Parking in Garage/McDonalds

RedPen50

Oh 'eck - ok, I think I have deleted the link, can someone try it and see if it comes up?

Quentin

Yes it's dead now

RedPen50

That's fab, thank you.

RedPen50

Hi Guys, here is the next instalment of my defence, so hopefully starting to look something like. Please have a look and all comments welcome!


In the County Court


Between


Hx Car Park Management Limited


v


xxx


Defence


Background - The Defendant was escorting a relative to their diabetic hospital appointment after which, due to the extended length of the appointment, they decided to stop for food at the McDonald's Restaurant at the bottom of Salterhebble Hill, Halifax, next to the garage.


I am xxx, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper and driver of the vehicle in question at the time of the alleged incident.


The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parked at Salterhebble Garage on 1/2/18. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge' for the lawful conduct described below.


The Defendant denies liability for the entirety of the claim for the following reasons:


Signage-Prohibitive


1. The defendant was completely unaware that the site was being enforced by any restrictive terms including the use of CCTV and ANPR cameras. There were no entrance signs at all to show that the defendant was entering an area of 'parking enforcement' or 'private land'. The road was not marked as a no-stopping zone nor transparently signed as a permit-holders or 'managed' site, as their Code of Practice requires.


1.2. Any 'charge' or terms on signage on the day was not seen but even if the court believes signs were displayed, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis case, the Claimant offered no licence to park if unauthorised.


1.3. In the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016 where District Judge Glen stated: "The sign relied on by the Claimant states that the area is a No Stopping Zone. The only logical interpretation is that the Claimant alleges that a vehicle parked in the area is trespassing. The Claimant is a mere contractor and has no legal capacity to bring a claim for trespass".


1.4. The IPC Code of Practice clause 3.2 states "Where ANPR technology is used, this must be clearly stated using appropriate signage".


1.5 The defendant argues that the signs used at the Salterhebble site are poorly designed as the information in large text explains that the land is private and shows the parking company's telephone number. The actual terms and conditions are printed in a much smaller sized text which makes it difficult for the motorist to read without getting out of the vehicle and walking up to the sign. This would, in effect, force the motorist to breach the alleged contract by exiting the vehicle and this could be argued in a case of entrapment. Please see below from clause 2.1 of the IPC Code of Practice:


2.1Where the basis of your parking charges is based in the law of contract which will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too much be communicated to drivers in the same way.


1.6 As stated within the IPC Code of Practice clause 3.2, "Where ANPR technology is used, this must be clearly stated using appropriate signage". Cameras must be used in a transparent manner. To meet this requirement, the signage should state the timing of the vehicle from the moment of entry and the moment of exit. The signage must also say what the parking company will use the ANPR data for. The Hx Car Park Management Ltd sign reads, in small text: "Automatic number place recognition may be in use. Images may be captured and retained for enforcement purposes". There is no mention of what the parking company will do with this ANPR data.


Grace Period


2. The IPC Code of Practice clause 15.1 states "Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site". As per the photographic evidence taken by the Claimant, the vehicle in question can clearly be seen at 13.51pm and leaving at 13.55pm. This is a time period of four minutes. Grace Periods have been listed from anywhere from five to ten minutes. As the defendant left the site well within the grace period, the Claimant's charge should not be accepted.


Contract - No locus standi


3. In order to issue and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. As per the Supreme Court in the case of Cavendish Square Holding VC v Talal El Makdessi and ParkingEye Ltd v Beavis (2015) UKSC 67, trespass is limited to the landowner themselves claiming for a nominal sum.


3.1 On the Hx Car Parking Management Ltd website, it is stated: "We often get appeals asking for a copy of the landowner authority, due to data protection we can not give this document out, but shall the PCN be taken to court, then all the documents will be produced to the court and in the litigation process".


3.2 The defendant requested a copy of the alleged contract and was told that the terms and conditions are on the signs. Referring back to the parking company's website, it is stated: "Our contracts between us and the landowner/agents are protected for Data Protection. However, should the case be taken to the County Court to recover a debt then it will be produced to the courts or in the litigation process".


