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EL14331
post Wed, 13 Mar 2019 - 10:57
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Hi all,

I have been recommended this website by someone at LeagleBeagles. I have been doing most my research over there and am quite far through the process, so apologies for the big chunk of text coming! In the following text, every letter referred to has been received twice - once for each of the tickets they are holding against me.

On the 3rd and 9th May 2016, the driver received windscreen parking charge notices from Britannia Parking. When they received the first one, they went into the building attached to the off-road car park to talk to reception. The receptionist advised them not to pay as Britannia is a private company and therefore the charges are unenforceable. They now know that they shouldn’t have listened to her, but the building is owned by their university so they believed they could trust them!

I, the keeper of the vehicle, never received a NTK in the post. I had not heard any more about it, until late December 2018. I received a letter from BW Legal chasing me for the charge (£70 for the ticket, plus an addition £60 in ‘fees’). I ignored this letter, retrospectively probably an unwise decision. I emailed the owner of the building, who advised me that their receptionist shouldn't have told the driver that as they don't own the car park; the university building next door did. I then emailed the university (where I am a student) who told me that they only own some of the spaces, so I needed to find out which one the driver was in both times (hence the SAR later in the post). At the start of January 2019, I received a Letter of Claim stating that I owed £130 (per ticket), with an estimated additional fee of roughly £90. Just before the deadline of 1st February 2019, I submitted a SAR to both Britannia Parking and BW Legal. This was because I no longer have the windscreen ticket, and I wanted to see if they try to claim they did send a NTK. I have also emailed the DVLA (waiting to hear back from them) to see when/who accessed data on me.

The only data BW Legal seem to have on me is my address at the time of the PCN, and the address I moved to in December 2016. Britannia Parking sent a follow-up email on 15th Feb 2019 asking for my PCN number(s), vehicle registration, address at the time of the PCN. I replied on 3rd March 2019 (as this is when I found the message in my ‘junk’ folder), and they have a month from that date to reply to me.

I have now been issued a Claim Form (In the County Court Business Centre), with the issue date of 26 Feb 2019. However, I am still waiting to hear back from Britannia Parking about my SAR. I have sent off an acknowledgement of service for both tickets, and said that I will be defending the whole claim. I was wondering if someone could possibly advise me on how to proceed? I have read a fair amount of threads on how to prepare a defence, but I was hoping someone with a lot more knowledge than me can take a look over my forms and tell me if there's anything I should be focusing one!

Additionally, I never submitted a POPLA appeal in time as I didn’t receive a NTK - will this affect my defence?

Thank you so much for your help, its very much appreciated!








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southpaw82
post Thu, 14 Mar 2019 - 18:37
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QUOTE (EL14331 @ Thu, 14 Mar 2019 - 17:32) *
QUOTE (southpaw82 @ Thu, 14 Mar 2019 - 17:22) *
QUOTE (ManxRed @ Thu, 14 Mar 2019 - 16:41) *
The sign is prohibitive. It is offering nothing at all to non-permit holders.

So, non-permit holders cannot enter into a contract as a result of that sign. No contract = no breach possible = no charge for a breach of terms.

For non-permit holders, parking here would be a trespass issue, not a contract issue.

That’s one analysis. Another is that the contract applies to anyone who parks in the car park (that’s what the, admittedly small, express words of the sign say) and that being a permit holder is one of the conditions on which parking is offered and if you’re not a permit holder you are liable to pay a parking charge. Contractual words are construed in accordance with what an objective bystander in possession of the facts would consider them to be, subject to statutory modification by various bits of consumer protection regulation. A court could well determine that in context the signs do offer a contract and that “permit holders only” is a condition of being allowed to park free of charge rather than a condition precedent to entering into the contract; to hold otherwise would, arguably, frustrate the whole purpose for which the purported contract was offered in the first place, i.e. to deter non-permit holders from parking.

I'm really sorry, could you put that in layman terms for me?

The law relating to analysing the language of a contract isn't as simple as people often think. It is open to a court to look beyond "permit holders only" and to construe the signs as a whole against the context of why they are there.


