Claim form issued - Gladstones / HX Car Park Management LTD PCN

Skyboss

Hello,

I'm new to this forum and would like some advice how to progress my defence for a Court Claim regarding PCN from 16/05/17.

A sequence of events has meant that I now have to submit my defence before 20/10/17 so I apologise for the lateness of this post in advance!

The first I heard of this matter was a letter from Gladstones Solicitors 'letter before claim' 26/07/17 advising that legal action had been commenced and charges of £160 were due.
I replied to this on the 07/08/17 stating that this was the first I had heard about the parking charge.
Gladstones responded to my letter on the 30/08/17 attaching copies of correspondence from HX Car Park Management LTD sent to me 30/05/17 (Parking Charge Notice), 28/06/17 (Outstanding Parking Charge Notice) and 13/07/17 (Final Demand Before Debt Recovery).
I responded 14/09/17 stating that I had not received these previous communications from HX Car Park Management and requested a full breakdown of the charges with regard to the alleged overstay.

The next thing I received was a Claim Form, issued 22/09/17.

I submitted an acknowledgement of service 27/09/17 and this was acknowledged 28/09/17 so by my reckoning I have until the 20/10/17 to submit my defence?

I have drafted a couple of paragraphs for my defence and as the third point I would like to try to prove the charge is a penalty. I have seen a number of posts around this and the Beavis vs PE case, which incidentally, Gladstones are quoting.

My first two point are listed below and will help explain the situation around the parking and subsequent overstay:

Firstly, the vehicle registration xxxx xxx was parked in Car Park 16/0517 on the understanding that free parking was allowed after 18:00hrs for patrons of a nearby restaurant.
There was no signage or notice to the contrary and the vehicle was parked in good faith under these terms & conditions (that free parking would be afforded to patrons of nearby restaurant).
Notices have been erected at some point since this incident advising car park / restaurant users that the previous terms & conditions pertaining to patrons of nearby restaurant no longer apply and that charges now apply after 18:00hrs. This signage was not in place 16/05/17.
As there was no notification of the change in parking terms & conditions a parking charge notice cannot be enforced.

Secondly, sufficient payment was made for the period of parking and beyond. The payment made (80p) at 17:19hrs during the 06:00hrs - 18:00hrs tariff (80p per hour) would cover 1 hour of parking during that time period. However, the tariff changes at 18:00hrs to £1 for the period 18:00hrs - 06:00hrs which equates to an hourly rate of approx. 8.3p per hour. The time period the vehicle was parked meant that a tariff charge change occurred during that period. Therefore, from 18:00hrs the 18:00hrs - 06:00hrs tariff applied. Thus the payment of 80p more than covered the 41 mins parked at the 80p tariff (80/60=1.333p per/min 41*1.333=54.653p rounded up to 55p) and left a credit balance of 25p which, if applied to the 18:00 - 06:00hrs tariff (8.3p per/hour) would mean that parking would be allowed until approx. 21:00hrs.
There was no underpayment or overstay.

I hope the above helps explain how this parking charge has arisen.

I would be very grateful for any advice to help build my defence.

Happy to answer any questions and post copies of correspondence and pictures of signage etc.

Umkomaas

Gladstones on behalf of Marland Minor, the latest new kid on the block!

https://bmpa.zendesk.com/hc/en-us/articles/211664369-HX-Car-Park-Management-Ltd

http://www.bmpa.eu/companydata/HX_Car_Park_Management.html

You have 33 days from the ‘Date of Issue’ shown in the box near the top r/h side of the court claim form to submit your defence.

Please read the NEWBIES FAQ sticky, post #2, which guides you through the entire court process from LBA to court hearing; it includes links to example defences and should now be your ‘go-to’ resource for any query you have about process and procedures before posting random, ad hoc queries on the forum.

You should note that the forum was set up to handle parking charge issues at base level, it has morphed into a quasi-legal forum due to the sheer weight of legal cases burgeoning through the county courts. The number of court experts are very few and far between, so the need to do most of the legwork must fall to you.