3.3 By refusing to provide the defendant with copies of the landowner authority and a copy of the alleged contract, the Defendant's preparation of her defence has been restricted.


3.4 In this instance, Hx Car Parking Management Ltd has taken no steps to provide evidence that such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof.


3.5 Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When Hx Car Parking Management Ltd unfairly tickets a patron of either the McDonald's Restaurant and/or the garage, any commercial justification in the form of support by these businesses for such unfair ticketing is absent.


3.6 Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.


Applicability of ParkingEye Ltd v Beavis (2015) UKSC 67


4. The defendant argues that the Supreme Court's landmark decision in the Beavis case is not applicable in this case.


4.1 This case is not supported by any similarity in the circumstances or signage. Mr Beavis refused to pay a charge of £85 for overstaying a permitted period of free parking in a retail car park. The signs displaying this information were accepted to be large, prominent and legible. Mr Beavis exceeded the time limit by one hour but declined to pay the charge.


4.2 In the defendant's case, there were no parking machines or parking bays, indeed there was no ticket to purchase. There was no contract for the defendant to read and accept, unless they exited the vehicle to read the signage's terms and conditions, written in small text. Terms cannot be altered at a later date with figures plucked out of thin air.


4.3 To engage a penalty the question was whether the relevant provision was 'unconscionable' or 'extravagant' (Lord Hodge at [221]). The full test was expounded by Lord Hodge (at [225]): "I therefore conclude that the correct test for a penalty is whether the sum or remedy stipulated as a consequence of a breach of contract is exorbitant or unconscionable when regard is had to the innocent party's interest in the performance of the contract. Where the test is to be applied to a clause fixing the level of damages to be paid on breach, an extravagant disproportion between the stipulated sum and the highest level of damages that could possibly arise from the breach would amount to a penalty and thus be unenforceable. In other circumstances the contractual provision that applies on breach is measured against the interest of the innocent party which is protected by the contract and the court asks whether the remedy is exorbitant or unconscionable".


4.4 The Supreme Court was only prepared to accept a charge (£85) that was sufficient to act as a deterrent and that was worth collecting.


4.5 In Beavis only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agree in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing machine and it was held that the claim could not have been pleaded as damages, and would have failed.


Parking Charge


4.5 The defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The defendant denies any agreement to pay the original demand of £100.


4.6 The Claimant has claimed a £50 legal representative's cost on the claim form, despite being well aware the CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Claimant is put to strict proof to show how this cost has been incurred.


The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim and to allow such defendant's costs as are permissible under Civil Procedure Rule 27.14.


I confirm that the facts in this defence are true to the best of my knowledge and belief.


Name/Signature


Date

Coupon-mad

Your numbering is a bit confusing, and this whole first bit needs numbering too, every paragraph needs a number:

Background - The Defendant was escorting a relative to their diabetic hospital appointment after which, due to the extended length of the appointment, they decided to stop for food at the McDonald's Restaurant at the bottom of Salterhebble Hill, Halifax, next to the garage.

I am xxx, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper and driver of the vehicle in question at the time of the alleged incident.

The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when parked at Salterhebble Garage on 1/2/18. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge' for the lawful conduct described below.

The Defendant denies liability for the entirety of the claim for the following reasons:

I have only skim-read but this is just waffle, adds nothing and should be removed:

3.1 On the Hx Car Parking Management Ltd website, it is stated: "We often get appeals asking for a copy of the landowner authority, due to data protection we can not give this document out, but shall the PCN be taken to court, then all the documents will be produced to the court and in the litigation process".

3.2 The defendant requested a copy of the alleged contract and was told that the terms and conditions are on the signs. Referring back to the parking company's website, it is stated: "Our contracts between us and the landowner/agents are protected for Data Protection. However, should the case be taken to the County Court to recover a debt then it will be produced to the courts or in the litigation process".

3.3 By refusing to provide the defendant with copies of the landowner authority and a copy of the alleged contract, the Defendant's preparation of her defence has been restricted.