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henrik777
post Thu, 14 Mar 2019 - 19:47
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QUOTE (southpaw82 @ Thu, 14 Mar 2019 - 18:37) *
QUOTE (EL14331 @ Thu, 14 Mar 2019 - 17:32) *
QUOTE (southpaw82 @ Thu, 14 Mar 2019 - 17:22) *
QUOTE (ManxRed @ Thu, 14 Mar 2019 - 16:41) *
The sign is prohibitive. It is offering nothing at all to non-permit holders.

So, non-permit holders cannot enter into a contract as a result of that sign. No contract = no breach possible = no charge for a breach of terms.

For non-permit holders, parking here would be a trespass issue, not a contract issue.

That’s one analysis. Another is that the contract applies to anyone who parks in the car park (that’s what the, admittedly small, express words of the sign say) and that being a permit holder is one of the conditions on which parking is offered and if you’re not a permit holder you are liable to pay a parking charge. Contractual words are construed in accordance with what an objective bystander in possession of the facts would consider them to be, subject to statutory modification by various bits of consumer protection regulation. A court could well determine that in context the signs do offer a contract and that “permit holders only” is a condition of being allowed to park free of charge rather than a condition precedent to entering into the contract; to hold otherwise would, arguably, frustrate the whole purpose for which the purported contract was offered in the first place, i.e. to deter non-permit holders from parking.

I'm really sorry, could you put that in layman terms for me?

The law relating to analysing the language of a contract isn't as simple as people often think. It is open to a court to look beyond "permit holders only" and to construe the signs as a whole against the context of why they are there.



Of course one would hope the court would be reminded of the applicable law

http://www.legislation.gov.uk/ukpga/2015/1...tion/69/enacted

69 Contract terms that may have different meanings
(1)If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.
(2)Subsection (1) does not apply to the construction of a term or a notice in proceedings on an application for an injunction or interdict under paragraph 3 of Schedule 3.
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southpaw82
post Thu, 14 Mar 2019 - 19:55
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That would be why I said “subject to...”. I’m not convinced the section bites in the circumstances but that’s a matter for the court.


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EL14331
post Sun, 17 Mar 2019 - 16:19
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Hi again
Apologies for the delayed reply, I had a family emergency that unfortunately couldn't wait. I have written my defence based on this thread, and some found on other threads/websites. Could anyone please have a look over it to see if theres anything missing, or anything that isn't right? Thank you!


IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BRITANNIA PARKING LTD (Claimant)

-and-

XXXX XXXX (Defendant)

________________________________________
DEFENCE
________________________________________


1. The Defendant (Miss XXXXX, DOB XX.XX.XXXX, residing at XXXXXXXXX) is the registered keeper of the vehicle in question (XXXX XXX). The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at XXXXXXXX car park on XX.XX.XXXX. The Defendant denies that The Claimant is entitled to relief in the sum claimed, or at all.

2. The date of the alleged incident is XX.XX.XXXX which is nearly 3 years ago. It is extremely unreasonable for The Claimant to store DVLA data for 3 years then serve a claim with no due diligence nor evidence, in the hope that The Defendant has no paperwork relating to this alleged debt. By delaying serving a claim, The Claimant has generated interest of £20.46.

3. The Claimant’s solicitors, BW Legal, are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details, nor even checking for a true cause of action. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to The Defendant’s significant detriment.

4. If the driver happened to see the signage on each occasion, signs are located at a distance, unlit, and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. Upon further inspection of the cark park, signage stating terms and conditions were not visible, obvious or readable from any location when inside a vehicle. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.
4.1 The terms on The Claimant's signage are displayed in an area which cannot be read from a passing vehicle and is in such a position posted over Xft high. That anyone attempting to read the tiny font would be unable to do so easily.
4.2 It is denied that The Claimant's sign sets out the terms in a sufficiently clear or visible manner which would be capable of binding any reasonable person reading them It is, therefore, denied that The Claimant's signage is capable of creating a legally binding contract.
4.3 The Defendant requests strict proof of where the car was parked and from photos taken how the signage appeared on the material date, at that time, from the angle of the driver's perspective. The Defendant requires how the signage appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this

5. This case can be distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied 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. As far as it can be ascertained, based upon the vague particulars of claim, it seems reasonable to assume the driver of the vehicle did not see the signage as signage displayed in an area which cannot be read from a passing vehicle and is in such a position posted over Xft high. The defendant believes this distinguishes this case from Parking Eye vs Beavis [2015] none of this applies in this material case.

