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Harbourgrand
Hi all, really grateful for any help with an ongoing parking ticket dispute.

The facts:

1. Received a Parking Charge notice, relating to not purchasing a ticket within the grace period. I was not the driver.

The evidence provided simply showed the time that the vehicle entered and exited the car park. No mention or evidence of when the ticket was purchased.

An all day parking ticket was purchased, I have the ticket and it is not time stamped and simply states the expiry time of 2359.

I replied to the PCN, inviting the company to cancel the charge as an all day ticket had been purchased. This was rejected.

2. I then appealed to the IAS, stating I was not the driver and that I have not been provided with any evidence to show that the terms and conditions were broken.

The appeal was rejected, with no explanation given and I did not pay.

3. Received a further “final demand for payment” which I ignored.

4. I have just received a Letter Before Claim from Gladstone solicitors that they have been instructed to commence legal action.

As suggested in this forum I have replied to acknowledge receipt of their letter, informing that I dispute the claim and have asked them to provide a compliant LBC.

Other - I have visited the parking site to view the sign with the terms and conditions and it has graffiti all over it so that it is illegible. I have a photo if this goes to court!

I suppose my question is am I going about this in the right way?

Thanks in advance!

kommando
Yes you have engaged with the claimant, their solicitors and used their not very independent appeal service so from a Judges point of view you have played it correctly. Our advice is never to appeal to the IPC, as you have found out they reject 85% of appeals regardless of their merits as its part of their agreement with the PPC's, water under the bridge now but remember that for next time.

This case has no merit on their side, but this will probably make no difference and a claim will be issued in the next few weeks, Gladstone's get paid whether they win or lose and its seen as a pressure tactic using the court system as a debt collector even though no debt exits and such a case will fail.

What were the grounds for the first appeals rejection from the PPC.

Also could we see the first NTK, to see if it met POFA 2012 for keeper liability. You have proof the fee was paid but if they also failed to achieve keeper liability its an extra defence as then they can only go after the driver.
Harbourgrand
Thanks kommando! The appeal was rejected because the ticket must be bought within 10 mins of entering the car park. Although I have not seen any evidence that shows the time the ticket was purchased. Below is the appeal rejection and the PCN.

Click to view attachmentClick to view attachment
ostell
That PCN is not POFA compliant and therefore there can be no keeper liability. Here's POFA. Great chunks of the must be there section of 9 (2) are missing and therefore no keeper liability. It could be on the back of the NTK, though I don't think so, so post that if you could.

You have redacted dates. When was the alleged breach and when was the NTK received.

First of all has the driver been identified? You have stated that you weren't driving can you provide some sort of proof, even a witness statement by someone else.

You write back to Gladstones and point out that their client has failed to comply with requirements of Schedule 4 of THe Protection of Fereedoms Act 2012 to hold you, the registered keeper of the car, liable for the actions of the driver at the time.

They have:
*Failed to give the warning required by 9 (2) (f)
*Failed to disclose the period of parking as required in 9 (2) (a). Moving in front of a camera is not parking.
*Failed to identify the creditor 9 (2) (h)


The registered keeper cannot be assumed to be the driver. If you intend to make use of Elliot v Loake to claim that this can be assumed then you must be aware that this was a criminal case that proved the keeper was the driver by the use of evidence, including forensic evidence. There was no assumption. You will also be aware this has been thrown out several times by the courts when used in parking cases. Also you may intend to use CPS v AJH films to make the keeper liable. This is also not relevant or applicable as there is no employer/employee relationship in existence.

I, the registered keeper, were not driving at the time and will provide proof of the same if required.

Payment was made at the daily rate so there cannot any loss to the client and this attempt to claim is no more than a penalty not saved by Beavis.

As there cannot possibly be a debt owed by the keeper continuing further action cannot possibly succeed and would be considered vexatious. When I, the keeper, prevail, I will ask the court for all my costs in this matter because of your unreasonable behaviour in continuing when you know there is no case.

Put your response on here first for critique before you send.

It needs to be sent to Gladstones but I would be tempted to copy HX with a covering letter pointing out that the costs claimed would need to be paid by them. This would be your time at £19 per hour, the allowed rate for a litigant in person, and all you postage and paper costs. Give them an estimate of the cost. It is probably more than they could possibly hope to get back, if they would get anything back at all.
Harbourgrand
Thank you Ostell! The back of the PCN is below.