Please come back once you’ve drafted your defence to see if anyone is available to critique it for you.

Whether this will actually ever get to court is debatable, especially if you deal robustly with all the processes needed in the run up to a hearing. Gladstones do discontinue when they realise they might have a tiger by the tail.

Skyboss

Thanks Umkomaas I'll take a look.

Skyboss

I’ve been and had a look around and pulled together an initial draft for my defence.

If anyone would like to take a look and critique I would be very grateful……..


It is admitted that the Defendant is the registered keeper of the vehicle in question.

However, the Claimant is not able to bring this claim as they have no authority on the following grounds:

1) The Protection of Freedom Act 2012 Schedule 4 has not been complied with.
A number of elements of this schedule have not been adhered to, including but not limited to the fact that the registered keeper has not been proven as the driver, the keeper can only be held liable if the Claimant has fully complied with all requirements.
XXXXXXXX LTD are not the lawful occupiers of the land . 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 , I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.


2) No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.


3) The vehicle registration XXXX XXX was parked in XXXXX Car Park 16/05/17 on the understanding that free parking was allowed after 18:00hrs for patrons of a nearby restaurant.
There was no signage or notice to the contrary and the vehicle was parked in good faith under these terms & conditions (that free parking would be afforded to patrons of nearby restaurant).
Notices have been erected at some point since this incident advising car park / restaurant users that the previous terms & conditions pertaining to patrons of nearby restaurant no longer apply and that charges now apply after 18:00hrs. This signage was not in place 16/05/17.
As there was no notification of the change in parking terms & conditions, a parking charge notice cannot be enforced. (Q. is there a relevant law or code I can quote here?)

4) Sufficient payment was made for the period of parking and beyond. The payment made (80p) at 17:19hrs during the 06:00hrs - 18:00hrs rate (80p per hour) would cover 1 hour of parking during that time period. However, the rates change at 18:00hrs to £1 for the period 18:00hrs - 06:00hrs which equates to an hourly rate of approx. 8.3p per hour. The time period the vehicle was parked meant that a tariff charge change occurred during that period. Therefore, from 18:00hrs the 18:00hrs - 06:00hrs tariff applied. Thus the payment of 80p more than covered the 41 mins parked at the 80p tariff (80/60=1.333p per/min 41*1.333=54.653p rounded up to 55p) and left a credit balance of 25p which if applied to the 18:00 - 06:00hrs tariff (8.3p per/hour) would mean that parking would be allowed until approx.21:00hrs.
There was no underpayment or overstay. The ticket machine does not operate properly in this instance.


5) The Claimant has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable unfair contract term and this case can easily be distinguished from Parking Eye v Beavis

The purported contract entered into by the motorist is a simple consumer financial contract. An offer of parking is made in return for payment of a small tariff. The Operator is seeking to impose a charge for breach of contract. The loss for failure to make this payment is easily calculable as that unpaid tariff. Anything in excess is clearly a penalty and unfair contract term .

a. The Claimant may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty, despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;- i

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers; - i

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
I
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”-

In this case the vehicle would have been fully entitled to park as it did had payment been made (provided the requirement to do so had been clearly brought to the motorist's attention). The above justifications are irrelevant and conspicuously absent. The only interest the Claimant has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise.The Claimant cannot argue that a legitimate interest is simply ensuring that payment is made, i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pence. The charge is clearly a penalty following the judgment of the Supreme Court.

