formatting will be lost and it will end up looking a mess. Write it out in Word, sign it, save as a PDF and then send as an attachment to an email to MCOL.

Suggest you post your defence on here for critique before you send.
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SE-786
post Fri, 2 Nov 2018 - 14:47
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I am [NAME] of [ADDRESS], defendant in this matter.
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, for the following reasons, any one of which is fatal to the Claimant's case.

i. Failure to deliver the notice to keeper within 14 days as mentioned in the Protections of Freedom Act 2012 (PoFA)
ii. The proper claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Bank Park Management Ltd.
iii. PoFA Chapter 4 (5) does not permit the claimant to recover more than the sum stated on the parking charge on the day before a notice to keeper was issues. The claimant cannot recover additional charges. The claimant claims a sum of £100 as a ‘parking charge’ for which liability is denied.
iv. The Claimant has no standing to bring a case
v. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty
vi. Solicitor Costs

The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. As the claimant has not provided this information, signage details have been inferred from stock photographs and the details may not be correct. Minor variants in text may occur. All references to signage therefore, are subject to change once the full particulars of claim have been provided.


i Failure to follow Protection of Freedom Act 2012 (PoFA)

1. It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Protection of Freedom Act 2012, specifically chapter 9 (4), (5) and (6).
2. Failure to comply with the chapter 9 (4), (5) and (6) of the PoFA the keeper cannot be held liable for the alleged debt of the driver.
3. If the solicitors are relying on PoFA they know they do not have a case as they do not know who the driver is and are trying to hold me liable as the keeper which cannot be done as per the 2 points noted above.

ii The proper claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Bank Park Management Ltd.
4. Bank Park Management is not the lawful occupier of the land. Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

5. The Claimant states, in their Particulars of Claim, that the signage is ‘clearly displayed’ but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present. Although the Claimant has not provided a signage map in many of their car parks signs are positioned in such a way as to create ‘entrapment zones’ where signage is not clearly visible. The Claimant is put strictly to proof that this is not the case on this site.

6. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

iii PoFA Chapter 4 (5) does not permit the claimant to recover more than the sum stated on the parking charge on the day before a notice to keeper was issues.

7. The Claimant cannot recover additional charges. The Claimant claims a sum of £100 as a ‘parking charge’ (for which liability is denied)

8. The Claim includes £50.00 that the claimant has untruthfully presented as contractual charges. The claimant's solicitor has, however, described the charge in correspondence as "legal fees" and is well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims court.

9. The defendant also has the reasonable belief that the charges have not been invoiced and/or paid. The defendant also has a good faith belief that due to the sparse particulars that the £50 claimed for filing the claim has not been incurred. This appears to be an attempt at double recovery as a way to inflate the value of the claim. In any event the protection of freedoms act is clear that a vehicle Keeper, even if they are liable for the charge which is denied, would only be liable for the amount of the penalty charge notice, and no further costs.

iv The Claimant has no standing to bring a case

10. The claim form states that the land is ‘managed by Bank Park Management Ltd’. They are therefore acting as agents of the landowner.

11. The Claimant’s has not provided copies of the alleged contract in the letter before claim or particulars of claim. However it is believe the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; ‘Bank Park Management Ltd is authorised by the landowner to operate this private car park for an on its behalf’ and ‘Parking is at the absolute discretion of the Landowner’.

12. If Bank Park Management denies acting as an agent then they are put to strict proof by disclosing the appropriate parts of their contact with the landowner.

13. Fairlie v Fenton establishes the situation regarding agency.
a. If the agent is acting on behalf of an undisclosed principal, they can sue and be sued
b. If the agent is acting on behalf of a named principal, they cannot sue
c. If the agent is acting on behalf of a principal whose name is not disclosed, then they can only sue if they assume the risk; in other words, if they can be sued if they fail to uphold their part of the bargain.

14. This case is clearly ©. The signage states Bank Park Management Ltd are acting on behalf of the landowner, but does not state who the landowner is. The small print in the signage has a clause similar to ‘Bank Park Management do not assume the risk if problems occur; in these cases it is the landowner who would be liable. We are not responsible for the car park surface, other motor vehicles, damage or loss to or from motor vehicles or general site safely.’

