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Directions Questionnaire from CSB Law received via email, They’ve asked for Claim to be heard on Papers only
tld2004
post Thu, 2 Nov 2017 - 22:10
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Hi All

My partner (the registered keeper) received a Court Claim Form today for a PCN issued on 30 June 2017 by CSB Solicitors/London Parking Solutions for parking outside our flat whilst bringing shopping in. I have included the Particulars of Claim paragraph below.

No PCN sticker was stuck on the windscreen at the time of the offence, but she received a letter in the post from London Parking Solutions in August chasing payment (indicating that London Parking Solutions obtained registered keeper details from the DVLA within 30 days as she is registered keeper). She ignored the letter as she knew it wasn't a real PCN but presented me with a copy of the Claim Form from Court today.

She did not make any contact with London Parking Solutions, no calls, emails, letters etc - she simply ignored the letter.

Can someone please provide some advice please? Whats the best course of action for defending this?

My partner is registered disabled/Blue Badge holder if it helps?

Many thanks,



Particulars of Claim:

"The claimants claim against the defendant is for non payment of the contractually agreed sum in respect of a parking charge notice issued to the vehicle <vehicle reg> on 30 June 2017 at <address> for the following reason: Parked on the roadway in an area designated as no parking on the roadway or footpath at any time. The terms and conditions to which the defendant agreed to be bound by using the site were clearly displayed in prominent places throughout the site. The claimants claim is inclusive of recovery costs as per the terms and conditions, notice of which was given to the defendant by way of a parking charge notice number <number> and the claimant claims £160.00.
The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 30/06/2017 to 27/10/2017 on £160.00 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £0.03."


This post has been edited by tld2004: Fri, 3 Nov 2017 - 19:54
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nosferatu1001
post Fri, 3 Nov 2017 - 08:34
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Was it the first notice to keeper in august, and exa ctly when? Did they meet POFAs requirements to send the first NtK such that it is received between 29 and 56 days?

Blue badges hae no INHERENT meaning on private land, only what the landholder states.

What does your lease state? Or AST, or rental agreement, etc....

Edit the post. The REGISTERED KEEPER was contacted by the parking company, they dont know who drove, dont tell them. THis is due to POFA requirements.

They are claiming that the defendant is the driver.

Waht is the date of issue of the claim form?

The defendant MUST go ONLINE, and ACKNOWLEDGE the claim form. That gives you 33 days from date of issue for the defendant to print, sign, scan to PDF and email defence to the court. You need to get cracking then on a defence - there are dozens here.

This post has been edited by nosferatu1001: Fri, 3 Nov 2017 - 08:36
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ostell
post Fri, 3 Nov 2017 - 08:53
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There was no windscreen ticket therefore question is: Was the notice to keeper received within 14 days.

User "The driver.... " in your first post, any way you like so that the possible identity of the driver cannot be inferred.

Edit: Just realised that the time period is in excess of the 14 days and therefore there is no keeper liability so important to edit.

This post has been edited by ostell: Fri, 3 Nov 2017 - 08:56
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tld2004
post Fri, 3 Nov 2017 - 20:06
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Thanks both for your replies.

Here is the timeline:

“offence” happened on 30 June 2017
NtK dated 6 July 2017 (so received by 8 July 2017 latest).
Another NtK was received on 13 July 2017.
Then letter received from UCS dated 17 August 2017.
Then a letter from CSB Solicitors dated 5 September 2017.
Court claim form dated 30 October 2017, received in post yesterday - 2 November 2017.

I can confirm these dates are 100% accurate as she’s just given me all the letters!

Please advise

This post has been edited by tld2004: Fri, 3 Nov 2017 - 20:47
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ostell
post Fri, 3 Nov 2017 - 21:39
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So,, again, what does the lease say about parking?
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tld2004
post Sat, 11 Nov 2017 - 11:19
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Hi Guys

Apologies for the delay - I've been obtaining copies of the property's paperwork.

I have uploaded a redacted copy of what I think is the lease document here: https://imgur.com/a/eRYHJ

The only thing I can see that references parking is on page 4: Schedule 2, points 5 and 6.

Can someone please confirm if this helps?

Many thanks

This post has been edited by tld2004: Sat, 11 Nov 2017 - 15:04
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SchoolRunMum
post Sat, 11 Nov 2017 - 18:06
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QUOTE
Then a letter from CSB Solicitors dated 5 September 2017.


