Not parked, on a car park that no longer exists

Loadsofchildren123

IPC membership list helpfully shows date of joining (I seem to remember). If not, email BPA - they are very quick to respond and will give you the date Excel jumped ship.

Loadsofchildren123

As a general comment OP, I was a bit fussy and changed "they" to "it" in one place but not throughout - the Claimant is a singular it not a plural they. It's more natural to say "they" so you may prefer to leave it as it is, nobody is going to care about details like that.

Coupon-mad

Excel jumped to the IPC on 1.1.15, so at the time of the parking event they were with the BPA, as has already been said (don't tip them off about showing the right BPA - not IPC - signage in their later evidence!):

http://parking-prankster.blogspot.co.uk/2015/01/excel-parking-jump-ship-to-independent.html

Signage photo taken by one of my lovely sons and provided to the Prankster immediately for Blogging and posterity. We happened to go into Brighton that day and had stopped off at Currys along the main road and (being me, I check signs) I spotted the dirty mustard IPC roundel.

jjay33

Thanks for the feedback everyone, this is really helpful. I have a few more queries:

Point 3
The alleged offence took place in Dec 14, just before they switched to IPC. Coupon-Mad suggested I should keep this up my sleeve, regarding which CoP they were under at the time? This is why I've retained reference to both. I was taking a 'vague' approach in order not to give them too much insight... is this still the best approach or not?

I have photos of the site from Google and from the Council planning application to demolish the adjacent building in 2016. The signage is poor, so do I still add in some more detailed reference to the poor signage, time of year, and weather conditions, or save that for my skeleton defence/witness statement?

Point 4
If I add more detail here and quote the relevant CoP guidance around grace period, will that also give them too much information to prep their case in line with the correct CoP at the time? Could I be vague and just mention grace period?

Point 6
Thanks - I will do some more homework on this tonight

Reference to Beavis
The LBC refers to the Beavis case - so I added that in to make the point that it is not relevant in this case, by ending that paragraph with "None of this applies in this material case." - Do you think this isn't relevant? AFAIC I didn't enter into a contract, so should I spell it out more clearly?

Coupon-mad

Your defence doesn't need that level of detail yes. This is a time to cover the bases you will need later.

Reference to Beavis
The LBC refers to the Beavis case - so I added that in to make the point that it is not relevant in this case, by ending that paragraph with "None of this applies in this material case." - Do you think this isn't relevant? AFAIC I didn't enter into a contract, so should I spell it out more clearly?

Yes it should be stated that no contract was formed. And it is true to say that most cases are nothing like the facts in Beavis.

Loadsofchildren123

C-M obviously has a plan but I'm not sure what you gain by being circumspect about which is the relevant CoP.
The applicable CoP is BPA's. The provisions on grace periods and that compliance with the Code is mandatory are good abd clear and you should refer to them specifically. No harm referring to IPC's as well I suppose if there's a reason for sitting on this.

Coupon-mad

My reasoning is that the PCN was issued in Jan 2015 but the incident was in December 2014 (so the signs in evidence must only be BPA signs). I think the claimant will show IPC signs in evidence, unless the OP tips them off.

I don't think that the BPA CoP breaches need spelling out yet, and they could just say the Claimant has not complied with their ATA Code of Practice as regards signage (or whatever issues) and put them to strict proof to the contrary.

Loadsofchildren123

Yes that's what happened in my case - BPA member at the parking dare but 3 weeks later jumped ships to IPC. The signs they claimed were at the site had the IPC roundel so I argued that they couldn't possibly be the signs in place at the time - and as there was no evidence of the signage the case should be dismissed.

jjay33

OK, second draft.. as I was putting this together I started to get really riled about the whiole thing, and as such I'm wondering if I'm getting over dramatic in Point 6? I've re-read it a couple of times, and I'm comfortable with it, but would appreciate feedback on this or any other of the points.

In the County Court Business Centre
Claim Number ****
Between:
[The Claimant] v ****
Defence Statement

I am *** the defendant in this matter and previous registered keeper of vehicle ***. I currently reside at *****

The Claim Form issued on the XX March 2017 by [The Claimant] was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “[The Claimant].

I deny I am liable for the entirety of the claim of either £246.58 or £245.50, whichever is the correct amount, for each and every one of the following reasons:

This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (which [The claimant] has chosen to quote in the Letter of Claim) which was dependent upon a denied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this is relevant and does not apply in this material case.

1. This Claimant has not complied with pre-court protocol:
(a) The ‘Letter before County Court Claim’ arrived 2 days after the County Court Claim Form, contravening Practice Direction.
(b) A Letter before Claim was received in February 2017, over 2 years after the alleged contravention and referred to several prior notifications, none of which were received. The badly mail-merged documents contain very little information, employ over the top ‘scare tactics’, each contains a different financial breakdown of the costs the claimant is seeking to recover, and the bulk of the LBC & LBCCC both give more page real estate to their payment methods than any legal justification of the charges. All paperwork was posted without requiring proof of receipt (signed for).
c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has little information to deduce what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.