6. No evidence has been provided that a valid permit was not on display. Photographs of the keeper’s vehicle in the car park does not constitute a proven contravention of the parking conditions.
6.1. The Claimant has failed to provide any evidence that a valid permit was not on display.

7. The Claimant is put to strict proof of full compliance that it has sufficient proprietary interest in the land under the correct address, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case the amount unknown as the Notice to Keeper was never served/delivered. The claim includes an additional £60, for estimated legal costs, which appears to be an attempt at double recovery. This is because The Claimant later adds more legal costs to the claim.

9. The provision is a penalty and not a genuine pre-estimate of loss.
9.1. as the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking on the site in question.
9.2. the amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
9.3. the clause is specifically expressed to be a parking charge on the Claimant's signs.

10. In addition to the original parking charge, for which liability is denied, The Claimant has artificially inflated the value of the Claim by adding purported additional costs. The added costs are an artificially invented figure, which represents an attempt to circumvent the small claims costs rules.

11. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

12. In summary, it is The Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

The Defendant believe the facts contained in this Defence are true.


Name XXXX
Signature XXXX
Date XXXX


With regards to the 'Xft high' parts, I have yet to measure the exact heigh of the sign. However, I stand at 5 foot 7 inches, and had to extend my arm up to be able to take a picture of the sign, in order to be able to read it off my phone.

At the end of section 4, before 4.1, I have written what I believe is right about the wording f the signage. I am attempting to use what I have been helped in here, however I am unsure if I have got it right.

Section 6 will be removed if the SAR request a) does not come back in time for me to submit my defence, and b) if this is indeed what it shows.

I am unsure about section 9, as while I never received a Notice to Keeper for either ticket, I am yet to hear back from Britannia about whether they supposedly sent on, and the DVLA as to what date Britannia accessed my details.

Many thanks to anyone who can give me some guidance!

This post has been edited by EL14331: Sun, 17 Mar 2019 - 16:24
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southpaw82
post Sun, 17 Mar 2019 - 18:18
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There’s plenty in there that I would not include but quite frankly I’m tired of pointing them out. Perhaps whoever created the template your defence is based on might like to consider them (I’ve posted them plenty of times elsewhere) and amend the template accordingly. Or perhaps not - most people seem to work on the basis that it’s got by ok before so why trouble with what the rules actually say? They also seem to have scant consideration that people will blindly copy the template and won’t consider whether what is in it is true or not, thereby risking contempt of court proceedings.


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EL14331
post Sun, 17 Mar 2019 - 18:52
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QUOTE (southpaw82 @ Sun, 17 Mar 2019 - 18:18) *
There’s plenty in there that I would not include but quite frankly I’m tired of pointing them out. Perhaps whoever created the template your defence is based on might like to consider them (I’ve posted them plenty of times elsewhere) and amend the template accordingly. Or perhaps not - most people seem to work on the basis that it’s got by ok before so why trouble with what the rules actually say? They also seem to have scant consideration that people will blindly copy the template and won’t consider whether what is in it is true or not, thereby risking contempt of court proceedings.