This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

"43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
park from overstaying beyond the free permitted two hours. So, Mr Hossain
submitted, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least
an economic nature, where the transaction between the contracting parties can be
assessed in monetary terms, as can the effects of a breach of the contract by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.
45. The contract in the present case is entirely different. There is no economic transaction
between the car park operator and the driver who uses the car park, if he or she stays
no longer than two hours; there is no more than (for that time) a gratuitous licence to
use the land. The operator affords the driver a free facility. That facility is, of course,
of economic value to the driver, as well as of convenience, in assisting the driver to
visit the shops in the shopping centre which the car park serves. It is thus useful to
Judgment approved by the court for handing down. ParkingEye -v- Beavis
the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
encouraging visitors, and in particular in encouraging a turnover of visitors because of
the two hour limit. A car owner cannot simply come to the car park and park there all
day. To do that would be to clog up the facility and to prevent those arriving later
from using the park for its intended purpose.
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, unless that rate were also substantial, and well
above what might be regarded as a market rate for the elapsed time, even if the market
rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. It seems to me that the principles underlying the doctrine of penalty ought not to
strike down a provision of this kind, in relation to a contract such as we are concerned
with, merely on the basis that the contractual provision is a disincentive, or deterrent,
against overstaying. When the court is considering an ordinary financial or
commercial contract, then it is understandable that the law, which lays down its own
rules as to the compensation due from a contract breaker to the innocent party, 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.”



This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the Claimant and motorist.There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff (had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner, not the Operator, may be entitled. The demanded charge is, without intellectual dishonesty, a clearly unenforceable penalty .

b. With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 REGULATION5(5) 1 (e) the charge is clearly an unenforceable contract term as the Operator is seeking to impose a charge in compensation that is vastly disproportionate to the parking tariff of only a few pence that the Operator believes should have been paid.


END


I have noticed that the following points of POFA 2012 schedule 4 have not been adhered to:
8,2,e
8,2,f
8,2,h
9,2,f
9,2,h

Should I include these at this stage or keep this for the witness statement?

claxtome

Firstly, the vehicle registration xxxx xxx was parked in Car Park 16/0517 on the understanding that free parking was allowed after 18:00hrs for patrons of a nearby restaurant.

I am curious - was this verbal or written down somewhere?
(Obviously the new signage since is interesting as backs your argument from the day)

XXXXXXXX LTD are not the lawful occupiers of the land . 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 , I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

Is this a separate point or is it linked to POFA 2012?

Other arguments to consider running with:
Particulars of claim are not compliant with practice direction
Pre-Court protocol not followed
Signage not clear as per IPC CoP and Beavis v Parking Eye (maybe lighting issues when you parked)
Additional costs not allowed under POFA 2012

I have noticed that the following points of POFA 2012 schedule 4 have not been adhered to:
8,2,e
8,2,f
8,2,h
9,2,f
9,2,h

Should I include these at this stage or keep this for the witness statement?

My defence statements are quite long and get criticised for not being concise however I am wondering whether you can put a bit more meat on the bones about non-compliance of POFA as believe that is your main defence.

Umkomaas

I have noticed that the following points of POFA 2012 schedule 4 have not been adhered to:
8,2,e
8,2,f
8,2,h
9,2,f
9,2,h

It can’t be both para 8 and para 9.

Para 8 relates to windscreen applied tickets, with a NtK served between days 28 and 56.

Para 9 relates to ANPR camera capture, with a NtK within 14 days from the day after the parking event.

Skyboss

Thank you for your response Claxtome.

The agreement was verbally relayed to customers of the restaurant. I have discovered that there was a written contract with the claimant which expired at the end of march this year. However this was not brought to our attention when we dined at the restaurant on the date the PCN relates to and there was no signage advising of this in the car park. There is signage now but I don't know when this went up or who put it up.

Could I just clarify the points you mention and ask some questions?

The lawful occupiers of the land, I was including this as being linked to POFA, is it not correct, I have seen this used a lot in other defences but not entirely sure if this relates to POFA?

I will look at the practice direction
Pre-court protocol not followed - is this the NTK and non-compliance to POFA?
Signage not Being clear - It was daylight so difficult to use bad lighting but the signage is a pale red font on a gold background which I don't think offers the best contrast and legibility. Also the font is very small which mentions the PCN compared to the the tariff details and other details, name of car park and that it is pay and display etc.
Additional costs - does this apply to the legal representative's costs £50 that appear on the Claim Form?