Also remove this unnecessary quote, which confuses the numbering and adds nowt:

Please see below from clause 2.1 of the IPC Code of Practice:
2.1Where the basis of your parking charges is based in the law of contract which will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too much be communicated to drivers in the same way.

RedPen50

In the County Court


　Between


　Hx Car Park Management Limited

v


xxx


Defence

RedPen50

Apologies - was a bit eager to post my updated defence - getting bit panicky now as only have a few days to get this right and posted!

RedPen50

Hi Again, well this is the second version. I must admit having read more defences and finding relevant information I have added and re-jigged more than I really wanted to. I have renumbered the paragraphs using 'a' 'b' etc as this should be easier to work out which paragraph(s) there are and I have also deleted the bits mentioned by Coupon-Mad. That's said, I'm probably starting to waffle now, but if you could please have another look and see if I've wandered too far off point! Many thanks for your comments.


In the County Court


　Between

Hx Car Park Management Ltd


　v


xxx


　Defence
　
1. Background - The Defendant was escorting a relative to their diabetic hospital appointment after which, due to the extended length of the appointment, they decided to stop for food at the McDonald's Restaurant at the bottom of Salterhebble Hill, Halifax, next to the garage.



2. I am xxx, defendant in this matter. It is admitted that the Defendant was the authorised registered keeper and driver of the vehicle in question at the time of the alleged incident.


3. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, when entering McDonald's Resaurant / Salterhebble Garage on 1/2/18. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant £100 'parking charge' for the lawful conduct described below.


4. The Defendant denies liability for the entirety of the claim for the following reasons:


5. Signage-Prohibitive



a. The Defendant was unaware that the site was being enforced by any restrictive terms including the use of CCTV and ANPR cameras. There were no entrance signs at all to show that the defendant was entering an area of 'parking enforcement' or 'private land'. The road was not marked as a no-stopping zone nor transparently signed as a permit-holders or 'managed' site, as their Code of Practice requires.


b. The defendant argues that the signs used at the Salterhebble site are poorly designed as the only information written in large text states 'private land' and the company's telephone number. The actual terms and conditions are printed in a much smaller sized text which makes it difficult for the motorist to read, side on from their vehicle, without getting out of the vehicle and walking up to the sign. This would, in effect, force the motorist to breach the alleged contract by exiting the vehicle and this could be argued in a case of entrapment.


c. The Defendant denies that the signs at this location meet the mandatory test of transparency of terms that are 'bound to be seen', as set out within the Consumer Rights Act 2015. The exit is the same for both the McDonald's Restaurant and the garage, any terms relating to a parking contract would not reasonably be expected to apply, and would have had to have been extremely clear in all places within the site, not just on a perimeter fence at a 45 degree angle to the motorist, with very large letters to ensure all drivers were 'bound to see' the terms. If there was a passenger in the vehicle, seated on the left side of the vehicle, as in the Defendant's case, the passenger would have restricted the motorist's view even further.


d. Any 'charge' or terms on signage on the day was not seen but even if the court believes signs were displayed, the terms were in such small print as to be illegible, contrary to the Consumer Rights Act 2015. Even if the court is minded to accept that a sign was visible, the wording on the sign was prohibitive. Unlike in the Beavis case, the Claimant offered no licence to park if unauthorised.


e. In the County Court at High Wycombe, in the case of Parking Control Management (UK) Ltd v Bull & 2 Others (B4GF26K6, 21 April 2016 where District Judge Glen stated: "The sign relied on by the Claimant states that the area is a No Stopping Zone. The only logical interpretation is that the Claimant alleges that a vehicle parked in the area is trespassing. The Claimant is a mere contractor and has no legal capacity to bring a claim for trespass".


f. The signage at this site make no offer and therefore cannot form a contract.