Was that purporting to be a Letter before Claim, but without enclosing any information, copy letters, photos, a copy of the contractual sign?

QUOTE
parking outside our flat whilst bringing shopping in.

You need to read Jopson v HomeGuard, a persuasive case heard on appeal and decided by Senior Circuit Judge, HHJ Charles Harris QC, linked here along with Saeed v Plustrade and Pace v Noor (all useful for the Defendant's later Witness Statement and evidence:

http://parking-prankster.blogspot.co.uk/20...al-parking.html

Was the car 'left standing on the accessway'? If so, then it contravenes point #6 of the Schedule in the lease, however, it can also be argued that the lease PROHIBITS such parking, therefore it is impossible for a third party parking chancer to actively offer parking licences there at a cost. i.e. signs effectively saying: ''you can park here but you must pay us £100'', in itself breaches the covenants in the Schedule.

See what I mean?

These cases are always worth fighting. Make sure the Defence is signed by the Defendant keeper (NOT YOU) and I would base it on Johnersh's ''own space'' defence as linked in post #2 of the NEWBIES thread on MSE here:

http://forums.moneysavingexpert.com/showthread.php?t=4816822

You will have to edit it to suit because her lease doesn't quite match the case Johnersh wrote that defence about.

Why does the lease talking about indemnifying a 'Club' and suggests it's not wholly a residential site? Can you tell us more about the site?
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tld2004
post Sat, 11 Nov 2017 - 18:42
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Hi SchoolRunMum,

Correct - the letter from CSB Solicitors was the letter before claim. Just a one page letter with no appendices attached etc.

RE: the land:
Its a big block with circa 80 flats. From what I know, the landowner/freeholder owned a big plot of land. Some of it was leased/sold to the cricket ground thats behind the block flats and some leased/sold to BP for them to build the petrol station.

I've uploaded a pic of the parking sign for reference: https://imgur.com/XWEmTHR


This post has been edited by tld2004: Sat, 11 Nov 2017 - 18:48
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emanresu
post Sun, 12 Nov 2017 - 07:43
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Look for "forbidding contracts" as the sign makes no offer. In addition the "penalty" element is not clear and fails the prominence test of ParkingEye v Beavis (backed by Dennings Red Hand Rule in Spurling v Bradshaw [1956] 1 WLR 461)


This post has been edited by emanresu: Sun, 12 Nov 2017 - 07:46


--------------------
Where there is a claim - there is a counterclaim.
Are Parking companies misusing your personal data or interfering with your lease? Counterclaims are only £25. Makes them sit up and take notice. For leaseholds, join in the Managing agents too. Since the purpose of these claims is to frighten you, give them something to be frightened of.
Subject Access Requests to the DVLA?Find out who accessed your data and when. Try SubjectAccess.Requests@dvla.gsi.gov.uk. [Apologies if it does not work]
Double Dip / ANPR FaultsThe BPA Report on ANPR Double Dips is here. Ideal case for a counterclaim (see above).
Daily Court List. See who is doing what and where here
Printing and posting Witness Statements. Easy and cheap way DoxDirect
What is court like. A District Judge's view
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tld2004
post Mon, 13 Nov 2017 - 20:45
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Hi All

Attached is my draft defence I put together using a combo of Johnersh's and other forum posts, as suggested. Your thoughts on this defence would be greatly appreciated. I've highlighted any additions I've made in red.


DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark <VEHICLE REG> which is the subject of these proceedings. The vehicle is insured with eSure with two of named drivers permitted to use it.

4. It is admitted that on 30 June 2017 the Defendant's vehicle was temporarily parked at <ADDRESS>, for no longer than 20 minutes to accommodate a drop-off.

5. No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”)

6. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

6.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Claimant in these proceedings under the provisions set out by statute in the POFA.

6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
• 6.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
• 6.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

It is not admitted that the Claimant has complied with the relevant statutory requirements.

6.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle’s keeper is obliged to name the driver to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
7. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of <ADDRESS>, whose leasehold agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.[DELETE THIS OR KEEP?]

8. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.

The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

9. Accordingly it is denied that:
• 9.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
• 9.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.


