Northampton CCBC Claim Form

Coupon-mad

Should all be fun then - and as I say I think zzzLazyDaisy has explained before you can ask for a Disclosure Order after you've submitted a defence and before a hearing. Force them to show all Notices and the Contract with the landowner...etc.!

Ed666_2

Ok, I hope I've got everything from the previous points, this is the entire thing:

Claim Number XXXXXXXX

Defence :

It is the defendant's case that the claimant has no cause of action against the defendant. Before POFA 2012, registered keeper liability did not apply and cannot be applied retrospectively. SIP have the wrong defendant and should have identified the driver at the time if they wanted to allege a contract existed.
The defendant believes that the claimant is pursuing what amounts to a Penalty and not a genuine accounted loss for damages or trespass.
That any alleged losses or costs they may account for would not have been altered, diminished or increased by the presence of the vehicle as they are operation running costs associated directly with a businesses.

The Claimant has also failed to demonstrate they have contractual authority with the actual owner of the land in question to bring legal proceedings and I ask the court to explore if the necessary right of audience exists in relation to the contract and representations of the land owner in court by the claimant .

Accordingly the defendant respectfully requests the court to list this case for a Preliminary Hearing to consider the defendant's application for an Order striking out the claimant's claim.


The case for defence is expanded further below.

1. The Defendant denies he is indebted to the Claimant in any way.

2. The Claimant has not identified the driver of the vehicle and has made reference to pursuing me under the Protection of Freedoms Act 2012. As the PCN was issued before the Protection of Freedoms Act 2012 entered into law, it would not be subject to this Act, and is therefore a misrepresentation. This is currently the subject of an investigation by the British Parking Association. As such, their Notices were in clear breach of the CPUTR 2008 since they claimed their charge was supported by statute, when it was not. It is an offence to mislead a consumer so that they would be likely to be persuaded to make a different financial decision than they might have done otherwise - the Notices were prejudicial to the recipient, whether or not the keeper actually paid.
The British Parking association Code of Conduct which applied at the time says in Clause 13.1a that the Notice to Owner (NTO) must be sent out no later than 28 days after receiving the vehicle data from the DVLA. This is in addition to the time allowed to pay before action is taken (seven days according to the Parking Charge Notice) plus time to receive the vehicle data. As the NTO was sent on xx/3/13, this is almost seven months after the PCN was issued, and therefore exceeds the time allowed to take action. In addition, the date of the final notice is only 19 days after the date of the NTO, which would not have allowed sufficient time to reply.

3. The letter sent on xxxxxx 2103 by the Claimant was defective and did not comply with Annex A Section 2 of the Practice Direction on Pre-Action Conduct in a number of ways, as a “Letter Before Action” including:
•Failure to mention the Practice Direction itself and draw attention to para 4 concerning sanctions for failure to comply with the Practice Direction
•Failure to give the Claimant’s full name and address
•Failure to state clearly the basis on which the claim is made (i.e. why the claimant says the defendant is liable);
•Failure to explain how if financial loss is claimed the amount claimed has been calculated
•Failure to list the essential documents on which the Claimant intends to rely
•Failure to set out the form of Alternative Dispute Resolution that the Claimant considers most suitable and invite me as defendant to agree to
This letter was obviously sent to intimidate me into paying a speculative charge and not sent with a view to reaching an agreement, in particular as I could not identify it as a “Letter Before Action”.

4. If the charge is supposed to be a penalty for “breach of contract” the penalty of £100 is an unenforceable penalty clause. Following Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915], clauses designed to punish a party for breach of contract may only be upheld if they represent a genuine pre-estimate of loss. The original PCN shows four different levels of charge if payment is made within different time periods, as follows:
Within 24 Hours - £35
Within 7 days - £70
Within 8-28 days - £90
After 28 days - £117
As any loss incurred would not have changed irrespective of the length of time within which payment is made, this shows that the charge was in fact a penalty.

5. The initial charge of £100 is a penalty, not a genuine pre-estimate of loss since the Claimant is not the landowner and has suffered no loss.
See References 1 – 9 in Appendix 1 : Court References in support of Points 4 and 5 above

6. British Parking Association Ltd. code of practice v3 section 7.1 requires the Claimant to have a contract with the landowner : The Claimant has not provided any evidence and more specifically in section. 7.2 f whether or not the landowner authorises them to take legal action to recover charges due from drivers charged for unauthorised parking.

The Office of Fair Trading, in contact with the BPA last year, stated that a court would need to be satisfied that the same legal entity (company) has lodged the small claim as:
-was the AOS listed member
-had the contract with the landowner
-was named on signage
-had their name on all letters & documents about this 'charge'.

In correspondence the company been identified “Stop Illegal Parking” (PCN & Important Final Notice), “SIP Car Parks Limited” (Charge Notice), and “SIP Parking Limited” (Final Notice)



7. Signage:
In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance, the elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late
SIP does not provide signage of sufficient written text size or at a suitable height to be read from the vehicle at the entrance or at any location on the premises. They may claim that generic signage is displayed around the car park on poles but this does not meet the requirements for consideration when forming the alleged contract. I suggest SIP need clear signs and means for a driver to read the full terms and to make payment with a machine at the entrance to the car park if they wish to try to establish a contract requiring payment in exchange for a parking space here.

8. BREACH OF UTCCR 1999
Finally, I believe SIP are in breach of the Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):

Schedule 2, paragraph 1:
...terms may be unfair if they have the object or effect of:

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

Unfair Terms
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.


