PPS - POPLA Appeal

Coupon-mad

I would put the sentences about the signs into the past tense (because those signs can't be there now, as PPS jumped ship to the IPC, some 2 years ago).

And also think about whether you will defend this as registered keeper, and talk about 'no keeper liability' (non POFA wording).

I thought of this one which is about a £4 tariff not being paid due to unclear signs, and it uses Beavis case quotes, etc:

https://forums.moneysavingexpert.com/discussion/comment/74850073#Comment_74850073

Anything in there you can use, please do.

Also, look at the defence in Matilda13's thread, as that's a recent PPS one.

DevonChap

Thank Coupon-Mad

I've changed the signs to past tense

In response to my letter after the Letter Before Claim, BW Legal confirmed that PSS are pursuing the claim as "Registered Keeper" - so I have included the "No Keeper Liability" defence.

I have looked at Matilda13's defence, and your comments regarding the £4 charge, and added the comments ref Bevis.

Note - I offered to pay the £4 in my first appeal directly to PPS, and they didn't accept it. I did pay it in response to their letter before claim, where they kindly provided a bank account! - I said this was in "Full and Final Payment" in respect to their claim.

Here is the latest version - Any comments welcome

Cheers



IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Premier Parking Solutions LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in the car park stated and had purchased and displayed a ticket.

3. The Particulars of Claim give no indication as to why a PCN was issued. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. After receiving a letter before court action the Defendant requested the following information from the claimant, which has not been received:-
i) A copy of the contract. ie photographs of the signs on which the claimant relies.
ii) A plan showing where any signs were displayed
iii) Details of the signs displayed (size of sign, size of font, height at which displayed, and full details of the lighting used with respect to each sign)
iv) The contract between the Landowner and PPS

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
6. The Claimant has confirmed that they are pursuing the Defendant as the registered keeper of the vehicle. The Protection of Freedoms Act 2012 Schedule 4 (the POFA) has not been complied with. The registered keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of charge and prescribed Notice to Keeper letters in time/with mandatory wording.

7. Further and in the alternative, it is denied that the claimant's signage set out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

8. The terms on the Claimant's signage were also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage was capable of creating a legally binding contract.

9. The terms on the Claimant's signage were also unlit. It is, therefore, denied that the Claimant's signage was capable of creating a legally binding contract during periods of darkness.

The British Parking Association ("BPA") Code of Practice sets the requirements for entrance sings. The following requirements are mandatory:
(a) The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.
(b) Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement takes places at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retroreflective material similar to that used on public roads and described in the Traffic Signs Manual.

10. The claimant’s signage also contained differing terms and conditions at different locations within the car park. It is therefore denied that the Claimant’s signage is capable of creating a legally binding contract.

11. The claimants signage was misleading and therefore it is claimed that the contract was unfair under the Unfair Terms in Consumer Contracts Regulations 1999. Accordingly the unfair terms are not binding on the Defendant.

12. 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.


13. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the signs/terms are not prominent, the PCN was issued with a 'parking charge' that bears no resemblance to the £4 ‘evening parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

13.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

15. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £4. Had the Defendant been clearly alerted to the sum on the day it would have been paid, and there would be no unfair penalty.

15.1. A hidden 'evening charge' of £4 unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

15.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be £4.

The Defendant offered the Claimant the sum of £4 on 12 December 2014. This sum was paid by the Defendant to the Claimant, as full and final payment on 22 July 2018 after the Claimant provided payment details in their letter before claim.

15.4. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

15.4.1. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of Premier Parking Solutions} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

15.5. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''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''.

15. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £4 and no more.

15.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.

15.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £4 and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

16. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that the lack of clear signage, and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

17. 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 £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. This charge is not specified in the Terms and Conditions displayed.

18. In the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £xxxxxx This would be more than double recovery, being vague and disingenuous. Such costs are not permitted (CPR 27.14)

Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste PPS robo-claims at all, on the balance of probabilities.

19. 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 believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

Wow, don't bury that silver bullet in point #15, but I would add to it:

The Defendant offered the Claimant the sum of £4 in an open letter relating to an appeal on 12 December 2014. This sum was paid by the Defendant to the Claimant, marked as full and final settlement on 22 July 2018 after the Claimant provided payment details in their letter before claim. The Defendant did not reject or return the payment from their bank account and nor did they respond saying it was not accepted as ''full and final settlement'' therefore they have accepted that fact by their conduct and they have no cause of action to pursue an unconscionable penalty. That they did not read the words that accompanied the payment - and failed to comply or reply - is the Claimant's concern. Any parking firm will be familiar with the concept of implied consent by conduct, having been afforded the opportunity to read words made available to them clearly.

Hahaha, that's fantastic and should be added to your point #2.

I think you have just thought of a new method of fightback at LBCCC stage when a bank account is made available!!

Honestly this has really made me think about a new approach to LBCCCs...

System

Hahaha, that's fantastic and should be added to your point #2.

Not sure it was. It would have to be argued that it was clearly accepted by both parties and not sure it was.

https://www.lawteacher.net/cases/pinnels-case.php

Coupon-mad

Worth a try though, and something for us to use again as long as it's done early when a LBCCC arrives.

Monies sent to a bank account offered for payment, should have been rejected if they were not accepted...and Pinnels says this:

Therefore, by paying some money early the defendant had provided the plaintiff with a further benefit

System

You missed the important point. The C had requested the D paid a discounted amount early which differentiated the general rule that part payment cannot negate the whole debt.

