Here's the defence I drafted. The D was an ex-employee so you may need to tinker with bits of it if you are still employed (eg para 10 where she says she recalls what the signage said - although of course in your case the event was so long ago (so you'd still have to try to recall what it said), paras 11 and 20.6 re whether signage identified Excel or VCS, paras 15 and 20.7 where it is made clear that her permit had fallen but was still visible on the dashboard, not sure if this applies to you).
IN THE COUNTY COURT BUSINESS CENTRE CLAIM NO:
B E T W E E N:-
EXCEL PARKING SERVICES LTD
Claimant
and
xxxxx
Defendant
_______________________________
DEFENCE
_______________________________
1. The Defendant admits that [s]he was the driver of a xxxxx, registration number xxxx on the relevant date.
2. The Defendant denies that [s]he is liable for the entirety of the Claim for the reasons set out below.
3. No contract was entered into between the Claimant and the Defendant.
4. The Defendant did enter into a contract for parking, but it was with [his/her] employer and not the Claimant, as follows:
4.1 On xxxx the Claimant entered into an agreement with [his/her] employer Admiral Plc (“Admiral”) by which Admiral granted [him/her] the right to park in its staff car park in return for a payment of £50 per calendar month (“the Agreement");
4.2 The terms of the Agreement were set out in a written document which the Defendant signed on the same date (“the Contract”)
4.3 The Contract recorded and contained all of the terms of the Agreement. Inter alia, it contained “conditions of parking” which referred to a “car-parking card” which would be given to the Defendant. No terms other than those set out in the Contract formed part of the Agreement between the Defendant and Admiral
5. The Defendant believes that at the relevant time the Claimant may have been a party to a contract with Admiral by which the Claimant agreed to provide car parking spaces for Admiral’s staff and to manage the use of those spaces in order to prevent unauthorized parking and by which Admiral agreed to pay the Claimant. However, the Defendant does not know whether it was the Claimant or another company which was a party to that contract, nor does [s]he know the terms of that contract and the rights granted to the Claimant by it. The Defendant puts the Claimant to full proof of the contract and its terms.
6. The Defendant did not enter into any contract with the Claimant in relation to the exercise of [his/her] rights to park under the Agreement and the Contract, or in relation to any other matter, and the Claimant therefore has no cause of action against the Defendant.
7. The Defendant cannot have entered into any contract with the Claimant, because the Claimant cannot have made any offer of parking to [him/her] – [s]he already had the right to park by virtue of the Agreement and Contract with Admiral. To the extent that any offer was made by the Claimant, the Defendant did not accept it. Furthermore, no consideration flowed between the Claimant and Defendant (the Defendant already having the parking rights, for which [s]he had agreed to, and did, pay Admiral.
8. The Defendant admits that [s]he was given a piece of paper containing the Claimant’s “terms and conditions” for the use of Admiral’s staff car park, along with a permit (the “car-parking card” referred to in the Contract) and a permit disc holder. This was given to [him/her] by a member of Admiral's Facilities Department after [s]he had entered into the Agreement with Admiral and signed the Contract. When [s]he was given the Claimant’s terms and conditions, the Defendant had already acquired the right to park in the staff car park, subject only to the terms set out in the Contract. Therefore, the terms and conditions cannot have formed part of that Agreement/Contract. Neither can the Defendant have entered into any further contract with the Claimant because there was no offer made, no acceptance of any offer and no consideration flowed between the Claimant and the Defendant. The terms and conditions did not therefore bind the Defendant.
9. The Claimant’s terms and conditions required the permit to be displayed in a highly prescribed manner on the windscreen of the car using a “permit disc holder” which was stated as provided with the terms and conditions. The Defendant was provided with this disc holder by Admiral at the same time as the terms and conditions (in other words, after the Agreement had been entered into and the Contract signed). It is admitted that the Defendant used the permit disc holder, but [s]he did so purely because it was a convenient method of displaying her permit and keeping it safe, and not because of any obligation to do so.
10. It is admitted that the car park contained a sign or signs which the Defendant recalls stated that it was to be used only by permit-holders/authorized users and a warning that unauthorized users would be charged £100. It is denied that such signage made any offer to the Defendant, because its wording forbade parking for those not displaying a permit, rather than offering it, and those who had permits were already authorized by Admiral to park there. In the alternative, the signage did not make an offer which was capable of acceptance because it was cluttered, in small lettering (particularly the reference to the £100 charge) and the terms of any offer were unclear. The Claimant’s intention was not to make a genuine offer, the main purpose of the wording was to deter unauthorized parking by attempting to impose a penalty upon those who did not have a permit.