The alleged breach was on 21/10/2017 with the notice issued on 27/10/2017

The driver has not been identified, I can easily prove that I was not the driver as I was on an aeroplane to Bahrain!

Click to view attachment
ostell
OK write that response to the claim, include a copy of your flight details, whatever you have and send it to Gladstones and HX (with the covering letter I suggested).

Let's see what you are going to write before you send. You could suggest a "drop hands" offer in that they stop any action and you do not claim costs.

Those POFA fails are the ones I spotted quickly, it may be worth sitting with paragraph 9 and see if you can see any other failures.
Harbourgrand
Ostell, I would be grateful if you could clarify a couple of bits for me.

9(2)f failed to give warning required.

The NTK mentions “ should the keeper either provide us with an unserviceable name and address or if the named driver denies they were the driver we may pursue the registered keeper for any parking charge amount that remains outstanding on the assumption that they were the driver”.

Is the wording they use not considered to be a warning or is the point that they cannot assume I was the driver?

9 (2)a The NTK only gives the time of entering and leaving the car park. Should my argument be they should have provided the time of parking and also the time of ticket purchase?

9 (2)h failure to identify the creditor. Am I right in thinking that HX car park management limited are just the land management company and the creditor would be the land owner which has not been given?

Many thanks again for your help!
Harbourgrand
Starter for 10, I have largely used your words ostell! Grateful for your feedback.

Dear Sir/Madam,

Further to my letter dated 12th July 2018. I, the registered keeper, were not driving at the time. I can prove that I was on a British Airways flight from London Heathrow to Bahrain, that departed London Heathrow at 1103z.

I wish to point out that your client HX Car Park Management Ltd has failed to comply with the Schedule 4 of the Protection of Freedoms Act 2012 (POFA) to hold me, the registered keeper of the car, liable for the actions of the driver at the time. The Parking Charge Notice (PCN) issued on 27th October 2017 is not POFA compliant and there can be no keeper liability.

The following areas are deficient:

9 (2) (f) - failed to give the warning required.

The registered keeper cannot be assumed to be the driver. If you intend to make use of Elliot v Loake to claim that this can be assumed, then you must be aware that this was a criminal case that proved the keeper was the driver by the use of evidence, including forensic evidence. There was no assumption. You will also be aware this has been thrown out several times by the courts when used in parking cases. Also you may intend to use CPS v AJH films to make the keeper liable. This is also not relevant or applicable as there is no employer/employee relationship in existence.

9 (2) (a) - failed to disclose the period of parking.
9 (2) © - failed to provide the facts that makes the charge payable.

The PCN lists only the time that the vehicle enters and leaves the car park. There has been no evidence provided to clarify the time in which the vehicle was parked or the time that a ticket was purchased. In addition, a ticket was purchased with payment made at the daily rate so there cannot be any loss to your client and this attempt to claim is no more than a penalty not saved by Beavis.

9 (2) (h) - failed to identify the creditor.

The PCN does not identify the creditor in any way.

As there cannot possibly be a debt owed by the keeper, continuing further action cannot possible succeed and would be considered vexatious. When I, the keeper, prevail, I will ask the court for all my costs in this matter because of your unreasonable behaviour in continuing when you know there is no case.
ostell
Slightly rearranged.

Further to my letter dated 12th July 2018. I, the registered keeper, were not driving at the time.

I wish to point out that your client HX Car Park Management Ltd has failed to comply with the Schedule 4 of the Protection of Freedoms Act 2012 (POFA) to hold me, the registered keeper of the car, liable for the actions of the driver at the time. The Parking Charge Notice (PCN) issued on 27th October 2017 is not POFA compliant and there can therefore be no keeper liability.

The following areas are deficient:

9 (2) (f) - failed to give the warning required.

9 (2) (a) - failed to disclose the period of parking.
The PCN lists only the time that the vehicle enters and leaves the car park, times when the car was moving and therefore not parked.

9 (2) © - failed to provide the facts that makes the charge payable.

