Popla appeal unsuccessful...Civil Enforcement

vicki1930

Thank you.

I have already resent the link

Coupon-mad

OK so I'd want to specifically deny the allegation that you 'failed to make payment for your vehicle' and point out how common the issue is, given that the VRN list shows that in a period of less than one hour at that single site, THREE paying drivers did the same thing, and on each occasion the numbers would certainly be enough to identify a vehicle that matched that 'age identifier'.

The VRN list is also clearly tampered with/altered, as I've shown below.

So I suggest this defence (you can't use the POFA if you've admitted driving). The red/bold text is obviously only so you can see the added words, and not meant to stay red/bold in your daughter's signed & dated final version!

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

Civil Enforcement 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. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question at the time of the alleged incident.

3. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXX XXX when it was parked at xxxxxxxxxxxxxxxxxxxxxxxx.

3.1. The PCN stated the contravention as 'Payment not made in accordance with terms displayed on signage' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), not least because it is already common ground that the correct parking charge (tariff) had already been paid and the numbers input identified the vehicle, setting it apart from any other car using the site. If the Claimant disagrees they must demonstrate with evidence that more than one car with the age identifier '52' was on site and had not paid.

3.2. The Defendant complied with their understanding of the requirement to enter the vehicle number, given that many car parks require only the numbers to identify a car to match a payment. [STRIKE]In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.[/STRIKE]

[STRIKE]3. Further based upon the scant and deficient details contained in the Particulars of Claim and correspondence, it appears to be the Claimant’s case that:
a. There was a contract formed by the Defendant and the Claimant on xx/xx/2016.
b. There was an agreement to pay a sum or parking charge.
c. That there were Terms and Conditions prominently displayed around the site.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums.[/STRIKE]

4. It is denied that:
a. the Defendant 'failed to purchase a parking session for her vehicle'
b. a contract was formed to pay anything more than the advertised tariff;
c. There was any agreement to pay a further penalty parking charge;
d. [STRIKE]That[/STRIKE] there were Terms and Conditions prominently displayed around the site which prominently displayed the £100 penalty.
e. [STRIKE]That[/STRIKE] in addition to the parking charge there was an agreement to pay additional and unspecified additional sums;
f. the Claimant in fact expended the claimed additional sums;
g. the parking charge had any legitimate interest excuse, given the conduct complained of was in fact normal established usage of such machines.


Primary defence - payment was made [STRIKE]but the system hid a concealed pitfall or trap[/STRIKE]

5. The Defendant made payment in full of the amount due. Payment for parking was made using the pay and display ticket (PDT) machine.

5.1. The payment channel did not indicate any failure to make payment, nor prompt a driver to also enter letters as well as the vehicle 'number' and a ticket was provided so the Defendant concludes that the contract de facto granted a parking session/licence, based on the numbers only.

5.2. Weeks later, the Defendant [STRIKE]duly[/STRIKE] unexpectedly received a PCN in the post, and did not know at this point why it had been issued as payment had been made in full and a ticket displayed. The PCN failed to set out the reasons for the parking charge, nor did it have regard to, nor even mention or offset the tariff which it as common ground from the outset, was already paid.

[STRIKE]5.3. The PCN was late arriving and was received outside of the time afforded by The Protection of Freedoms Act 2012 schedule 4 section 9. [/STRIKE]

5.3. At POPLA appeal stage, the Defendant was shown a list of VRNs and learned that the charge was punishment for entering '52' (numbers only). The list of 32 VRNs/payments showed that in less than an hour at this site alone, three drivers made the same 'error' and another has entered just the letters 'VHU', thus, over 10% of paying patrons interpreted the signs to mean a partial number or set of letters was enough to identify their vehicle. No average, circumspect paying driver would deliberately or negligently breach, and in doing so, agree to pay an unconscionable £100 penalty on top of the £1 tariff.

5.3.1. Further, the authenticity of the VRN list provided as evidence to POPLA is called into question by the Defendant, since it is clear that it has been tampered with. There are obvious deletions or alterations of more than one entry, with an inexplicable and highly unlikely two-and-a-half hours missing between 08.59am and 11.32am, followed by a section which throws out the alternate white/grey lines, showing an unlikely electronic record 'glitch' of two white lines in a row. This echoes the altered VRN list (alleged to be fraudulent/contempt of court) in the recent case in the public domain, where Excel Parking Services Ltd were reportedly held to have tampered with a VRN list from a PDT machine which they produced as 'evidence'. This alteration horrified a Skipton Court Judge who ordered punitive costs on the indemnity basis, and later in 2018 the facts were restated in the order by HHJ Gosnell declining Excel's appeal (ref: Excel v Ambler, case no. E1DP2061).