I'm really sorry if I have annoyed you, I hadn't realised I'd got it so wrong. The defence isn't from a template as such, its bits from other threads that I felt applied to my case that I have edited to be relevant to me. I've been looking at threads all day to try and understand what to write but I guess I've completely misunderstood my case, and the law.
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southpaw82
post Sun, 17 Mar 2019 - 21:18
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QUOTE (EL14331 @ Sun, 17 Mar 2019 - 18:52) *
QUOTE (southpaw82 @ Sun, 17 Mar 2019 - 18:18) *
There’s plenty in there that I would not include but quite frankly I’m tired of pointing them out. Perhaps whoever created the template your defence is based on might like to consider them (I’ve posted them plenty of times elsewhere) and amend the template accordingly. Or perhaps not - most people seem to work on the basis that it’s got by ok before so why trouble with what the rules actually say? They also seem to have scant consideration that people will blindly copy the template and won’t consider whether what is in it is true or not, thereby risking contempt of court proceedings.

I'm really sorry if I have annoyed you, I hadn't realised I'd got it so wrong. The defence isn't from a template as such, its bits from other threads that I felt applied to my case that I have edited to be relevant to me. I've been looking at threads all day to try and understand what to write but I guess I've completely misunderstood my case, and the law.

You haven’t annoyed me at all.

All you have to do in your defence is tell your story and address the claimant’s points to show why you’re not liable. The fact that they may not have complied with the civil procedure rules isn’t a defence. You’re lucky the claimant hasn’t alleged in the claim that no permit was displayed because all you’ve said is no evidence has been presented. If they had made such an allegation you’d have had to admit it if it was true.

Your paragraph 2 is largely irrelevant - the law says they have six years to commence a claim so you have no defence on that point. At best it’s an argument against allowing interest. I don’t even know what the point of paragraph 3 is.

“If the driver happened to see the signs” is a potentially dangerous trap. If you were the driver then you’re coming awfully close to misleading the court (I don’t know if you were or not because the usual suspects constantly bleat about taking down the name of the driver NOW!!!!11!!!1! without appreciating that it makes it somewhat difficult to advise you. But hey, they’re not the ones signing the statement of truth, right?)

I’m not sure the argument in paragraph 9 are any good in light of Beavis and other authorities.

This post has been edited by southpaw82: Sun, 17 Mar 2019 - 21:19


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charitynjw
post Mon, 18 Mar 2019 - 09:37
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It could be considered an abuse of process to issue 2 claims on the same date for substantially the same thing.

This post has been edited by charitynjw: Mon, 18 Mar 2019 - 09:38
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EL14331
post Mon, 18 Mar 2019 - 10:31
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QUOTE (southpaw82 @ Sun, 17 Mar 2019 - 21:18) *
QUOTE (EL14331 @ Sun, 17 Mar 2019 - 18:52) *
QUOTE (southpaw82 @ Sun, 17 Mar 2019 - 18:18) *
There’s plenty in there that I would not include but quite frankly I’m tired of pointing them out. Perhaps whoever created the template your defence is based on might like to consider them (I’ve posted them plenty of times elsewhere) and amend the template accordingly. Or perhaps not - most people seem to work on the basis that it’s got by ok before so why trouble with what the rules actually say? They also seem to have scant consideration that people will blindly copy the template and won’t consider whether what is in it is true or not, thereby risking contempt of court proceedings.

I'm really sorry if I have annoyed you, I hadn't realised I'd got it so wrong. The defence isn't from a template as such, its bits from other threads that I felt applied to my case that I have edited to be relevant to me. I've been looking at threads all day to try and understand what to write but I guess I've completely misunderstood my case, and the law.

You haven’t annoyed me at all.

All you have to do in your defence is tell your story and address the claimant’s points to show why you’re not liable. The fact that they may not have complied with the civil procedure rules isn’t a defence. You’re lucky the claimant hasn’t alleged in the claim that no permit was displayed because all you’ve said is no evidence has been presented. If they had made such an allegation you’d have had to admit it if it was true.

Your paragraph 2 is largely irrelevant - the law says they have six years to commence a claim so you have no defence on that point. At best it’s an argument against allowing interest. I don’t even know what the point of paragraph 3 is.