9 (2) (h) - failed to identify the creditor.
The PCN does not identify the creditor in any way.

The driver made a payment at the daily rate, and I still have the ticket, and therefore therre has been no loss to your customer. The charge can only be a construed as a penalty that is not saved by Beavis.

The registered keeper cannot be assumed to be the driver. If you intend to make use of Elliot v Loake to claim that this can be assumed, then you must be aware that this was a criminal case that proved the keeper was the driver by the use of evidence, including forensic evidence. There was no assumption. You will also be aware, as these have been your cases, this argument has been thrown out several times by the courts when used in parking cases. I can prove that I was on a British Airways flight from London Heathrow to Bahrain, that departed London Heathrow at 1103z.

You may also intend to use CPS v AJH films to make the keeper liable. This is also not relevant, as you have found out in court for yourself, or applicable as there is no employer/employee relationship in existence.

As there cannot possibly be a debt owed by the keeper, continuing further action cannot possible succeed and would be considered vexatious. When I, the keeper, prevail, I will ask the court for all my costs in this matter because of your unreasonable behaviour in continuing when you know there is no case.
Harbourgrand
Thank you again ostell, will get this sent and put a copy to HX pointing out that any costs would need to paid by them!
ostell
No, when you write to HX list your costs. XX hours at the litigant in person rate of £19 per hour, loss of wages £59 (the court rate), travel xx miles at 45p, paper and postage. Just let them know it will be expensive for them because they will be also paying Gladstones and the representative in court as well.

I've made some small changes to the suggested letter to Gladstones.

Can you also send a copy of the parking ticket you have and also proof of you ebing on the flight. A ticket stub perhaps. No need top send these to HX.

After having had a night to think about it I would send a second letter to Gladstones, in the same envelope.

Dear Sirs,

Without Prejudice, save as to costs

re your customer HX Car Park Management and your Letter of the xxxxxx and my response, enclosed

As it has now been demonstrated that your client has no possible claim against me for any alleged debt and before further costs are incurred I am making a "drop hands" offer in that no further action will be taken by you and we will each meet our own costs that have been incurred to date.

I expect a response for you by xxxxxx (give them 10 days) otherwise I will understand that you are not in agreement and the offer will be considered withdrawn.

Yours..


All letters by first class post with Certificate of Posting from your local Post Office.


This would be an admirable case for a counterclaim to be put in place to stop them withdrawing at the last minute and allow you to reclaim costs for unreasonable behaviour. I can't think of a reason for the counterclaim though. Perhaps others may like to comment.
kommando
On the counterclaim you need to get your stall set-out now, by sending Ostell's letter from that point onwards they know their case has no merit (they knew before but now you have added non POFA 2012 keeper liability removing any doubt). So if they do not back off you start a case off with the ICO for breaching of the new GDPR regs, pre GDPR the ICO were as useful as a fart in a spacesuit but they may change tack with the new regs. With an ICO decision in your favour a counterclaim would be for misuse of personal data.
Harbourgrand
Thank you so much, really appreciate your help!
nosferatu1001
Loss of earnigns OR LEAVE is capped at £95, not £59 wink.gif
Harbourgrand
Would this be a suitable covering letter to HX?

Dear Sir/Madam,

Please find enclosed a copy of my response to the Letter Before Claim received from Gladstones Solicitors in relation to PCN Xxxx. You will see that you have failed to comply with the Protection of Freedoms Act 2012 (POFA) and the case clearly has no merit.

I would like to point out that if this claim is pursued further I will have no choice but to seek the following costs from you:

10 hours at the litigant in person rate of £19 per hour - £190.
Loss of earnings - £95
Postage and stationary costs. Currently £6.10.
Travel mileage at 45p per mile and any parking costs.

In addition, you will be required to pay your solicitors fees as well as their court representatives costs and I will lodge a complaint with the Information Commisioner’s Office (ICO) for a breach of DPA2018.
nosferatu1001
breach of DPA2018, which is what implements GDPR

Waaaay more than 5 hours. By the time it gets to ahearing you will have had a lot more research to do!
Harbourgrand
Thanks nosferatu1001, i’ve edited the above and will think even further on the hours of work!
Harbourgrand
So, I’ve finally received a response from Gladstone after following the advice given here.