Alternative Claim – Forbiddance Notice
10. It is believed that the Claimant has no standing to bring this claim. The proper Claimant is the landowner. The claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to London Parking Solutions. The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

10.1. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.


Alternative Claim - Failure to set out clearly parking terms

11. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

11.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate:

• 11.1.1. At the time of the material events the signage was deficient in number, distribution, wording, lighting, and free of foliage to reasonably convey a contractual obligation;

• 11.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

• 11.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

11.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

11.3. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement. [SHOULD I DELETE THIS AS MENTIONED IN POINT 10?]

12. It is denied that the Claimant has any entitlement to the sums sought.

13. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.


STATEMENT OF TRUTH
I confirm that the contents of the Defence are true.



Many thanks


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The Rookie
post Tue, 14 Nov 2017 - 06:54
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Statement of truth is for a witness statement, not a defence which the judge will decide for themselves if its 'true' (valid) or not.



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

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 8-0 PPC's
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tld2004
post Tue, 14 Nov 2017 - 09:40
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QUOTE (The Rookie @ Tue, 14 Nov 2017 - 06:54) *
Statement of truth is for a witness statement, not a defence which the judge will decide for themselves if its 'true' (valid) or not.


Good point - Thank you. Does the Defence look ok though? Any other comments or feedback?

There are a few points I'm not certain of:

5. No Notice to driver was provided. Should this be mentioned, or should I combine this into point 6 so it reads as follows: "It is denied that the Defendant was the driver of the vehicle. No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). The Claimant is put to strict proof. "

7. Does my lease support this point? I'm aware that the template from Johnersh's relates to a defence for someone parking in someone else's space. My lease doesn't mention parking spaces at all. It just says parking on the accessway is prohibited, nothing else. No fines, no amounts due to landowner etc. Therefore, I think that this point confuses it.

10. Is this point clear enough about the forbidding notice?



I believe that the main defence exists for the following reason:
  1. The lease only says that parking is prohibited on the access way with no mention of any penalties due if parked there.
  2. The Claimant has not identified the driver as no NtD was issued.
  3. The sign is a forbidding notice only and only the landowner can claim.


I'm worried that I'm confusing things, especially with point 7.

Can someone please help?

Thank you


This post has been edited by tld2004: Tue, 14 Nov 2017 - 10:02
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nosferatu1001
post Tue, 14 Nov 2017 - 10:44
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Lease - if this was for parking on access ways, why bring up parking on an allocated spot? if the vehicle was stopped on the access way for loading / unloading, MAKE THIS ABSOLUTELY CRYSTAL CLEAR. This is a normal use of an access way close to a building, and as loading / unloading are EXPLICITLY different to the act of parking - see TMA2004, where DYL prohibit PARKING but allowing boarding / alighting AND loading / unloading as authority. They cannot say "no parking" and then say you pakred when the vehicle wasnt.

POint 10 - no, because you dont actually talk about forbidding signs. You talk about standing, which is irrelevant to this points set up.

You just need to state that the signage makes no offer to park, meaning anyone parking there is a trespasser at worst as no contract can be formed without an offer, and as the claimant is not hte landholder, they have no standing to bring a claim of trespass against the D.
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tld2004
post Tue, 14 Nov 2017 - 14:18
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Thank you Nosferatu1001.

I have amended the Defence as follows, is this better?

DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark <VEHICLE REG> which is the subject of these proceedings. The vehicle is insured with eSure with two of named drivers permitted to use it.

4. It is admitted that on 30 June 2017 the Defendant's vehicle was temporarily parked at <ADDRESS>, for no longer than 20 minutes to accommodate unloading only.

5. No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

6. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

6.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the POFA.

6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
6.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

It is not admitted that the Claimant has complied with the relevant statutory requirements.

6.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle’s keeper is obliged to name the driver to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
7. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of <ADDRESS>, whose leasehold agreement permits the parking of vehicle(s) on land.

8. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.

The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

9. Accordingly it is denied that:
9.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Claim – Vehicle was not parked
10. The vehicle was stopped on the access way for the purpose of unloading only, in accordance with Part 6 of The Traffic Management Act 2004, and was not parked.
10.1. The lease provides use of a private garage at the address, causing no need for the vehicle to be parked on the access way other than for loading/unloading.
10.2. Strict proof is required that the vehicle was parked for a period longer than 20 minutes and was not unloading.