5.4. The DPA states that personal data is 'inaccurate' if it is incorrect or misleading as to any matter of fact. The matter of fact here is that payment of the tariff was made by the driver of the vehicle which was captured by ANPR. Clearly the Claimant had sufficient information to conclude from their secondary data stream (ANPR) that a simple oversight (human error) had been made, yet instead of rectifying their data to match the payment, they [STRIKE]and for which the Claimant duly[/STRIKE] obtained the Defendant's personal data from the DVLA.

5.5. Given the fact that the ANPR data did not match with a payment made, an automated PCN was issued. However, parking firms are prohibited from issuing ANPR PCNs without manual checking by human intervention (BPA Code of Practice and AOS rules). [STRIKE]and it[/STRIKE] It was within the gift and duties of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose and the terms are fair, i.e. [STRIKE]such that[/STRIKE] where a ''full VRN'' is required, then payment not be accepted and a ticket not issued until the full [STRIKE]VNR[/STRIKE] VRN has been entered. Indeed, modern PDT machines commonly display the image of cars that have arrived with a touch screen to select the right car, thus avoiding any allegation of error leading to an unfair (not 'agreed') three figure penalty.

5.6. A PCN in these circumstances is completely foreseeable by a professional parking firm, and it is averred that this punitive charge relies upon [STRIKE]the Claimant's own data being wrong at the outset, and going unnoticed by a driver.[/STRIKE] taking advantage of common human error and/or a reasonable interpretation of the sign requiring the 'vehicle registration number' (the sign does not use the word ''full'' and the doctrine of contra proferentem applies, such that ambiguous wording must be interpreted in favour of the consumer). Over 10% of drivers getting it 'wrong' is sufficient evidence of a lack of clarity and ambiguity that is open to interpretation, and the innocuous instruction to enter a number was not an 'understandable ingredient of a scheme serving legitimate interests'.

[STRIKE]5.7. The 'automated decision' of the Claimant's chosen payment app to decide to set one of the registered cars as 'default' is not the Defendant's responsibility, especially since it was done without the Defendant's consent or knowledge. It is not reasonable in these circumstances for the driver to be forced after the event to assume the unknown burden or obligation of spotting an error in the stream of data that emanates solely from the Claimant's payment agent. [/STRIKE]

5.7. [STRIKE]The Defendant pointed out the data processing error, as soon as it became apparent that this was the reason for the PCN issue.

5.8.[/STRIKE]
Thus, given the Defendant's appeal and the ANPR camera system, which proved which single car with the age identifier '52' was actually in this car park, the Claimant knew about the error and was afforded ample opportunity to rectify the inaccurate data held by one of their two conflicting data streams. [STRIKE]their system.[/STRIKE]

5.8. At all times, from the ANPR image, the Claimant knew the correct VRN and it is averred that the PCN cannot have been properly or fairly checked before it was issued, since there was nothing to deter and no legitimate interest in merely penalising a consumer.


No agreement [STRIKE]on the penalty and no[/STRIKE] nor contract formed by conduct - Beavis is distinguished

6. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed beyond the agreement to pay the tariff and identify the car 'number'. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

6.1. [STRIKE]It is clear that no conduct by the Defendant caused the penalty to arise and a professional parking firm could not reasonably lay any blame with the Defendant, for their own agent's data storage presumption and negligence.[/STRIKE] The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith. There was a complete lack of any fair warning on the screen: ''are you sure, have you entered your full VRN? A penalty of £100 applies if inaccurate or incomplete numberplates are entered here''. In fact, the signage images shown to POPLA (which did not include any images of the instructions at the PDT machine) do not even show - anywhere - a sum of £100 to be paid. If it is there it is positively hidden, buried in small print; only the £1 and £5 alternative tariffs could possibly be deemed 'agreed' and understood.

[STRIKE]6.2. Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015, and must also be a valid and enforceable ('distance') telephone payment contract that is not unconscionable, given the facts of the case. The Defendant avers that this punitive charge fails in all respects.