They state they have provided a “fully complaint letter” (their spelling). They simply refer to the letter provided by the parking company where they rejected my appeal and advise that the fee of £160 is still due and that I should pay or reply within 30 days or it is likely that court proceedings will be issued.

Any advice on how I should proceed now?

Many thanks in advance!
nosferatu1001
Obviously
Respond back detailing all the ways they have not complied
POint out that as per.. they had 30 days to provide all the documetns you requested from them OR provide an explanation as to why they CANNOT do so. Stating documents were sent another time is not compliant

Remind them the intiial deadline of X still stands (or has it passed? 30 days from your response) and they have until 4pm on Y date to provide this response, else you will make a complaint to the Solicitrors Regulation Authority. As these documents must surely already be in their possession, at the time they took instruction, this shoudl be a trivial matter.
Harbourgrand
Thanks nosferatu, had a bit more time to look at this now so will get my response sent over the next couple of days.
nosferatu1001
Show us your resposne first.
Harbourgrand
Ok first draft! Grateful for any points/ feedback..

Dear Sirs,

Thank you for your letter ref xxx August.

In my letter dated xxx, I requested that you provide a Letter Before Claim (LBC) that complies with the requirements of the Practice Direction on Pre-action conduct. I am still not in possession of the above.

Your letter dated xx August makes reference to you having provided a “fully complaint letter”. I am unsure of what you are referring to, I have requested a fully compliant LBC of which you letter dated 4th July clearly is not.

As solicitors you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and your client, as a serial litigator of small claims, should likewise be aware of them). As you (and your client) must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is astounding that a firm of Solicitors are sending a consumer a vague and unevidenced 'Letter before Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol.

I require you to comply with its obligations by sending me the following information/documents:

1. an explanation of the cause of action
2. whether they are pursuing me as driver or keeper
3. a copy of the notice to keeper
4. whether they are relying on the provisions of Schedule 4 of POFA 2012
5. what the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated
6. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1
7. a plan showing where any signs were displayed
8. details of the signs displayed (size of sign, size of font, height at which displayed)
9. Provide details of the original charge, and detail any interest and administrative or other charges added.

In addition, your letter dated xxx makes reference to your clients appeal response dated Xx. My letter dated Xxx clearly shows your client had not complied with the Protection of Freedoms Act 2012 and in addition as the registered keeper I cannot be held liable for the actions of the driver at the time.

Please provide the following information within 7 days, as you should already be in possession of the relevant documents this should be a trivial matter. A refusal to comply with the Practice Direction will result in an immediate referral to the Solicitors Regulation Authority.


Is this letter explicit enough for them to provide me with all information they may rely upon?

Many thanks!
nosferatu1001
It is explicit enough
They still wont supply any info, as they dont HAVe the documents .

Instead of 7 days I would give them the original deadline - if it has already passed, then give them 7 days. (original deadline was 30 days from receipt of your response)
Harbourgrand
Thanks nosferatu, letter sent. The 30 days had passed so I stuck with 7 to provide the information.

Just out of interest do they tend to do from here?
nosferatu1001
So far we've seen claims filed, or nothing. There's no logic to it that I've seen
Harbourgrand
So after thinking this had maybe gone away I received a pack of information through from Gladstone’s this week. Almost three months after sending them my last letter requesting information.

Here are their letters in response to my last request.

Click to view attachmentClick to view attachment

So for my next steps....

Should I complaint to the Solicitors regulation authority for the delayed timeframe?

They are asking me to nominate if I was not the driver, although I have done this on a number of occasions now, should I just reiterate this to them?

The information they have provided is just a copy of information I have already seen and there is no evidence of the actual infringement (ie the claim that a ticket was not purchased within a set time period). Should I highlight this to them again?

Many thanks again for any help!
SchoolRunMum
QUOTE
They are asking me to nominate if I was not the driver, although I have done this on a number of occasions now, should I just reiterate this to them?
Yes but you need to understand what they are 'inviting' you to do. They want you to name the driver. You do not have to, and none of us would, because you can't be held liable by HX at all, as they don't use the POFA in their NTK. And because there was no 'relevant obligation' to purchase an all-day ticket within a certain time. The all-day ticket was purchased and the driver was not you, and you note that they have invited you to nominate the driver by name, but you know you do not have to do that, and no adverse inference can be drawn.