Skyboss

Ah, yes, my mistake.

It is just 9,2,f and 9,2,h that have not been complied with.
There is no mention on the NtK that the keeper will become liable if after 28 days if the amount has not been paid in full and the name and address of the driver are not known.
The creditor has not been identified on the NtK, just who to make payment to. Or am I to assume that these are one of the same?

There is a an interesting paragraph at the bottom of the NtK that reads:
'Should the registered keeper either provide us with an unserviceable name and address of the driver or if the named driver denies they were the driver, we may pursue the registered keeper for any parking charge amount that remains outstanding on the assumption that they were the driver'
Based on the fact that the registered keeper has not provided an unserviceable name and address or any name and address for that matter and therefore there is no named driver to deny they were the driver. The registered keeper will not be pursued?

Skyboss

Hi, I've added to my defence statement and would like to run this by you for further critique. It is my wife who is the keeper / defendant and I will be her lay representative. We cannot afford legal representation and hope we will be able to at least put up a good fight! Or given the circumstances, are our chances not so good?
Thanks.

Summary of Defence.

It is admitted that the Defendant is the registered keeper of the vehicle in question.

On 16/05/17 the vehicle xxxxxxxx was parked in the xxxxxxx Car Park xxxxxx whilst visiting xxxxxx Restaurant. Patrons of xxxxxx were are allowed free parking after 18:00hrs.

I received a letter before claim from Gladstones solicitors dated 26/07/17 on 28/07/17.

I responded to this letter 07/08/17 requesting full details of the parking charge to which they were referring. Gladstones responded with their letter dated 30/08/17 and failed to address questions such as how the parking charge had been calculated, explanation of the ‘letter before claim’ and also misunderstood other elements of my letter.

In my opinion it looks like a standard template letter reponse roughly covering the points I raised but not actually addressing them.

I responded to their letter 30/08/17 on 14/08/17 asking that they address my original points / questions and responded to their points raised in their letter 30/08/17.

I received no response to my letter 14/08/17 and received a claim form 24/09/17 with an issue date of 22/09/17.

However, the Claimant is not able to bring this claim as they have no authority on the following grounds, any one of which fully negates the Claimant’s case:

1) The Protection of Freedom Act 2012 Schedule 4 has not been complied with.
A number of elements of this schedule have not been adhered to, including but not limited to the fact that the registered keeper has not been proven as the driver, the keeper can only be held liable if the Claimant has fully complied with all requirements.
Notice to Keeper does not warn the keeper that, if after 28 days beginning with with the day after that on which the notice is given, the creditor will have the right to recover from the keeper if the creditor does not know both the name and current address for service for the driver.
HX Car Park Management LTD are not the lawful occupiers of the land. 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, I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this.
No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.
The entrance sign mentions terms and conditions but does not go on to mention all of the terms and conditions contrary to IPC code of practice
The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC code of practice.
Contrast and Illumination, signage - Black on white or white on black are recommended to give a suitable contrast. The signage is at xxxxxx Car Park is coloured pale red font on a gold background which offers a very poor contrast and therefore cannot easily be read. The car park operates 24/7 and has no illumination for any signage except for the sign near to the ticket machine which has inadequate indirect illumination contrary to IPC code of practice. The signage not meeting requirements, no contract has been entered into by the defendant.


3) The vehicle registration xxxxxxxxx was parked in xxxxxxx Car Park 16/05/17 on the understanding that free parking was allowed after 18:00hrs for patrons of xxxxxx restaurant.
There was no signage or notice to the contrary, it was not immediately apparent to the defendant that there had been a change in pre-existing contract / terms & conditions. The vehicle was parked in good faith under these terms & conditions as known to the defendant (that free parking would be afforded to patrons of xxxxxxx restaurant).
Notices have been erected at some point since this incident advising car park / restaurant users that the previous terms & conditions pertaining to patrons of xxxxxxx no longer apply and that charges now apply after 18:00hrs. This signage was not in place 16/05/17.
As there was no notification of the change in parking terms & conditions, a parking charge notice cannot be enforced.