Alternative Claim – No offer to park
11. The signage makes no offer to park, meaning no contract can be formed without an offer.

Alternative Claim – No standing to bring a Claim
12. It is believed that the Claimant has no standing to bring this claim nor is entitled to any sums sought. The proper Claimant is the landowner. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to London Parking Solutions. The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

12.1. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.


Alternative Claim - Failure to set out clearly parking terms
13. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

13.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate:

13.1.1. At the time of the material events the signage was deficient in number, distribution, wording, lighting, and free of foliage to reasonably convey a contractual obligation;

13.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

13.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

13.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

14. It is denied that the Claimant has any entitlement to the sums sought.

15. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.
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nosferatu1001
post Tue, 14 Nov 2017 - 15:10
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10 - not "In accordance...." - the definition and distinction between load // unloading and parking is given in the TMA2004, and in addition in Homeguard vs Jopson, a persuasive appeal court case, it was found that there is a difference between parkign and stopping for the purpose if loading and unloading, and that there is no sense in stopping flat owners from being able to load and unload.

Well 11 is way too short. Youhave not explained that they are therefore not offering any consideration (parking, for example) and so no contract can possibly be formed.
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tld2004
post Tue, 14 Nov 2017 - 20:46
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Ok, I've made some further changes to help flesh it out more...

Any thoughts/comments?


DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.


Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark <VEHICLE REG> which is the subject of these proceedings. The vehicle is insured with eSure with two of named drivers permitted to use it.

4. It is admitted that on 30 June 2017 the Defendant's vehicle had stopped at <ADDRESS>, for no longer than 20 minutes to accommodate unloading only. The vehicle was not parked. The Claimant is put to strict proof.

5. No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

6. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

6.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the POFA.

6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
6.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

It is not admitted that the Claimant has complied with the relevant statutory requirements.

6.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle’s keeper is obliged to name the driver to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract

7. The Defendant avers that there was an absolute entitlement to park vehicle(s) deriving from the terms of the lease, which cannot be fettered by any alleged parking terms.
7.1. The is no agreement within the Defendants’ lease that states the Defendant or lawful users of his/her vehicle having to pay parking penalties to London Parking Solutions or any third party parking management company, when the leasehold agreement permits the parking of vehicles on the land.
7.2. Primacy of contract cannot be amended by private parking company signs unless there has been a variation of the tenancy, which has not been the case.

7.3. The Defendant avers that the operator’s signs cannot:
7.3.1. override the existing rights enjoyed by residents and their visitors
7.3.2. that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.
The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson vs Homeguard Services Ltd [2016] and of Sir Christopher Slade in K-Sultana Saeed vs Plustrade Ltd [2001] EWCA Civ 2011, in the event that this matter proceeds to trial.

7.4. Accordingly it is denied that:
7.4.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.4.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Claim – Vehicle was not parked
8. The vehicle was stopped on the access way for the purpose of unloading only, as per Part 6 of The Traffic Management Act 2004, and was not parked. This was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in Jopson vs Home Guard Services B9GF0A9E.
8.1. In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''
8.2. In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.
8.3. The lease provides use of a private garage at the address, causing no need for the vehicle to be parked on the access way other than for loading/unloading.
8.4. Strict proof is required that the vehicle was parked for a period longer than 20 minutes and was not unloading.

Alternative Claim – No offer to park
9. The signage forbids parking and makes no offer to park, meaning no contract can be formed without an offer. This has been well documented from several other cases, particularly PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016] and Horizon Parking v Mr J C5GF17X2 [2016].
9.1 The Court will be referred to these cases in the event that this matter proceeds to trial.

Alternative Claim – No standing to bring a Claim
10. It is believed that the Claimant has no standing to bring this claim nor is entitled to any sums sought. The proper Claimant is the landowner. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to London Parking Solutions. The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

10.1. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

Alternative Claim - Failure to set out clearly parking terms
11. The Defendant relies upon ParkingEye Ltd v Barry Beavis [2015] UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

11.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate:

11.1.1. At the time of the material events the signage was deficient in number, distribution, wording, lighting, and free of foliage to reasonably convey a contractual obligation;

11.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

11.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

12. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

13. It is denied that the Claimant has any entitlement to the sums sought.

14. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

Signed by the Defendant


This post has been edited by tld2004: Wed, 15 Nov 2017 - 15:38
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tld2004
post Thu, 16 Nov 2017 - 13:27
Post #17


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Posts: 36
Joined: 14 Oct 2016
From: london
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Can anyone else help to review the defence? It would be greatly appreciated.