Nor does any lawful presumption exist that a keeper *was* likely to be the driver (that idea is codswallop). Google and get Henry Greenslade's words 'UNDERSTANDING KEEPER LIABILITY' from the POPLA Annual Report 2015 and repeat it to Gs to remind them of the legal position, and tell them Elliott v Loake has no application when the Defendant was NOT the driver, and they may as well save their postage if they were thinking of throwing that at you, or CPS Ltd v AJH Films which is also doomed.

QUOTE
The information they have provided is just a copy of information I have already seen and there is no evidence of the actual infringement (ie the claim that a ticket was not purchased within a set time period). Should I highlight this to them again?
Yes, ask for evidence of an actual contravention and terms on the sign.
Harbourgrand
Thank you SchoolRunMum!

So this is a draft of my response to Gs, again any feedback is greatly appreciated!

My letter dated Xxx provided my account of events, but I will restate for clarity. I was not the driver of the vehicle at the time of the alleged Breach of Contract and I provided evidence that I could not possibly have been the driver in the same letter to remove any doubt. I would like to remind you that the registered keeper cannot be assumed to be the driver. In addition you and your client have been provided a copy of an all day parking ticket, covering the parking period showing that your client cannot possibly have suffered any financial loss.

The evidence your client may rely upon should you continue with proceedings has been noted. I note that your client believes they are compliant with POFA 2012 despite me highlighting where they have been deficient. The registered keeper cannot be assumed to be the driver. If you intend to make use of Elliot v Loake to claim that this can be assumed, then you must be aware that this was a criminal case that proved the keeper was the driver by the use of evidence, including forensic evidence. There was no assumption. You will also be aware this has been thrown out several times by the courts when used in parking cases.

Despite my request in my letter dated Xxx, I am still not in possession of the details of any contravention; in particular where and when it is claimed the vehicle was parked, for how long and when a parking ticket was purchased. If your client has any further evidence on which they intend to rely, I again request you provide me with this this information.

As part of the provided evidence you have included electronic copies of the signage rather than realistic photographs of what is in use at the parking site. I have visited the site and taken photographic evidence of the entry signage. Your client states that the signage is clear, however on my visit the signage was heavily covered in graffiti and illegible. Please provide me with any photographic evidence you have that the signage on the day of the alleged Breach of Contract was clear.

I note that you have referenced your previous Letter Before Claim in my request for details of the claimed charge. This simply makes reference to £60 being claimed by your client. I would be grateful if you would elaborate as to the remaining fee.

Finally, you letter makes reference to an enclosed copy of the Annex 1 Information Sheet, the Reply Form and Standard Financial Statement. I am unable to locate this information, please could you resend as it does not seem to have been included in your correspondence.
Harbourgrand
The latest...

G’s have written back to me informing me that they have provided their clients bundle of documents and further commentary will not be forthcoming.

Can i assume that they have no other information or will now be unable to rely on any other information as it has not been provided?

My last letter to them requested further evidence of signage and also ticket purchase signs etc.

They have also provided a reply form, which seems like a pointless box ticking exercise that goes over much of the information that has been covered in my previous letters with them. Should I bother to engage or shall I just wait for them to issue their claim?

Finally, should I now start preparing for court action?

Thanks in advance for your help.
nosferatu1001
Well theyre unlikely to risk the courts ire by ambushing further
You of course point out in court that on X date you reqesuetd, for the Nth time, actual pictures of the signs in situ as opposed to computer renders of them, and the claimant refused.

The reply form is mostly box ticking, but on it you state you require all documents they intend to rely upon, including the contract to operate on the site. This is not a privilieged document, and must be shared now as you aver their client has no rights to offer parking contracts in their name, nor pursue the same to court. As the release of the contract will assist in narrowing the topics under dispute, a failure to release it means a failure not only in teh PAP for debt claims, but in the overriding objective. Unless G is in the habvit of starting the claim process without having sight of their clients documents, this will of course be to hand, so you expect them to provide this within the 30 days period mandated by the PAP.

Harbourgrand
Thanks nosferatu that’s really useful! I hadn’t thought much about the contract from the landowner.