And from the Office of Fair Trading, Unfair Contract Terms Guidance:

''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Group 18(a): Allowing the supplier to impose unfair financial burdens
18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract...

Group 18(h): Unreasonable ancillary obligations and restrictions
18.8.1 There is a clear risk of unfairness where terms put consumers at risk of incurring contractual penalties that are more severe than is necessary to protect the real interest of the supplier. This form of unfairness most obviously arises where a term provides for an excessive penalty...

Group 19: Regulation 7 – plain and intelligible language
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.

Appendix 1 : Court References
Ref 1
In Aintree University Hospitals NHS Foundation Trust v. Paul Helmn (20th August 2010) the claimant tried to claim £50 from Mr Helmn for parking in a disabled bay in the hospital car park without displaying a blue badge. The judge found that the sum was a contractual penalty was not a genuine pre-estimate of loss; therefore unenforceable.
Ref 2
In Aintree University Hospitals NHS Foundation Trust v. William Forshaw (6th June 2011) the judge stated: “Only the police and local councils can issue parking tickets in the normal sense of the word; landowners, on the other hand, rely on contract law. Therefore, some landowners put up signage when you enter their property, saying that you have entered into a contract with them, and that you must park in a certain way or in certain places. If you do not, the contract you have entered into states that you have to pay a sum, as per that stated in the contract. This is where it gets interesting. Case law dating back 100 years or more stating that if the sum of money demanded is more than the losses that the landowner has suffered, then it is considered a contractual penalty, and is therefore unenforceable. In other words the landowner can claim for genuine pre-liquidated losses, not demand a penalty on event of a contractual breach. For example, if the cost of parking is £2, which a motorist does not pay, then the landowner can make a claim for that £2, not for a £50 ‘charge’, even if this is on the signage, as £50 would constitute a penalty, which then becomes unenforceable”.

Ref 3
Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd Lord Dunedin offered as tests which might prove "helpful, or even conclusive":

"(A) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach..….

(B) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid ….. This though one of the most ancient instances is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A. promised to pay B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable ….. is probably more interesting than material.

( C) There is a presumption (but no more) that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

Ref 4
- Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G,
discussing Dunlop:
"whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."
Ref 5

- Excel Parking Services v Hetherington-Jakeman, Mansfield County Court, March 2008.
“I have already decided that the charges are not recoverable anyway, but it is important I think for me to say whether I think it is a penalty, and I think it is a penalty. It seems to me that it is not a pre-estimate of damages. It is a payment of a sum of money that is intended to effectively frighten or intimidate someone into making a payment promptly. It is a figure that is far beyond any costs that could realistically or reasonably be incurred by the claimants in trying to run this system.”
Ref 6

- In OBServices Parking Consultancy Ltd vs Thirlow 10th February 2011 (on appeal) the Circuit Judge ruled:
- the sum amounted to an unenforceable penalty clause
- no loss caused by breach of contract
- common discount reinforced lack of pre-estimate of loss

Ref 7

- In UKCPS Ltd v Murphy (10th April 2012) it was found that the sum claimed for failing to display a blue badge whilst parking in a disabled bay in Deepdale Retail Park in Preston was in fact a contractual penalty and that UKCPS suffered no loss from the alleged breach of contract.

Ref 8
This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946.
"whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."
Ref 9
At the Parking Eye v Smith (Manchester County Court December 2011) hearing the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.

Coupon-mad

'Before POFA 2012' = 'Before the Protection of Freedoms Act 2012 took effect on 1st October 2012'

For Acts and case law, put them in full and in italics. And spell it out for the court (hence the Oct 2012 date so the judge doesn't have to look it up!).

And the OFT didn't quite say it as quoted (see here) so maybe change to:

'The Office of Fair Trading, in contact with the BPA last year about private parking charges, expressed the view that the court will need to be satisfied about who the consumer was contracting with and that this is the party bringing proceedings. In this case, the Defendant is not satisfied that the same legal entity has lodged the small claim as:
-was the AOS listed member
-had the contract with the landowner
-was named on signage
-had their name on all letters & documents about this 'charge'.

In correspondence the company been identified “Stop Illegal Parking” (PCN & Important Final Notice), “SIP Car Parks Limited” (Charge Notice), and “SIP Parking Limited” (Final Notice).

And in any case the Defendant asserts that the Claimant has no right nor cause to bring proceedings as they are a mere agent of the landowner... {here mention Parking Eye v Sharma 23rd October 2013}

Ed666_2

Quick question if anyone's still around. I've gone to submit my defence, and the box will only allow 122 lines. My full defence is 250 lines. I believe I can submit it via e-mail, what should I do about submitting a defence on the website? Paste some of it, leave blank, or write on that I have provided it via e-mail?

Coupon-mad

Remove the 'padding & detail' under some headings, or remove the Court references and say 'the Court refs I intend to rely upon are sent with my full defence by email'.

Ed666_2

Thanks, I had to trim it down quite a bit, but I have e-mailed the full version and images to the e-mail address.

Thanks for all the assistance.

Ed666_2

Spoke too soon, got an e-mail back saying all the files had been stripped out because some file types aren't allowed! Anyone had experience of sending files to them? Do they need to be zipped or something? Thought I'd ask before trying some other stuff, or I'll be spamming them. lol

Coupon-mad

No idea, sorry.

Ed666_2

No problem, tried sending it as a zip, and it didn't come back with an error this time, so I guess it's gone through. Thanks.

zzzLazyDaisy

I suggest sending a paper copy to N'hampton CC by snail mail, to be safe.