“If the driver happened to see the signs” is a potentially dangerous trap. If you were the driver then you’re coming awfully close to misleading the court (I don’t know if you were or not because the usual suspects constantly bleat about taking down the name of the driver NOW!!!!11!!!1! without appreciating that it makes it somewhat difficult to advise you. But hey, they’re not the ones signing the statement of truth, right?)

I’m not sure the argument in paragraph 9 are any good in light of Beavis and other authorities.


Okay, thank you! I'm in the process of amending/taking parts out of my defence now. I put so much information into it because I read that if there is anything I don't include in my defence now that I wish to talk about later (e.g. the fact that they generated interest), then it has a chance of not being used - have I got this wrong?

With regards to showing why I am not liable for what they are claiming for - I might be wrong, but it doesn't look like they have many points in the 'Particulars of Claim' as to why I am liable. In the other letters, they give a contravention description ('failed to display a valid P&D ticket or Permit'), is this what I base my defence off? Apologies if thats a stupid question, I just want to be sure.

I have a few questions:
Do you think I should try and amend section 9, or remove it altogether?
Do you think I should remove most of section 2 and leave the bit about interest, or remove it altogether?
Also, should I include how a NTK was never delivered, or is that something for later in the process?

QUOTE (charitynjw @ Mon, 18 Mar 2019 - 09:37) *
It could be considered an abuse of process to issue 2 claims on the same date for substantially the same thing.

Thank you for reminding me! Is this something to include in my defence?

This post has been edited by EL14331: Mon, 18 Mar 2019 - 10:30
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southpaw82
post Mon, 18 Mar 2019 - 13:53
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QUOTE (EL14331 @ Mon, 18 Mar 2019 - 10:31) *
I put so much information into it because I read that if there is anything I don't include in my defence now that I wish to talk about later (e.g. the fact that they generated interest), then it has a chance of not being used - have I got this wrong?


You are broadly correct - your pleadings (which in your case is your defence) should set out the ambit of your case, with some reliance being placed on witness statements. That being said, I’m not sure you have a very good case for arguing against the usual award of interest. It will only arise if the court has found that you are liable for the sum claimed (or some other sum) and it follows that the claimant will have been kept out of that money for the period from when it was due to payment. On that basis, why shouldn’t they be awarded interest? If we were talking thousands of pounds of interest it may be worth a go but I’m by no means convinced that a court will be interested in hearing an argument over £25 or whatever of interest.

QUOTE
With regards to showing why I am not liable for what they are claiming for - I might be wrong, but it doesn't look like they have many points in the 'Particulars of Claim' as to why I am liable. In the other letters, they give a contravention description ('failed to display a valid P&D ticket or Permit'), is this what I base my defence off? Apologies if thats a stupid question, I just want to be sure.


Their particulars of claim are remarkably brief. I don’t see any harm in basing your defence off their pre-claim paperwork.

QUOTE
Do you think I should try and amend section 9, or remove it altogether?


You should only advance points that have some prospect of success. I’m open to argument but I don’t see what prospect that argument has:

1. If it’s a debt claim then arguments about a genuine pre-estimate of loss aren’t helpful, as it’s not a claim for breach of contract.

2. In light of the decision in Beavis/Makdessi I think it will be difficult to maintain a penalty argument in the circumstances.

3. Ordinarily, a party can be sanctioned by costs awards if they advance arguments without merit - I don’t think that ought to be an issue in a small claims case of this nature.

QUOTE
Do you think I should remove most of section 2 and leave the bit about interest, or remove it altogether?


I’d remove it since I don’t think it is an argument with any merit but it’s your case, not mine.

QUOTE
Also, should I include how a NTK was never delivered, or is that something for later in the process?


This is relevant if they’re claiming against you as the keeper (which isn’t clear, unsurprisingly) so if you want to base a defence on POFA you could include all elements where they have failed to comply with POFA. I wouldn’t go into too much detail - at a minimum you need to alert that claimant and the court that you are taking issue with their POFA compliance and you might wish to say something like “the claimant has not complied with POFA in the following ways:

1.....

2.....

3.....”