This is my response for G’s, any feedback / suggestions would be much appreciated!

Dear Sirs,

Thank you for your letter dated Xxx. I note that despite my repeated attempts I still have not been provided information I have requested or been provided with an explanation of why this information is not available.

I have completed the required form for your consideration and elaborated below where required.

Box D. I dispute this debt.
No evidence of any contravention have been provided.
You client failed to provide a non-POFA compliant PCN, they cannot pursue me as the registered keeper. My letter dated xx 18 refers.
Your clients PCN states they may pursue the registered keeper on the assumption I was the driver. My letter dated xxx 18 provided evidence that I could not possibly have been the driver of the vehicle.

Box I. I need more documents or information.
Evidence of when and where on the site the vehicle parked.
PDT machine records from the day showing the time that the parking ticket was purchased.
Photographic evidence of the signage in use at the parking site.
A copy of your clients contract to operate the site as without you client has no right to offer parking contracts in their name, or pursue the same in court. The release of the contract is essential to narrowing the topics under dispute.
A breakdown of the original charge and detail any other charges added.
Any information not already provided on which you intend to rely upon.

As you a threatening to issue a claim against me, I’m sure the information is easily accessible and I remind you of your responsibilities under the Practice Direction and Protocol to provide this information within 30 days.
ostell
You client failed to provide a non-POFA compliant PCN, they cannot pursue me as the registered keeper. My letter dated xx 18 refers.
Harbourgrand
Doh! Thanks ostell!
nosferatu1001
"As the release of the contract will assist in narrowing the topics under dispute, a failure to release it means a failure not only in teh PAP for debt claims, but in the overriding objective."

The overriding objective is important to reference, as they can ignore the PAP, ignoring the first thing that G are told to do as solicitors isnt.
Harbourgrand
Change made, thanks again!
Harbourgrand
Hi again, so another letter from G’s

As expected no further information provided and its taken them almost 3 months to reply to my last request.

Click to view attachment
Click to view attachment

They have not provided the information requested previously.

I have been in touch with them for some time, I don’t know why they are now saying I allege not to have had any notice...

I provided evidence some months ago that I was not the driver. Now saying I have not provided proof.

Any suggestions on my next steps? Many thanks!
Redivi
You've left the Gladstones reference at the bottom of the letter

Dear Sir

Ref ****

Thank You for your belated reply to my response three months ago to your Letter Before Claim.
I refer you to the instructions of the Pre-Action Protocol Para 5.2 regarding the timescale for replies

It fails, however, to provide the information and documents that I requested and the information that you did provide is unsatisfactory.

I do not accept your reasoning that your client's contract with the land-owner is irrelevant
Your client's legal capacity is specifically addressed by its code of practice and your references to the short selling of shares and a disputed tenancy agreement are sophistry.
Your letter implies that your client's position is, in fact, that of the party that Lord Justice Levison describes as selling Buckingham Palace.

Regarding your invitation to consider Elliott v Loake, I am not used to being called a liar by a solicitor in the same paragraph that it misrepresents the significance of a criminal prosecution. If your client will not accept that an aircraft passenger six miles above Europe en route to Bahrain was not, on the balance of probabilities, also driving a car in ****, I fail to understand what evidence it will possibly accept.

You'll be telling me next that it's irrelevant that I still possess the parking ticket that the driver purchased and covers the full period of parking

For the avoidance of doubt, I will not pay this demand unless ordered to by a court
The only concession I will offer is "drop hands"
This offer will remain open for fourteen days from the date of this letter

After this date, I will record my time and costs that I will calculate at £19/hr for a Litigant in Person
In the event of a discontinued claim I will ask the court to have regard to CPR 27.14g regarding unreasonable behaviour

Do not contact me again unless to confirm that the case has been discontinued

Yours Faithfully



Harbourgrand
Thank you Redivi! Really appreciate your help, I have edited the letter to remove the reference and your words are exactly my thoughts.

Thanks again!!
Harbourgrand
Finally received a Claim Form from HX Car Park Management so this going to court! I have completed an acknowledgement of service to give me more time to put my defence together and will post my defence up here. I plan to use the suggestions on mse and other posts on this site to put my defence together. Can anyone suggest a good example of a defence I should follow?