4) Sufficient payment was made for the period of parking and beyond. The payment made (80p) at 17:19hrs during the 06:00hrs - 18:00hrs rate (80p per hour) would cover 1 hour of parking during that time period. However, the rates change at 18:00hrs to £1 for the period 18:00hrs - 06:00hrs which equates to an hourly rate of approx. 8.3p per hour. The time period the vehicle was parked meant that a tariff charge change occurred during that period. Therefore, from 18:00hrs the 18:00hrs - 06:00hrs tariff applied. Thus the payment of 80p more than covered the 41 mins parked at the 80p tariff (80/60=1.333p per/min 41*1.333=54.653p rounded up to 55p) and left a credit balance of 25p which if applied to the 18:00 - 06:00hrs tariff (8.3p per/hour) would mean that parking would be allowed until approx. 21:00hrs.
There was no underpayment or overstay. The ticket machine does not operate properly in this instance.

5) The Claimant makes reference to Parking Eye v Beavis. The Claimant has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable unfair contract term and this case can easily be distinguished from Parking Eye v Beavis.

The purported contract entered into by the motorist is a simple consumer financial contract. An offer of parking is made in return for payment of a small tariff. The Operator is seeking to impose a charge for breach of contract. The loss for failure to make this payment is easily calculable as that unpaid tariff. Anything in excess is clearly a penalty and unfair contract term .

a. The Claimant may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty, despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;- i

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers; - i

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
I
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”-

In this case the vehicle would have been fully entitled to park as it did had payment been made (provided the requirement to do so had been clearly brought to the motorist's attention). The above justifications are irrelevant and conspicuously absent. The only interest the Claimant has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise.The Claimant cannot argue that a legitimate interest is simply ensuring that payment is made, i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pence. The charge is clearly a penalty following the judgment of the Supreme Court.

This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

"43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
park from overstaying beyond the free permitted two hours. So, Mr Hossain
submitted, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least
an economic nature, where the transaction between the contracting parties can be
assessed in monetary terms, as can the effects of a breach of the contract by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.
45. The contract in the present case is entirely different. There is no economic transaction
between the car park operator and the driver who uses the car park, if he or she stays
no longer than two hours; there is no more than (for that time) a gratuitous licence to
use the land. The operator affords the driver a free facility. That facility is, of course,
of economic value to the driver, as well as of convenience, in assisting the driver to
visit the shops in the shopping centre which the car park serves. It is thus useful to
Judgment approved by the court for handing down. ParkingEye -v- Beavis
the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
encouraging visitors, and in particular in encouraging a turnover of visitors because of
the two hour limit. A car owner cannot simply come to the car park and park there all
day. To do that would be to clog up the facility and to prevent those arriving later
from using the park for its intended purpose.
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, unless that rate were also substantial, and well
above what might be regarded as a market rate for the elapsed time, even if the market
rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. It seems to me that the principles underlying the doctrine of penalty ought not to
strike down a provision of this kind, in relation to a contract such as we are concerned
with, merely on the basis that the contractual provision is a disincentive, or deterrent,
against overstaying. When the court is considering an ordinary financial or
commercial contract, then it is understandable that the law, which lays down its own
rules as to the compensation due from a contract breaker to the innocent party, 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.”



This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the Claimant and motorist.There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff (had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner, not the Operator, may be entitled. The demanded charge is, without intellectual dishonesty, a clearly unenforceable penalty .

b. With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 REGULATION5(5) 1 (e) the charge is clearly an unenforceable contract term as the Operator is seeking to impose a charge in compensation that is vastly disproportionate to the parking tariff of only a few pence that the Operator believes should have been paid.