2. I submit that the Claimant is a well-funded company with a dedicated legal staff, and is a serial litigator with no desire to negotiate to a reasonable conclusion, and so reduce the burden on the court system. Despite being given the opportunity to engage in a dialogue in December 2014, with the Defendant, who contacted them via email as detailed on their website, they ignored an appeal against the alleged contravention. The Defendant only received two identical automated replies in response to the email, and then received no further correspondence until February 2017, when over-inflated costs were demanded with threatening overtones.

3. The signage on the site in question was unclear and not prominent as per Excel Parking Services Ltd v Martin Cutts, 2011. The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. Therefore, no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days. There can, therefore, be no contract through performance. Additionally, large parts of the sign are in blue on yellow, a combination warned against by the BPA & IPC code of practice as hard to read.

The entrance sign was located directly by the entrance to the car park, on the left, so would only be legible from the passenger side of a right-hand drive car entering the car park. This sign cannot easily be read from a distance, by any driver entering the car park, as the wording is too small and the sign is not illuminated. Other signs are placed high on posts on the outer perimeters of the car, above the height that anyone in a car could read, and most people of average height. They are certainly not legible to a driver in their car, who is contemplating whether to park in the car park or not.

4. The Claimant's evidence relies solely on an entry and exit photograph. There is no photograph of the vehicle parked, without a ticket being displayed. This is denied and the claimant has offered no evidence that any action by the driver at the time has led to a breach of this purported condition. In order to demonstrate that the driver parked and/or failed to pay & display, the Claimant has the burden to have evidenced that, with photos and readings from that day from the machines, which are known to be unreliable.

It is alleged that the driver was parked for a period of 20 minutes. In fact, all the Claimant has shown is that the driver entered and exited the car park and the time that passed between the entrance and exit was 20 minutes. This indicates that the driver did not "park" at all and cannot have accepted any terms purportedly offered. 20 minutes would indicate that the driver either could not find a parking space, or decided against parking, for whatever reason, and then left the site. it is for this very reason that the BPA & IPC Code of Practice requires the Claimant to provide for a grace period.

5. The proper claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Services Ltd.
a) Excel Parking Services Ltd is not the lawful occupier of the land.
b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land. Has not shown that it has have the authority to issue charges on this land in its their own name and that they have no right to bring action regarding this claim.

6. The Protection of Freedoms Act states in Para 4(5) "The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d)" which is this case is 9(2)d, whereby the total amount of charges specified in the notice.

The Act does state that the claimant can “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given — (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

However, no part of the Act invites the claimant to add in any admin or legal costs, and this does not form any part of the contract which the claimant states is on their signage and that I reputedly entered into. I therefore submit that the inclusion of bogus admin and legal fees in the Letter Before Claim, and subsequent documentation, demonstrates that the primary aim of [the claimant] in seeking these costs from me, is not to request fair compensation for loss of business but is a deliberate act of extracting money with menaces, in order to benefit financially, in a way that is disproportionate with the original alleged offence.

7. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-
a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

8. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. The Defendant invites the court to strike out the claim as disclosing no cause of action and having no prospect of success. In the alternative, the Defendant requests the court to order the Claimant to provide Further and Better Particulars of Claim and to have regard to the Claimant's contact when it disposes of the costs of the case.

Coupon-mad

Looking good.

In fact it can be said that the POFA Schedule 4 disallows added costs in two ways:

(a) firstly it caps the sum to be recovered at the sum on any compliant Notice to Keeper. This is clearly stated and unequivocal in the statute.

(b) And the Statute continues: ''Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery).''

Further, ParkingEye Ltd v Beavis helpfully confirmed that the penalty rule and Lord Dunedin's four tests for a penalty continue to apply in less 'complex' private parking charge cases. Indeed, in Beavis, £85 was the only sum sought; it was a fact not disputed at any stage that the parking charge already covers all costs and includes profit. This was held in the Court of Appeal and Supreme Court as an amount set high enough to more than cover the costs of a fully-automated and generic 'car park enforcement' business model and allow for profit. Therefore it is completely disingenuous (whether or not they are mentioned in small print on signs) to suggest that random sums can be bolted on top of a 'parking charge' taking it over the £100 ceiling.

Utter fabrication which CPR 27.14 certainly disallows - a thinly-veiled attempt at double recovery.

Oh, and disproportionate sums sought which far exceed compensation for breach are disallowed under the Consumer Rights Act 2015 as well which was not explored in the Beavis case because that didn't come into force until after the hearings and well after the 2013 parking event by Mr Beavis.