Also, just out of interest I went past the car park where the alleged breach of contract took place and it is no longer managed by HX Car Park Management Ltd! Does this have any bearing as surely the car parking company are bringing the claim on behalf of the landowner??

Again really appreciate any help!

Harbourgrand
Anyone able to advise on this????

I went past the car park where the alleged breach of contract took place and it is no longer managed by HX Car Park Management Ltd! Does this have any bearing as surely the car parking company are bringing the claim on behalf of the landowner??
ManxRed
They will most likely claim that their contract at the time of the incident allowed them to bring an action against a transgressor in their own name, meaning that they are not actually claiming on behalf of the landowner/landholder.

I'd be asking to see the relevant part of their contract that proves this. They can redact the commercially sensitive bits. No reason why they cannot share this, although they'll resist.
Harbourgrand
Thanks ManxRed! Is this something that could sit within one of my line of defence?
Redivi
You refer to the code of practice that the claimant must have authority from the land-owner to issue the claim, and put the company to proof
Harbourgrand
Thanks redivi!!

Here is my draft defence, grateful if anyone can give me any feedback or suggestions on how it can be inproved:

1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged breach of contract, when parking at Xxx

2. Any breach is denied, no evidence of a breach has been provided despite numerous requests and the defendant is in possession of an all day parking ticket amply covering the period of parking to which the claim relates.

3. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper 'not purchasing a ticket in the grace period'. The Claimant is put to strict proof of any breach and the reasoning for the charge.

4. The Defendant was not the driver of the vehicle. On the day in question the defendant was xxx on a flight from London Heathrow to Bahrain.

5. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice failed to comply with the statutory wording and provide the information required by the POFA. Any non-compliance voids any right to ‘keeper liability’.

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. A recent visit to the car park shows that the claimant is no longer the operator of the car park.

7. The Claimant has also failed to follow the Code of Practice (CoP) of their Trade Body, with regards clear signage, grace periods and their requirements in dealing with the keeper of the vehicle. The Supreme Court Judges in the Beavis case held that such a CoP is effectively 'regulation' full compliance with which is both expected and binding upon any parking operator.

8. If the Defendant is found to be liable under the POFA 2012, that law only permits a claimant to recover no more than the sum stated on the PCN. It is submitted that the added fee of £60 are an attempt at double recovery by the Claimant, which would not be recoverable in any event and is an abuse of the process.

9. In addition the sum of £50 for legal representatives costs are denied by CPR27.14 and are again an abuse of the process.

10. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. The defendant is keeping a note of wasted time and costs so far in dealing with this matter, with a view to claiming the loss to the defendant of at least half a day's work, and travel/parking costs and any other expenses for attending any hearing as witness for the Defendant.
nosferatu1001
You have two 8s.

9) You hsould state that attempting to claim sums to which they are not entitled is an abuse of process and you ask the court to applythe usual sancitojn, which is to strike the claim entirely
I would then say that the sums theyre claiming - I assume they've tacked on legal fees theyre not allowed to, or debt recovery theyve never paid - are sums they know they cannot claim (legal fees are denied by CPR27.14, debt recovery ifnot pad is not a debt theyve incurred) and so, additionally this is an abuse of process. basically 2 different abuse of process
Harbourgrand
Thanks nosferatu, will have a good check of all formating when I've got my points right! Thanks for the feedback, they are asking for legal representatives costs as well as statutory interest and court fees.

I have updated the defence above, do you think it is detailed enough at this stage?

nosferatu1001
Court fees - of course ok
Interest - if calculated correctly this is OK. "correctly" would mean from when any debt accrues - whcih is not on the date of alleged contravention but usually 28 days after. They usually just calc from date of alleged contravention.

Legal rep costs - the ONLY cost they can claim is £50 to *file* the claim. If they are claiming any other costs for "legal" then, as told, read CPR27.14 and see what it states about small claims track and legal costs.

Dont just update. It sucks. Start in a new post. Highlight changes in red so we can see.