6.2.2. And the Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land, even if a Claimant is not relying upon that Act) is defined as ''an obligation arising under the terms of a relevant contract''. [/STRIKE]

[STRIKE]6.2.3.[/STRIKE] 6.2. The Defendant avers that there was no [STRIKE]such[/STRIKE] relevant contract or relevant obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

7. The Claimant may try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the fact that the innocent conduct of the Defendant caused no issues to other drivers, took up no valuable parking space that the driver was not entitled to use, and the sum for parking was in fact, paid. So there was no disincentive or deterrent excuse, no compelling legitimate interest to save this charge from the penalty rule, which the Supreme Judges stated, starts as 'engaged' in all parking charge cases.

To quote from the decisions during the course of the court process in Beavis:

7.1. At the Court of Appeal (these findings were not overturned):
Para 46: ''The terms of use of the car park need, therefore, to provide a disincentive to drivers which will make them tend to comply with the two hour limit. That is afforded by the parking charge of £85. It would not be afforded by a system of imposing a rate per hour according to the time overstayed...''

Para 47: ''...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law [...] should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

7.2. At the Supreme Court:
At para #22, 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.''

Para 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 ParkingEye} [...] 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.''

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.''


Authorities other than Beavis, better apply to the instant case

8. It is the Defendant's case that the correct authorities in a PDT machine car parking case are not Beavis at all, but instead, due to the above quoted precedent findings, Kemble v Farren is the correct authority regarding this sort of of unrecoverable penalty, as well as:

8.1. Spurling v Bradshaw [1956] 1 WLR 461 where Denning LJ held that a person will not be bound by terms of a contract of which he has not received reasonable notice: ''I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it, before the notice could be held to be sufficient'', and

8.2. Jolley v Carmel Ltd [2000] 2 –EGLR -154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach, and

8.3. Thornton v Shoe Lane Parking Ltd [1971] QB 163, where it was held that the machine itself constituted the offer. The acceptance was by putting the money into the machine. The ticket was dispensed after the acceptance took place; therefore another unknown/hidden clause that the driver learned about too late, was not incorporated into the contract.


No standing or landowner authority

9. Further and in the alternative, 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 under defined parameters [STRIKE](including when caused by failure of their own data processing/excessive storage)[/STRIKE] and to form/offer contracts in their own name, and to pursue payment by means of litigation.


No legitimate interest or commercial justification

10. It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a hundredfold penalty, for the ordinary and reasonable conduct explained in this defence. [STRIKE]not noticing inaccurate data presented to them on behalf of the Claimant, in small print.[/STRIKE]

10.1. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.


Unconscionable sum claimed - double recovery - abuse of process

11. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector or other costs, which the Defendant submits have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than three times this sum. The Defendant avers that this inflation of the considered amount is a gross abuse of process.

11.1. The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. According to Ladak v DRC Locums UKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

12. The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.

13. When Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) or alternatively, for the hearing fee to be ordered to be paid before exchange of documents between the parties, because where a claim from this serial Claimant is robustly defended, this Claimant routinely discontinues after seeing a Defendant's Witness Statement and never pays the court hearing fee.

14. It is an unfair burden and a complete waste of time for the Defendant to spend hours on their own Witness Statement against a vexatious litigant who then discontinues. Research shows that this Claimant is regularly observed as being in pursuit of default judgments to use as an aggressive form of debt collection, with no intention of paying for or attending the majority of hearings.

15. 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

vicki1930

Brilliant! Thanks very much 😊

harrys_dad

Does Coupon-mad ever sleep, or just spend 24 hours a day providing the best free service to be found anywhere?

The_Deep

Indeed, she needs to get a hobby.

beamerguy

harrys_dad wrote: »

Does Coupon-mad ever sleep, or just spend 24 hours a day providing the best free service to be found anywhere?

I know, truly amazing:T:T

Coupon-mad

I have plenty of hobbies, but this is one of them!

vicki1930

Civil Enforcement eventually paid the court fee at the final hour and my daughter has now received a hearing date of 9th April. She has had no contact from CEL so the defence doesn't appear to have fazed them.