15. Bank Park Management therefore has no standing to bring this case. Only the landowner has the right to do this.

16. In ParkingEye v Beavis, clauses 3.11 and 8 were redacted from the contract given to the judges. Therefore any judgment would not have been able to take these clauses into account.

v The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty

17. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable.

18. As previously explained, the parking charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowner’s behalf. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of any alleged overstay. There is no initial loss to the Claimant, and they have no standing to bring any case.

19. In any case, all costs are due to the cost of enforcement, which was established in ParkingEye v Beavis to be an average of around £18 per ticket issued. These can therefore be mitigated by taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.

20. The Court of Appeal ruled that is a charge was not a genuine pre-estimate of loss it could nevertheless be saved as a penalty if (i) there was social justification, and (ii) the charge was no more than needed to deter, which was established by comparison with council charges at that site.

21. In this case equivalent council fines are £25 rising to £50 after 14 days. In comparison to this the sum demanded is clearly far more than that needed to deter, far more than genuine losses, and is therefore disproportionate.

22. Additionally the sum is roughly equivalent to a week’s state pension or a day and a half take home pay at average earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.

Solicitor Costs

23. The claim includes a sum of £50, described as ‘Solicitor’s costs’. Since these are fully automated and no real input or say has actually gone into the particulars, no intervention is required by a solicitor, and the Claimant is put to strict proof to show a full breakdown of how this cost has been incurred. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved. The £50 is not valid because it is not incurred by the claimant, generating over £1.5 million a year in profit.

24. Additionally, as this is already included as part of the costs of the claimant, factored into the £100 parking charge, this is essentially double charging.

25. To put this into context, if the work was done by an outside solicitor who charged Bank Park Management Ltd £10 (which is believed to be the going rate for this type of work) then Bank Park Management Ltd would only be able to claim £10, and not £50.

26. The defendant therefore puts the claimant strictly to proof, by way of timesheets or otherwise, that work was done by the litigant’s expert staff to the value of £50.

27. The £50 solicitor cost was disputed in the test case of ParkingEye v Beavis and Wardley. HHJ Moloney refused to award the £50. His award was; “JUDGMENT FOR CLAIMANT FOR £85 PLUS ISSUE COSTS”. These were presumably the £25 filing fee and £25 hearing fee.

28. The £50 was also struck out by DJ Sparrow on 19 August 2015 in ParkingEye v Mrs S, claim number B9FC508F.

The defendant invites the court to strike out the claim as the defendant does not have grounds for a case against me.
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SE-786
post Fri, 9 Nov 2018 - 11:15
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a request was sent to bank park management to provide the proof of contract between them and the landowner to which they replied it would breach the landowners personal data.

the letter was sent to solicitor advising to not continue with the case. This was received by them on Tuesday and still waiting for a response from this.
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The Rookie
post Fri, 9 Nov 2018 - 11:29
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QUOTE (SE-786 @ Fri, 9 Nov 2018 - 11:15) *
a request was sent to bank park management to provide the proof of contract between them and the landowner to which they replied it would breach the landowners personal data.

Which is of course rubbish, though I'm sure the Judge will see through it!


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

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nosferatu1001
post Fri, 9 Nov 2018 - 12:40
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Yep, this is complete rubbish

Point out they are compelled ot provide it as you have required they prve they have standing. Given they have to disclose it anyway, delaying is merely an attempt to ambushy the defendent.
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Jlc
post Fri, 9 Nov 2018 - 12:42
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Perhaps they could redact the personal information?


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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SchoolRunMum
post Fri, 9 Nov 2018 - 23:05
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QUOTE
1. It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Protection of Freedom Act 2012,


The Act is the Protection of Freedoms Act (plural Freedoms). And it is not 'unlawful' to issue a non-POFA PCN so don't say it is. They can. But it means only a known driver can be held liable, as a result of the PPC's choice not to use POFA Schedule 4 wording.
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