Harbourgrand
Thanks Nosferatu, as suggested some changes below. I have left off the argument for legal rep costs as I guess this simply relates to their cost to file the claim. I have added an item about their interest charge as they failed to reply within the timescales required by the pre-action protocol. I also cannot understand their calculation for the interest costs as it’s doesn’t add up so have not commented further!

Again grateful for any feedback or suggestions.


1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged breach of contract, when parking at Xxx

2. Any breach is denied, no evidence of a breach has been provided by the claimant, despite numerous requests and the defendant is in possession of an all day parking ticket amply covering the period of parking to which the claim relates.

3. The allegation appears to be based on images by an ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper 'not purchasing a ticket in the grace period'. The Claimant is put to strict proof of any breach and the reasoning for the charge.

4. The Defendant was not the driver of the vehicle. On the day in question the defendant was xxx on a flight from London Heathrow to Bahrain.

5. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice failed to give the warning required and provide the information required by the POFA. Any non-compliance voids any right to ‘keeper liability’.

6. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. A recent visit to the car park shows that the claimant is no longer the operator of the car park.

7. The Claimant has also failed to follow the Code of Practice (CoP) of their Trade Body, with regards clear signage, grace periods and their requirements in dealing with the keeper of the vehicle. The Supreme Court Judges in the Beavis case held that such a CoP is effectively 'regulation' full compliance with which is both expected and binding upon any parking operator.

8. If the Defendant is found to be liable under the POFA 2012, that law only permits a claimant to recover no more than the sum stated on the PCN. It is submitted that the added fee of £60 is not mentioned in the PCN terms and conditions and are an attempt at double recovery by the Claimant, which would not be recoverable in any event and is an abuse of the process.

9. In addition interest claimed by the Claimant is disputed as the claimant has failed to comply with the timescales and requirements of the Pre-Action Protocol.

10. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. The defendant is keeping a note of wasted time and costs so far in dealing with this matter, with a view to claiming the loss to the defendant of at least half a day's work, and travel/parking costs and any other expenses for attending any hearing as witness for the Defendant.
nosferatu1001
8 - no. You need two arguments for abuse of process.

1) The max sum that they can claim under POFA2012 is the amount ON THE PCN. No more than that is allowed. Presumably this is £100. So this isn abuse - theyre claiming a sum they are not entitled to. Dont call it double recovery. There are no "terms and conditions" on the PCN Notice to Keeper, T&C would be on th esigns. So dont mix terms up - it is confusing to the reader.
2) The £60 which I presume is called "debt collection" was never incurred by the claimant, as the debt recovery offers "no collection no fee", and so they are claiming a sum they are not entitled to and...

9) Why is this disputed? I dont understand. It certainly isnt the reason I gave you to normally dispute the interest, which is that they calc it from day 1 instead of at least 28 days later.

10) Have they EVER said the £60 was "legal service"? or anything similar? You have the documents, we dont, check back. NOT just the claim form - *everything*.

11) I dont get the final bit of this. You ARE the defendant, you are not a "witness for" the defendant - thats a nonsense. You can always claim costs of attending the hearing, loss of pay or leave is capped at £95 (yes i mean capped, you can earn £20,000 a half day, you get £95) plus mileage and parking. You can claim costs at £19 per hour ONLY IF you show they have been unreasonable, but including a costs schedule at Witness STatement stage.
Harbourgrand
Thank you again for the quick reply! I will update the defence later, here is a litle more information on the points you raise.

You are correct the amount claimed on the PCN is for £100. On the claim form in the particulars of the claim they claim "£60 for contractual costs pursuant to the contract and PCN terms and conditions". I looked through the t&c's from the signage and its not mentioned anywhere, which is why I worded it in that way. In their original LBC they claim the £60 is claimed by the client for its time spent and resource facilitating the recovery of the charge. I will amend the wording as per your suggestion.

Interest - I calculated what the interest charge would be from the date of the ticket and 28 days after, up to the issue date of the county court claim form. Neither add up to what they are claiming (they are claiming 8% per annum, continuing at £0.04 per day) Their claimed amount is actually less?! The reason I put that it is disputed is because firstly it doesn't add up and in addition they have not provided requested information hence lengtheing the process and during the process have not adhered to the timescales of the PAP.

Last point is completely my mistake, thank you for pointing out the error.

Again grateful for any points or suggestions.

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