Thanks

DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.


Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark <VEHICLE REG> which is the subject of these proceedings. The vehicle is insured with eSure with two of named drivers permitted to use it.

4. It is admitted that on 30 June 2017 the Defendant's vehicle had stopped at <ADDRESS>, for no longer than 20 minutes to accommodate unloading only. The vehicle was not parked. The Claimant is put to strict proof.

5. No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

6. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

6.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the POFA.

6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
6.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

It is not admitted that the Claimant has complied with the relevant statutory requirements.

6.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle’s keeper is obliged to name the driver to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
7. The Defendant avers that there was an absolute entitlement to park vehicle(s) deriving from the terms of the lease, which cannot be fettered by any alleged parking terms.
7.1. The is no agreement within the Defendants’ lease that states the Defendant or lawful users of his/her vehicle having to pay parking penalties to London Parking Solutions or any third party parking management company, when the leasehold agreement permits the parking of vehicles on the land.
7.2. Primacy of contract cannot be amended by private parking company signs unless there has been a variation of the tenancy, which has not been the case.

7.3. The Defendant avers that the operator’s signs cannot:
7.3.1. override the existing rights enjoyed by residents and their visitors
7.3.2. that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.
The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson vs Homeguard Services Ltd [2016] and of Sir Christopher Slade in K-Sultana Saeed vs Plustrade Ltd [2001] EWCA Civ 2011, in the event that this matter proceeds to trial.

7.4. Accordingly it is denied that:
7.4.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.4.2. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Claim – Vehicle was not parked
8. The vehicle was stopped on the access way for the purpose of unloading only, as per Part 6 of The Traffic Management Act 2004, and was not parked. This was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in Jopson vs Home Guard Services B9GF0A9E.
8.1. In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''
8.2. In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.
8.3. The lease provides use of a private garage at the address, causing no need for the vehicle to be parked on the access way other than for loading/unloading.
8.4. Strict proof is required that the vehicle was parked for a period longer than 20 minutes and was not unloading.

Alternative Claim – No offer to park
9. The signage forbids parking and makes no offer to park, meaning no contract can be formed without an offer. This has been well documented from several other cases, particularly PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016] and Horizon Parking v Mr J C5GF17X2 [2016].
9.1 The Court will be referred to these cases in the event that this matter proceeds to trial.

Alternative Claim – No standing to bring a Claim
10. It is believed that the Claimant has no standing to bring this claim nor is entitled to any sums sought. The proper Claimant is the landowner. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to London Parking Solutions. The Defendant claims that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

10.1. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

Alternative Claim - Failure to set out clearly parking terms
11. The Defendant relies upon ParkingEye Ltd v Barry Beavis [2015] UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

11.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate:

11.1.1. At the time of the material events the signage was deficient in number, distribution, wording, lighting, and free of foliage to reasonably convey a contractual obligation;

11.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

11.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

12. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

13. It is denied that the Claimant has any entitlement to the sums sought.

14. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

Signed by the Defendant


This post has been edited by tld2004: Thu, 16 Nov 2017 - 13:29
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nosferatu1001
post Thu, 16 Nov 2017 - 14:00
Post #18


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Group: Members
Posts: 15,262
Joined: 27 Nov 2007
Member No.: 15,642



strict proof... that the vehicle was not unloading and was actually parked.

It seems OK. As you can tell, there is a LOT of activity in the forum, and were struggling to keep up
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tld2004
post Thu, 16 Nov 2017 - 17:20
Post #19


Member


Group: Members
Posts: 36
Joined: 14 Oct 2016
From: london
Member No.: 87,760



Thanks very much Nosferatu, its greatly appreciated.
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tld2004
post Sun, 19 Nov 2017 - 16:49
Post #20


Member


Group: Members
Posts: 36
Joined: 14 Oct 2016
From: london
Member No.: 87,760



Hi Guys

I've logged in online to MCOL to file the Defence, and it is asking for "Defence Particulars".

Can someone please confirm if this is where I submit the main defence, or is "Defence Particulars" for something else?

Thanks
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