11. To the extent that the signage made an offer, the Defendant did not accept it because [s]he was already entitled to park in the car park, and [s]he took the warning in the signage to apply only to unauthorized users – it was clear to [him/her] that the sign was intended as a deterrent. The Defendant also recalls that such signage was, however, not in the name of the Claimant, but another company (Vehicle Control Services Ltd) and puts the Claimant to full proof of the signage.
12. It is denied that the Defendant was obliged by the Agreement or the Contract, nor by any contract with the Claimant, to display the permit in the manner prescribed in the Claimant’s terms and conditions, or its signage, or at all. Nor was the Defendant obliged to pay a charge for failing to display the permit (either to Admiral or to the Claimant or any other entity). At no time did the Defendant accept the Claimant’s terms and conditions or any offer made by the signage and, as stated above, [s]he used the permit disc holder to display the permit only for [his/her] own convenience
13. To the extent that any offer was made by the Claimant, the Defendant did not accept it by parking, and no consideration flowed, because [s]he was already entitled to park in the staff car park.
14. The Defendant was required by Admiral to provide [his/her] car registration number when [s]he signed the Contract, and therefore had a reasonable belief that if there was any issue over the authenticity of her permit, or the manner in which it was displayed, or if there was any other issue relating to [his/her] use of the staff car park, Admiral and/or the Claimant would be able to establish that [his/her] car belonged to a permit-holder authorized by Admiral to use the staff car park
15. In the alternative, should it be determined that the Defendant did enter into a contract with the Claimant, the terms of which were set out in the Claimant’s terms and conditions, the Defendant denies that [s]he breached its terms because [s]he displayed the permit at all times and used reasonable endeavors to do so in the manner required by the Claimant’s terms and conditions (namely by using the permit disc holder). It was the Claimant which made it impossible for the Defendant to fully comply with those obligations because the permit disc holder it had supplied was not fit for purpose, therefore frustrating any contract (or this element of it). It must have been an implied term of any such contract that the permit disc holder, which the Defendant was required to use to display her permit, was fit for purpose and that the Defendant could rely on it to remain stuck to the windscreen when she was away from the vehicle. Alternatively, the court has the power to impute such a term to the contract in order to give it efficacy. The Claimant breached this implied term by providing a permit disc holder which came away from the windscreen, with no prior warning, when the car was parked and the Defendant was not in it. On the date in question, the Defendant left her vehicle parked with the permit disc holder affixed to the left hand side of the windscreen (with the permit in it). However, at some time after [s]he had left the vehicle, the permit disc holder fell off the windscreen and landed on the dashboard, where it remained until [s]he returned to the car at the end of the working day. Throughout the period of parking, the permit was, however, clearly visible through the windscreen because it could be seen in the permit disc holder lying face up on the dashboard. It would have been visible to the attendant who issued the parking charge notice.
16. In the alternative, should it be determined that the Defendant entered into a contract with the Claimant and that s[]he did breach its terms, the Claimant’s terms and conditions failed to define what the amount of any “parking charge” would be, and this term must therefore be void for uncertainty. It is accepted that a “parking charge” of £100 was identified on the signage in the car park. However, the signage cannot have formed part of any contract which may have been created between the Claimant and the Defendant by the terms and conditions. The terms of the contract have to be clear at the time the contract is made. Terms cannot be added later, other than by way of a collateral or new contract – both contracts require an offer, acceptance and consideration. If a contract was formed, then it was formed when the terms and conditions and the permit were given to the Defendant, and not later when [s]he started to use the car park and read the signs.
17. Should it be determined that the Claimant’s signage was capable of making an offer, such offer was not accepted by the Defendant, and there can have been no consideration, because [s]he had already been granted parking rights in the staff car park by Admiral (for which [s]he was paying £50 per calendar month) and the Claimant was already obliged to provide car parking spaces pursuant to its contract with Admiral.