QUOTE
QUOTE (charitynjw @ Mon, 18 Mar 2019 - 09:37) *
It could be considered an abuse of process to issue 2 claims on the same date for substantially the same thing.

Thank you for reminding me! Is this something to include in my defence?

It could be an abuse of process (Johnson v Gore Wood & Co is the case). Whether you want to raise it or whether the court will care is another matter. Properly (if this wasn’t a tiny small claims case) you’d raise it by applying to strike out the latter proceedings as an abuse of process (which will cost you an application fee at least) and go on to argue the point at a hearing. Quite how the court would approach it in this case I don’t know - they might ignore it or they might raise it on the day if you ever get to a hearing.


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EL14331
post Mon, 18 Mar 2019 - 18:04
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Thats really informative, thank you so much. I have made some edits to my defence; I hope it is up to scratch.

IN THE COUNTY COURT

CLAIM No: XXXXXXXX

BRITANNIA PARKING LTD (Claimant)

-and-

XXXX XXXX (Defendant)

________________________________________
DEFENCE
________________________________________


1. The Defendant (Miss XXXX XXXX, DOB XX.XX.XXXX, residing at XXXXXXXXXX) is the registered keeper of the vehicle in question (XXXX XXX). The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at Bournemouth Uni Executive Business Centre car park on 03.05.2016. The Defendant denies that The Claimant is entitled to relief in the sum claimed, or at all.

2. The signage in the car park is of a ‘forbidding’ nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

3. Signs are located at a distance, unlit, and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. Upon further inspection of the cark park, signage stating terms and conditions were not visible, obvious or readable from any location when inside a vehicle. The Consumer Rights Act 2015 (s69) applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.
3.1 The terms on The Claimant's signage are displayed in an area which cannot be read from a passing vehicle and is in such a position posted over Xft high. That anyone attempting to read the tiny font would be unable to do so easily.
3.2 It is denied that The Claimant's sign sets out the terms in a sufficiently clear or visible manner which would be capable of binding any reasonable person reading them It is, therefore, denied that The Claimant's signage is capable of creating a legally binding contract.
3.3 The Defendant requests strict proof of where the car was parked and from photos taken how the signage appeared on the material date, at that time, from the angle of the driver's perspective. The Defendant requires how the signage appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

4. This case can be distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied 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. As far as it can be ascertained, based upon the vague particulars of claim, it seems reasonable to assume the driver of the vehicle did not see the signage as signage displayed in an area which cannot be read from a passing vehicle and is in such a position posted over Xft high. The defendant believes this distinguishes this case from Parking Eye vs Beavis [2015] none of this applies in this material case.

5. The Claimant has failed to comply with the Protection of Freedoms Act 2012, Schedule 4, at Section 4 in the following ways:
5.1. No Notice to Keeper was delivered.
5.2. The maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case the amount unknown as the Notice to Keeper was never served/delivered. The claim includes an additional £60, for estimated legal costs, which appears to be an attempt at double recovery. This is because The Claimant later adds more legal costs to the claim.

6. In addition to the original parking charge, for which liability is denied, The Claimant has artificially inflated the value of the Claim by adding purported additional costs. The added costs are an artificially invented figure, which represents an attempt to circumvent the small claims costs rules.

7. The Claimant is put to strict proof of full compliance that it has sufficient proprietary interest in the land under the correct address, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

8. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

9. Please let it be noted that The Defendant has not received the Subject Access Request (SAR) back at the time of forming this defence. As the full particulars are not known at this time, the defence may need to be amended.

10. In summary, it is The Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

The Defendant believe the facts contained in this Defence are true.


Name
Signature
Date


Thank you for having a read over it. One part I'm not sure about is section 9, as I'm not sure if this is acceptable in a defence.


Apologies for yet more questions, but I realised I had forgotten to mention that I emailed a SAR to BW Legal with the following message attached:

"I would like to add that your client has failed to comply with the requirements of POFA 8 (4):
The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
As such, they cannot hold me, the keeper, liable for the actions of the driver."