Coupon-mad

I've added to my defence statement and would like to run this by you for further critique. It is my wife who is the keeper / defendant and I will be her lay representative. We cannot afford legal representation and hope we will be able to at least put up a good fight! Or given the circumstances, are our chances not so good?

Your chances are very high. We see people here win 99% of the time, and IMHO, Gladstones are awful.

None of this (below) makes sense placed under your POFA point #1, so these should be broken down into separate numbered points, 2 and 3 and 4:

2. HX Car Park Management LTD are not the lawful occupiers of the land. 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, I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this matter.

3.(i) No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.

3.(ii) It is the Defendant's case that there was no contravention of any term authorised by the landowner, regarding parking after 6pm on the material date, because parking was free from that time. The Claimant is put to strict proof of their case.

4.(i) The entrance sign vaguely mentions terms and conditions but does not go on to mention all of the terms and conditions, contrary to IPC code of practice

(see my suggestions below to add to this...)

4.(ii) The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC Code of Practice, section re: ''Contrast and Illumination, signage - Black on white or white on black are recommended to give a suitable contrast.''

4 (iii) The signage [STRIKE]is [/STRIKE]at xxxxxx Car Park is in coloured pale red font on a gold background which offers a very poor contrast and therefore cannot easily be read. The car park operates 24/7 and has no illumination for any signage except for the sign near to the ticket machine which has inadequate indirect illumination contrary to IPC Code of Practice. The signage not meeting requirements, no contract has been entered into by the defendant.

In your point (nor #4) about signage, I would expand here, and suggest you break down each defence point into (i), (ii), (iii) and so on for each new paragraph within, like I've suggested above:

The entrance sign mentions terms and conditions but does not go on to mention all of the terms and conditions. This is contrary to IPC code of practice, as is the failure to state the parking charges clearly alongside the tariff list at the machine itself, in large lettering. Further, there were no signs drawing the recent change of restrictions to the attention of drivers relying upon the 'free after 6pm' rules offered last time the family attended the on-site restaurant.



I would remove this first part as it doesn't read in your favour; you can use part quotes, just replace the removed words with [...]:

47.[STRIKE] It seems to me that the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is a disincentive, or deterrent, against overstaying[/STRIKE]. [...] When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, 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.”

Skyboss

Thank you Coupon-Mad.

I have amended and added to as you suggested. In addition to the amendments I have added 2 more points after point 1 and added 4(iv,v & vi) and if it's ok I have a couple of questions if I could seek your advice below:

My son is registered visually impaired and I took him down the the car park to try and read the signage. He found the red on gold signs very difficult to read from 1ft distance due to the poor contrast.
Should I add this to my defence?
I would add it under point 4(iii) with reference to IPC signage, contrast and illumination as it specifically states that signage should avoid colour combinations which might cause difficulties for the visually impaired.

With regards to the Notice to Keeper not warning that after 28 days if the driver name address not known the keeper will become liable, should I make reference to IPC Code of Practice in relation to this also or is it ok as is, as point 1?

The signage displays the car park management’s name but does not specifically mention or identify itself as ‘the creditor’ or is this implied by their name being displayed on the signage?
The IPC CoP states that signs must “identify yourself as the ‘creditor’”.

Many thanks, Skyboss






Summary of Defence.

It is admitted that the Defendant is the registered keeper of the vehicle in question.

I request that xxxxxxxxx attend as my lay representative.

On xx/xx/xx the vehicle xxxxxxxx was parked in the xxxxx Car Park Halifax whilst visiting xxxxx Restaurant. Patrons of xxxxxx were are allowed free parking after 18:00hrs.

I received a letter before claim from Gladstones solicitors dated 26/07/17 on 28/07/17.

I responded to this letter 07/08/17 requesting full details of the parking charge to which they were referring. Gladstones responded with their letter dated 30/08/17 and failed to address questions such as how the parking charge had been calculated, explanation of the ‘letter before claim’ and also misunderstood other elements of my letter.