I have done a witness statement and would be grateful if someone could cast an eye over it and point out any amendments that I need to make. I'm not sure if I need to include paragraphs 10 - 14.1, could you advise please:


In the Northampton County Court at
Claim No.
Between

and

---

Witness Statement

---

1. I am ___________, of ____________the Defendant in this matter. I assert that I am not liable to the claimant for the sum claimed, or any amount at all, for the following reasons:

2. On 30th January 2016, I parked my vehicle, registration number _________ in the car park at ___________. I made payment in full of the amount due. Payment for parking was made using the pay and display ticket (PDT) machine and a ticket was obtained. Exhibit 1 parking ticket obtained showing amount paid.

2.1. I complied with my understanding of the requirement to enter the vehicle number, given that many car parks require only the numbers to identify a case to match a payment. There was nothing displayed on the signage to say that charges would be made for failing to enter the entire registration number.

2.2 The payment channel did not indicate any failure to make payment, nor prompt a driver to also enter letters as well as the vehicle numbers and a ticket was provided so the defendant concludes that the contract de facto granted a parking session based on the numbers only.

3. I received a parking charge notice (PCN) some weeks later from the claimant by post and I did not know at this point why it had been issued as payment had been made in full and a ticket displayed. The PCN failed to set out the reasons for the parking charge. Exhibit 2 PCN received.

4. I appealed to POPLA and was then informed that the reason for the issue of the PCN was that I had entered only the ‘numbers’ from the vehicle registration number (VRN). I was provided with a list of 32 VRN payments from that site alone. Exhibit 3 list received.

4.1. Three drivers had made the same error and one had entered only the letters from the VRN. Thus 10% of paying patrons had interpreted the signs to mean a partial number or set of letters was enough to identify their vehicle. The VRN list also appears to have been tampered with. There are obvious deletions or alterations of more than one entry, with an inexplicable and highly unlikely two-two and a half hours missing. This echoes the altered VRN list (alleged to be fraudulent/contempt of court) in the recent case in the public domain, where Excel Parking Services Ltd were reportedly held to have tampered with a VRN list from a PDT machine which they produced as ‘evidence’. This alteration horrified a Skipton Court Judge who ordered punitive costs on the indemnity basis, and later in 2018 the facts were restated in the order by HHJ Gosnell declining Excels appeal (ref: Excel v Ambler, case no. E1DP2061).

5. The fact that payment had been made would have been captured by ANPR and the claimant had enough information to conclude from their secondary data stream ANPR)
that an oversight (human error) had been made, yet instead of rectifying their data to match the payment, they contacted DVLA to obtain my personal details. Parking firms are also prohibited from issuing ANPR PCNs without manual checking by human intervention (BPA Code of Practice and AOS rules).

5.1 Given that I had appealed and the ANPR camera system, which proved which single car with the age identifier ‘52’ was actually in this car park, the Claimant knew about the error and had ample opportunity to rectify the inaccurate data held by one of their two conflicting data systems.

5.2 At all times, from the ANPR image, the Claimant knew the correct VRN and it is averred that the PCN cannot have been properly or fairly checked before it was issued, since there was nothing to deter and no legitimate interest in merely penalising a consumer.

6. On 5th July 2016 I received a letter before action. Exhibit 4 copy of letter received.

6.1 I responded to that letter disputing the debt and asking for a fully compliant letter before action to be sent. I received no response. Exhibit 5 copy of letter sent.

7. I heard nothing else until 18th April 2018 when I received correspondence from debt collectors ZZPS Ltd advising that costs had been added and the amount outstanding was now £200.00. Exhibit 6 copy of correspondence received.

7.1 I responded to ZZPS Ltd advising that I disputed the debt and asking for a compliant letter before action…no response was received. Exhibit 7 copy of letter sent.

8. On 25th May 2018 I received a further letter from QDR Solicitors acting on behalf of ZZPS Ltd who were acting on behalf of the claimant. The letter did not comply with the requirements of Annex A Para 2 of the Practice Direction on Pre-Action Conduct. Exhibit 8 copy of letter received.

8.1 I received a further letter from QDR Solicitors on 12th June 2018, threatening court proceedings. Exhibit 9 copy of letter received.

8.2 On 24th August 2018 a further letter was received from the claimant which still did not comply with the requirements of Annex A Para 2 of the Practice Direction on Pre-Action Conduct. No mention was made of my previous letters in which I said I wished to dispute the debt. Exhibit 10 copy of letter received.

9. On 4th October 2018 I received a Copy of a claim form which had been issued by the claimant.

9.1 The claim appears to be based upon damages for breach of contract. However, it is denied that any contract existed beyond the agreement to pay the tariff and identify the car ‘number’. Accordingly it is denied that I breached any contractual terms, whether express, implied or by conduct.