In their posted reply, they provided no response to the above. Does this affect my case at all, or do I dismiss it as a template response from them.
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southpaw82
post Mon, 18 Mar 2019 - 18:38
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QUOTE (EL14331 @ Mon, 18 Mar 2019 - 18:04) *
2. The signage in the car park is of a ‘forbidding’ nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6 [2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.


Don't refer to other small claims cases in your pleadings. If you want to raise them then do so later in submissions to the court (orally or in writing).

QUOTE
3. Signs are located at a distance, unlit, and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. Upon further inspection of the cark park, signage stating terms and conditions were not visible, obvious or readable from any location when inside a vehicle. The Consumer Rights Act 2015 (s69) applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.


I don't really understand the last sentence. What has s 69 of the CRA 2015 got to do with whether the driver saw or accepted the purported offer? The section deals with contract terms that have different meanings, not whether a sign was seen or not.

QUOTE
3.3 The Defendant requests strict proof of where the car was parked and from photos taken how the signage appeared on the material date, at that time, from the angle of the driver's perspective.


I'm not so sure about that. Do you know where the car was parked? You're using a phrase ("requests strict proof') that is generally used when you have no idea as to the truth or otherwise of an assertion. You can't dictate what evidence the claimant provides - they will put their case forward and you can challenge it and it's up to the court to decide whether it's proven or not.

QUOTE
The Defendant requires how the signage appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


See above. Also, use the third person - "the Defendant" not "I".

QUOTE
4. This case can be distinguished from Parking Eye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied 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. As far as it can be ascertained, based upon the vague particulars of claim, it seems reasonable to assume the driver of the vehicle did not see the signage as signage displayed in an area which cannot be read from a passing vehicle and is in such a position posted over Xft high. The defendant believes this distinguishes this case from Parking Eye vs Beavis [2015] none of this applies in this material case.


I don't really get your point. I doubt Beavis would have been decided the way it was if the court accepted that the signs were not seen and shouldn't reasonably have been seen. I don't see the relevance of Beavis at all to what you're saying.

QUOTE
7. The Claimant is put to strict proof of full compliance that it has sufficient proprietary interest in the land under the correct address, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.


I'd erase that as something like "The Defendant has no knowledge of the Claimant's legal right to control parking on the site and pursue claims relating to its use. The Claimant is put to proof to prove that it has such rights." I've never really known the difference between "proof' and "strict proof"...

QUOTE
8. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

9. Please let it be noted that The Defendant has not received the Subject Access Request (SAR) back at the time of forming this defence. As the full particulars are not known at this time, the defence may need to be amended.

10. In summary, it is The Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.


I would never include a request for a strike out in pleadings - as explained before, they ought to be the subject of an application. You could ask the court via letter.

QUOTE
In their posted reply, they provided no response to the above. Does this affect my case at all, or do I dismiss it as a template response from them.

In what way?


--------------------


Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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EL14331
post Mon, 18 Mar 2019 - 19:02
Post #33


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QUOTE
Don't refer to other small claims cases in your pleadings. If you want to raise them then do so later in submissions to the court (orally or in writing).

Is it acceptable to bring a notebook/paper into the courtroom for personal reference? I would like to write stuff like this down to make sure I remember the particulars.

QUOTE
I don't really understand the last sentence. What has s 69 of the CRA 2015 got to do with whether the driver saw or accepted the purported offer? The section deals with contract terms that have different meanings, not whether a sign was seen or not.

I have moved this to be a subsection of section 2, is this okay? Or is it an irrelevant point?

QUOTE
I don't really get your point. I doubt Beavis would have been decided the way it was if the court accepted that the signs were not seen and shouldn't reasonably have been seen. I don't see the relevance of Beavis at all to what you're saying.

Do you think it would be better to try and relate it more to my case, or remove it?

QUOTE
In what way?

Sorry, not made myself too clear! Does the fact that they ignored my statement about their client failing to comply with PoFA 2012 mean anything to my case? I imagine that its just a standard reply and nothing more, but I was wondering on the off-chance that it could be used in my favour in court.
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