In my opinion it looks like a standard template letter reponse roughly covering the points I raised but not actually addressing them.

I responded to their letter 30/08/17 on 14/08/17 asking that they address my original points / questions and responded to their points raised in their letter 30/08/17.

I received no response to my letter 14/08/17 and received a claim form 24/09/17 with an issue date of 22/09/17.

However, the Claimant is not able to bring this claim as they have no authority on the following grounds, any one of which fully negates the Claimant’s case:

The Protection of Freedom Act 2012 Schedule 4 has not been complied with:
A number of elements of this schedule have not been adhered to, including but not limited to the fact that the registered keeper has not been proven as the driver, the keeper can only be held liable if the Claimant has fully complied with all requirements.

1. Notice to Keeper does not warn the keeper that, if after 28 days beginning with with the day after that on which the notice is given, the creditor will have the right to recover from the keeper if the creditor does not know both the name and current address for service for the driver.

n. Notification Letter to Keeper does not advise that the keeper is liable for the charge nor does it offer the keeper a minimum of 14 days to pay. The document makes reference to the driver only on both counts, Contrary to IPC Code of Practice, Part C, 6. Sending a Notification Letter to Keeper, 6.1 & 6.3.


n. The Notice to Keeper does not state that the Creditor does not know the name and current address for service of the driver, contrary to IPC Code of Practice, Part C, 5.1(f), nor does it identify the Creditor. Only how and whom to pay are mentioned, contrary to Part C, 5.1(j).


2. HX Car Park Management LTD are not the lawful occupiers of the land. 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, I have reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this matter.


3.(i) No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park do not constitute a proven contravention of the parking conditions. The Claimant has failed to provide any evidence that a valid ticket was not on display.


3.(ii) It is the Defendant's case that there was no contravention of any term authorised by the landowner, regarding parking after 6pm on the material date, because parking was free from that time. The Claimant is put to strict proof of their case.

4.(i) The entrance sign vaguely mentions terms and conditions but does not go on to mention all of the terms and conditions. This is contrary to the IPC Code of Practice, Schedule 1, Part E - Signage, as is the failure to state the parking charges clearly alongside the tariff list at the machine itself, in large lettering. Further, there were no signs drawing the recent change of restrictions to the attention of drivers relying upon the ‘free after 18:00hrs’ rules offered last time the family attended xxxxx restaurant.

4.(ii) The text size of the entrance signage means that it is not readable by a motorist in a moving vehicle, or at the very best not easily read contrary to IPC Code of Practice, Part E, schedule 1 - Signage “Contrast and Illumination, signage - Black text on a white background or white text on a black background will provide a suitable contrast”.

4.(iii) The signage at xxxxxx Car Park is in coloured pale red font on a gold background which offers a very poor contrast and therefore cannot easily be read. The car park operates 24/7 and has no illumination for any signage except for the sign near to the ticket machine which has inadequate indirect illumination contrary to IPC Code of Practice, Schedule 1 - Signage. The signage not meeting requirements, no contract has been entered into by the defendant.

4.(iv) There is no warning on signage that if a charge remains unpaid for a period of 28 days after issue then an application will be made to DVLA for the keeper’s details, contrary to IPC Code of Practice, Schedule 1 - Signage, Other signs, condition 3.

4.(v) Signage is not clearly legible and placed in such position that a driver is able to clearly see them on entering and parking a vehicle, contrary to IPC Codes of Practice, Schedule 1, signage, condition 4.

4.(vi) Signage does not contain text appropriate to position and relative position of the person who is reading it, contrary to IPC Codes of Practice, Schedule 1, signage, condition 6.