9.2 The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring ‘ open dealing’ and the doctrine of good faith. There was a complete lack of any fair warning on the screen: “are you sure, have you entered your full VRN? A penalty of £100 applies if inaccurate or incomplete number plates are entered here”. In fact, the signature images shown to POPLA ( which did not include any images of the instructions at the PDT machine) do not even show – anywhere a sum of £100 to be paid. If it is there it is positively hidden, buried in small print; only the £1 and £5 alternative tariffs could possibly be deemed ‘agreed’ and understood.

9.3 I maintain that there was no relevant contract or obligation or burden that could fairly and squarely fall at my feet that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 ‘Prohibitions’ of the Consumer Protection from Unfair Trading Regulations 2008.


To quote from the decisions during the course of the court process in Beavis:

10. The Claimant may try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the fact that the innocent conduct of the Defendant caused no issues to other drivers, took up no valuable parking space that the driver was not entitled to use, and the sum for parking was in fact, paid. So there was no disincentive or deterrent excuse, no compelling legitimate interest to save this charge from the penalty rule, which the Supreme Judges stated, starts as 'engaged' in all parking charge cases.

10.1 At the Court of Appeal (these findings were not overturned):
Para 46: ''The terms of use of the car park need, therefore, to provide a disincentive to drivers which will make them tend to comply with the two hour limit. That is afforded by the parking charge of £85. It would not be afforded by a system of imposing a rate per hour according to the time overstayed...''

Para 47: ''...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law [...] should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

10.2 At the Supreme Court:

At para #22, the Supreme Court explored Lord Dunedin's speech inDunlop: ''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.''

Para 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 ParkingEye} [...] 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.''

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.''


Authorities other than Beavis, better apply to the instant case

11. It is the Defendant's case that the correct authorities in a PDT machine car parking case are not Beavis at all, but instead, due to the above quoted precedent findings, Kemble v Farren is the correct authority regarding this sort of of unrecoverable penalty, as well as:

11.1 Spurling v Bradshaw [1956] 1 WLR 461 where Denning LJ held that a person will not be bound by terms of a contract of which he has not received reasonable notice: ''I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it, before the notice could be held to be sufficient'', and

11.2 Jolley v Carmel Ltd [2000] 2 –EGLR -154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach, and

11.3 Thornton v Shoe Lane Parking Ltd [1971] QB 163, where it was held that the machine itself constituted the offer. The acceptance was by putting the money into the machine. The ticket was dispensed after the acceptance took place; therefore another unknown/hidden clause that the driver learned about too late, was not incorporated into the contract.

No standing or landowner authority

12. Further and in the alternative, 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 under defined and to form/offer contracts in their own name, and to pursue payment by means of litigation.

No legitimate interest or commercial justification

13. It is my case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a hundredfold penalty, for the ordinary and reasonable conduct explained in this witness statement.

13.1 The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

Unconscionable sum claimed - double recovery - abuse of process

14. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of its claim by adding purported but unsupported damages, admin, debt collector or other costs, which I submit have not actually been incurred at all. The claim flows from an alleged (already hugely inflated) contractual parking charge of £100 but the sum on the claim form is more than three times this sum. I aver that this inflation of the considered amount is a gross abuse of process.

14.1 The Claimant is a serial offender on this regard and must be well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims track. According to Ladak v DRC LocumsUKEAT/0488/13/LA the Claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

15. I deny any liability whatsoever to the Claimant in any matter and ask the Court to note that the Claimant has failed to disclose any cause of action in the Claim Form, where the sparse cut & paste particulars are embarrassing and give rise to no recognisable claim in law.

16. I invite the Court to dismiss this Claim in its entirety, and to award my costs of attendance at the hearing, permissible under Civil Procedure Rule 27.14.

I believe the facts stated in this Witness Statement are true.

Coupon-mad

In the Northampton County Court at

It won't be Northampton unless that's your local court.

Your WS has far too much legal argument - you do need to repeat your defence (you can say at the start 'My Defence is repeated' if you like, and then talk about what happened, much more concisely). You don't need to talk through each & every letter.

vicki1930

Good Morning...thank you for your response.

Can you confirm where I would add 'my defence is repeated' and also how much of the detail I should remove. Also do I need all of the references from paragraph 10 onwards?

Thanks in advance