18. Alternatively, should it be determined that the Defendant did enter into a contract with the Defendant, the terms of which were set out in the Claimant’s signage (as opposed to its terms and conditions), the Defendant denies that [s]he breached its terms because she displayed the permit at all times in the front windscreen of her car, as required by the signage. Furthermore, as an onerous contractual term, special attention should have been drawn to the requirement to pay £100, but it was not and, again, it is therefore void (
Thornton v Shoe LaneParking Ltd [1970] EWCA Civ 2)).
19. The Defendant believes that the Claimant has already been remunerated for providing and managing the spaces in the Admiral staff car park, and that the £100 charge (to which unspecified charges of £54 have been inexplicably added) is an unrecoverable penalty which is unenforceable and is an unfair term contrary to the Consumer Rights Act 2015. The Claim is distinguished from the facts in the case of
ParkingEye Ltd v Beavis: in that case, it was agreed that there was a contract between the driver and the Claimant, formed by prominent signage at the entrance to a car park which made a clear offer; the case turned on a unique set of facts regarding the location and interest of the landowner; strict compliance with the Claimant’s Code of Practice was paramount; the site was a retail park and there was a free parking licence offered; there was a “legitimate interest” in the contract/parking charges being enforced so that visitors did not overstay the two hour free period in the retail park so as to ensure a turnover of visitors to the retail units; there was a complex contractual arrangement by which the Claimant was not paid by the landowner and therefore had to make an income out of the management of the car parking. All of this together disengaged the “penalty rule”. None of those facts apply in this case - the charges claimed are quite clearly a penalty and are not recoverable. In addition, the Claimant’s compliance with its binding ATA AOS Code of Practice was deemed to be paramount in the
Beavis case, whereas in this case the Claimant has breached its Code of Practice in several important respects. Compliance with the Code of Practice is a mandatory term and a condition of membership.
20. The Defendant puts the Claimant to full proof of all aspects of its claim, including:
20.1 Its contractual right, granted by the landowner or lawful occupier of the land, to manage the car park where the Defendant was parked on the relevant date, to issue charges to vehicles and to pursue court proceedings in respect of such charges;
20.2 Its contractual right, granted by the landowner or lawful occupier of the land, to issue charges to vehicles parked by permit-holders (and therefore authorized by the landowner/lawful occupier to park there) and to pursue court proceedings in respect of such charges
20.3 The creation of a contract with the Defendant by either the terms and conditions or by the Claimant’s signage or by any other means, and the terms of such contract;
20.4 The manner in which the Defendant has breached such contract;
20.5 The loss suffered by the Claimant as a result of any breach(es);
20.6 The signage displayed in the car park (the Defendant believes that the signage did not identify the Claimant, but another company known as Vehicle Control Services Limited – certainly this company is identified on the signage displayed in the adjoining Admiral car park), including the size of any signage, its location and height and any entrance signage;
20.7 [His/Her] alleged failure to display [his/her] permit – the Defendant requires all photographs taken by the Claimant’s operative (some of which [s]he believes were taken from such an angle as to deliberately obscure the Permit on the dashboard of the vehicle);
20.8 The unfit for purpose permit disc holder – the Defendant puts the Claimant to proof of how many of its charges have been defended or appealed by other drivers who were authorized users of the car park but whose permit disc holder had likewise fallen from the car windscreen.
21. The Defendant also challenges the addition of [£54] in “contractual costs” and the interest of [£xxx]. The Claimant is put to full proof of the contractual term entitling it to add charges of [£54] to the sum claimed. In respect of the interest claimed, the court should not exercise its discretion to award interest where the Claimant has delayed by [x] years in bringing these proceedings.
Data Protection Act breach and Trespass
22. For the reasons set out above, the parking charge which is the subject of these proceedings is invalid. The Claimant therefore had no right to request the keeper’s details from the DVLA and to use, process and retain them, and has breached the Defendant’s rights under the Data Protection Act by doing so
. Vidal-Hall v Google Inc [2014] EWHC 13 (QB) is authority that misuse of personal data is a tort.
Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 is authority that a reasonable sum of compensation would be £750.
23. The Claimant had no authority to place a parking charge notice on the Defendant’s vehicle and in doing so committed a trespass.
23. The Defendant specifically reserves [his/her] rights in respect of these matters
DATED THIS TH DAY OF 2017
Statement of Truth
I believe that the facts stated in this Defence are true
Signed …………………………………….
Dated .......................
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