5. The vehicle registration xxxxxxxx was parked in xxxxxx Car Park xx/xx/xx on the understanding that free parking was allowed after 18:00hrs for patrons of xxxx restaurant.
There was no signage or notice to the contrary, it was not immediately apparent to the defendant that there had been a change in pre-existing contract / terms & conditions. The vehicle was parked in good faith under these terms & conditions as known to the defendant (that free parking would be afforded to patrons of xxxxx restaurant).
Notices have been erected at some point since this incident advising car park / restaurant users that the previous terms & conditions pertaining to patrons of xxxxx no longer apply and that charges now apply after 18:00hrs. This signage was not in place xxx/xx/xx.
As there was no notification of the change in parking terms & conditions, a parking charge notice cannot be enforced.

6. Sufficient payment was made for the period of parking and beyond. The payment made (80p) at 17:19hrs during the 06:00hrs - 18:00hrs rate (80p per hour) would cover 1 hour of parking during that time period. However, the rates change at 18:00hrs to £1 for the period 18:00hrs - 06:00hrs which equates to an hourly rate of approx. 8.3p per hour. The time period the vehicle was parked meant that a tariff charge change occurred during that period. Therefore, from 18:00hrs the 18:00hrs - 06:00hrs tariff applied. Thus the payment of 80p more than covered the 41 mins parked at the 80p tariff (80/60=1.333p per/min 41*1.333=54.653p rounded up to 55p) and left a credit balance of 25p which if applied to the 18:00 - 06:00hrs tariff (8.3p per/hour) would mean that parking would be allowed until approx. 21:00hrs.
There was no underpayment or overstay. The ticket machine does not operate properly in this instance.

7. The Claimant makes reference to Parking Eye v Beavis. The Claimant has no legitimate interest in enforcing their charge, the charge is disproportionate, a penalty and an unenforceable unfair contract term and this case can easily be distinguished from Parking Eye v Beavis.

The purported contract entered into by the motorist is a simple consumer financial contract. An offer of parking is made in return for payment of a small tariff. The Operator is seeking to impose a charge for breach of contract. The loss for failure to make this payment is easily calculable as that unpaid tariff. Anything in excess is clearly a penalty and unfair contract term .

a. The Claimant may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty, despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;- i

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers; - i

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
I
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”-

In this case the vehicle would have been fully entitled to park as it did had payment been made (provided the requirement to do so had been clearly brought to the motorist's attention). The above justifications are irrelevant and conspicuously absent. The only interest the Claimant has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise.The Claimant cannot argue that a legitimate interest is simply ensuring that payment is made, i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pence. The charge is clearly a penalty following the judgment of the Supreme Court.

This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

"43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
park from overstaying beyond the free permitted two hours. So, Mr Hossain
submitted, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least
an economic nature, where the transaction between the contracting parties can be
assessed in monetary terms, as can the effects of a breach of the contract by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.
45. The contract in the present case is entirely different. There is no economic transaction
between the car park operator and the driver who uses the car park, if he or she stays
no longer than two hours; there is no more than (for that time) a gratuitous licence to
use the land. The operator affords the driver a free facility. That facility is, of course,
of economic value to the driver, as well as of convenience, in assisting the driver to
visit the shops in the shopping centre which the car park serves. It is thus useful to
Judgment approved by the court for handing down. ParkingEye -v- Beavis
the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
encouraging visitors, and in particular in encouraging a turnover of visitors because of
the two hour limit. A car owner cannot simply come to the car park and park there all
day. To do that would be to clog up the facility and to prevent those arriving later
from using the park for its intended purpose.
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, unless that rate were also substantial, and well
above what might be regarded as a market rate for the elapsed time, even if the market
rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. [...]: When the court is considering an ordinary financial or
commercial contract, then it is understandable that the law, which lays down its own
rules as to the compensation due from a contract breaker to the innocent party, 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.”



This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the Claimant and motorist.There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff (had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner, not the Operator, may be entitled. The demanded charge is, without intellectual dishonesty, a clearly unenforceable penalty .

b. With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 REGULATION5(5) 1 (e) the charge is clearly an unenforceable contract term as the Operator is seeking to impose a charge in compensation that is vastly disproportionate to the parking tariff of only a few pence that the Operator believes should have been paid.