Cole had, at Pinnel’s request, paid £5 2s 6d one month before the debt was due

DevonChap

Thanks - Unfortunately they did respond saying that they did not accept it as settlement - and have knocked it off the "Principle debt"

Obviously the defendant does not accept their claim - so we will have to let the judge decide. The defendant believes their offer was fair, and it was unreasonable for the claimant to dismiss it, and refuse to negotiate. This leads to unreasonable behaviour and the defendant may ask for costs to be considered.

I have adjusted point 2 "facts" to bring this payment to the attention of the court

How is this looking now?

Regards




IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Premier Parking Solutions LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in the car park stated and had purchased and displayed a ticket.

The Defendant offered the Claimant the sum of £4 in an open letter relating to an appeal on 12 December 2014. This sum was paid by the Defendant to the Claimant, as full and final settlement on 22 July 2018 after the Claimant provided payment details in their letter before claim.


3. The Particulars of Claim give no indication as to why a PCN was issued. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. After receiving a letter before court action the Defendant requested the following information from the claimant, which has not been received:-
i) A copy of the contract. ie photographs of the signs on which the claimant relies.
ii) A plan showing where any signs were displayed
iii) Details of the signs displayed (size of sign, size of font, height at which displayed, and full details of the lighting used with respect to each sign)
iv) The contract between the Landowner and PPS

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
6. The Claimant has confirmed that they are pursuing the Defendant as the registered keeper of the vehicle. The Protection of Freedoms Act 2012 Schedule 4 (the POFA) has not been complied with. The registered keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of charge and prescribed Notice to Keeper letters in time/with mandatory wording.

7. Further and in the alternative, it is denied that the claimant's signage set out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

8. The terms on the Claimant's signage were also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage was capable of creating a legally binding contract.

9. The terms on the Claimant's signage were also unlit. It is, therefore, denied that the Claimant's signage was capable of creating a legally binding contract during periods of darkness.

The British Parking Association ("BPA") Code of Practice sets the requirements for entrance sings. The following requirements are mandatory:
(a) The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead.
(b) Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement takes places at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retroreflective material similar to that used on public roads and described in the Traffic Signs Manual.

10. The claimant’s signage also contained differing terms and conditions at different locations within the car park. It is therefore denied that the Claimant’s signage is capable of creating a legally binding contract.

11. The claimants signage was misleading and therefore it is claimed that the contract was unfair under the Unfair Terms in Consumer Contracts Regulations 1999. Accordingly the unfair terms are not binding on the Defendant.

12. 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.


13. With no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim. The driver has not been identified, the signs/terms are not prominent, the PCN was issued with a 'parking charge' that bears no resemblance to the £4 ‘evening parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

13.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

15. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £4. Had the Defendant been clearly alerted to the sum on the day it would have been paid, and there would be no unfair penalty.

15.1. A hidden 'evening charge' of £4 unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

15.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be £4.

As stated in point 2. The Defendant offered the Claimant the sum of £4 in an open letter relating to an appeal on 12 December 2014. This sum was paid by the Defendant to the Claimant, as full and final settlement on 22 July 2018 after the Claimant provided payment details in their letter before claim.

15.4. At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

15.4.1. And at #32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of Premier Parking Solutions} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

15.5. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''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''.

15. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £4 and no more.

15.1. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500.

15.2. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was just £4 and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

16. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that the lack of clear signage, and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

17. 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 £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. This charge is not specified in the Terms and Conditions displayed.

18. In the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £xxxxxx This would be more than double recovery, being vague and disingenuous. Such costs are not permitted (CPR 27.14)

Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste PPS robo-claims at all, on the balance of probabilities.

19. 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 believe the facts contained in this Defence are true.

Name
Signature
Date

Coupon-mad

Remove #11 as the UTCCRS went out with the Consumer Rights Act, and were ignored in Beavis.

In my view, these paras do not explain the facts. I read these words and need more, to understand why any £4 was allegedly still due:

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in the car park stated and had purchased and displayed a ticket.

The Defendant offered the Claimant the sum of £4 in an open letter relating to an appeal on 12 December 2014. This sum was paid by the Defendant to the Claimant, as full and final settlement on 22 July 2018 after the Claimant provided payment details in their letter before claim.

DevonChap

Thanks

#11 - The ticket was from 2014 - so I think that was before the Consumer Rights Act , which came in May 2015- I think UTCCRS therefore still applied - does it not still apply?


Would this be better for the facts?

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in the car park stated and had purchased and displayed a ticket valid until 20:00. It was believed that this was the end of the chargeable period.

The defendant understands that there was an additional evening charge of £4, which was not seen on the unlit signage.

The Defendant offered the Claimant the sum of £4 in an open letter relating to an appeal on 12 December 2014. This sum was paid by the Defendant to the Claimant, as full and final settlement on 22 July 2018 after the Claimant provided payment details in their letter before claim.

Coupon-mad

#11 - The ticket was from 2014 - so I think that was before the Consumer Rights Act , which came in May 2015- I think UTCCRS therefore still applied - does it not still apply?

Nope because the Beavis decision (about a 2013 parking event I think) killed it off. Don't mention the UTCCRs or the CRA, it is pointless, sadly, thanks to the AWFUL DECISION by the Supreme Court who have ruined too many people's lives to count, thanks to their TERRIBLE decision being used and abused, when they had every chance to muzzle this scam industry and they failed miserably.

Yes that's better - but each paragraph needs a number, or 2.1., 2.2, etc.