6. Disputed ANPR Cameras on Salterhebble site
a. The Defendant disputes whether there are actual survellience cameras at the garage site due to the way the evidence photographs provided by the Claimant have been presented. The photographs have been taken at ground level, on an angle from behind the garage building



b. If, indeed, there are no ANPR cameras at the Salterhebble site, and the photographs were taken by a person with a personal camera, the Defendant refers to the IPC Code of Practice:
2 (g) Explain that if the full amount of the charge is not paid within 28 days an application will be made to DVLA for the keeper’s details to enable the charge to be enforced.


c. At the time of the first correspondence (6th February 2018), the Defendant's details had already been requested by the parking company from DVLA, and the Defendant had not been allowed the 28 day period. Hx Car Park Management Ltd has not been compliant with the IPC Code of Practice in this instance.



7. Dispute of Contravention - Parked in an area that should be kept clear at all times
a. The Defendant disputes the accuracy of the photographic evidence as the photograph was taken at ground level, on an angle and side on to the garage building, which hides the true width of the exit, which is approximately three times wider than shown in the photographs.


8. Grace Period


a. The IPC Code of Practice clause 15.1 states "Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site".






b. As per the photographic evidence taken by the Claimant, the vehicle in question can clearly be seen at 13.51pm and leaving at 13.55pm. This is a time period of four minutes. Grace Periods have been listed from anywhere from five to ten minutes. As the defendant left the site well within the grace period, the Claimant's charge should not be accepted.




9. Failure to set out clear parking terms - ParkingEye Ltd v Beavis (2015) UKSC 67 distinguished.


a. The defendant argues that the Supreme Court's landmark decision in the Beavis case is not applicable in this case.


b. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''


c. The Defendant relies upon ParkingEye Ltd v Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout. This case is distinguished from the Beavis case in that there are inadequate signs which are incapable of binding the driver who did not enter into any contract.


d. In the Defendant's case, there were no parking machines or parking bays, indeed there was no ticket to purchase. There was no contract for the defendant to read and accept, unless they exited the vehicle to read the signage's terms and conditions, written in small text.


e. To engage a penalty the question was whether the relevant provision was 'unconscionable' or 'extravagant' (Lord Hodge at [221]). The full test was expounded by Lord Hodge (at [225]): "I therefore conclude that the correct test for a penalty is whether the sum or remedy stipulated as a consequence of a breach of contract is exorbitant or unconscionable when regard is had to the innocent party's interest in the performance of the contract. Where the test is to be applied to a clause fixing the level of damages to be paid on breach, an extravagant disproportion between the stipulated sum and the highest level of damages that could possibly arise from the breach would amount to a penalty and thus be unenforceable. In other circumstances the contractual provision that applies on breach is measured against the interest of the innocent party which is protected by the contract and the court asks whether the remedy is exorbitant or unconscionable".


f. The Supreme Court was only prepared to accept a charge (£85) that was sufficient to act as a deterrent and that was worth collecting.


g. In Beavis only the parking charge itself (£85) was pursued and the sum was scrutinised by the Supreme Court and held to already include a significant sum in profit; being a pre-set sum dressed up as a fee or charge agree in contract. This was already significantly over and above the very minimal costs of operating an automated ticketing machine and it was held that the claim could not have been pleaded as damages, and would have failed.


h. This land is not comparable with the retail park in Beavis, and nor are the facts of the case.


10.TheANPR cameras are not identified upon entry to McDonalds or the garage.
a. The Defendant argues that the photographs provided by the Claimant is not from an ANPR camera as the trajectory of the photographs is close to the ground, as if taken by a person with a personal camera. This person, hidden from view, took photographs of the vehicle in question immediately. This is just the sort of 'predatory' practice banned by the IPC Code of Practice The Claimant is put to strict proof that they have complied with ICO Code of Practice, clause 14.1:



14.1 You must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious instance of non-compliance and will be dealt with under the sanctions system as defined in schedule 2 to the Code.
11.Disputed Legal Costs


a. The Claimant has claimed a £60 legal representative's cost on the claim form, despite being well aware the CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Claimant is put to strict proof to show how this cost has been incurred.



b. Hx Car Park Management Ltd appear to have an in house legal department as evidenced by their Letter Before Claim which was signed off from 'Gladstones Solicitors'.


c. An email was sent to the Defendant from a litigation assistant from Gladstones reiterating the same information.



d. The defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established. The defendant denies any agreement to pay the original demand of £100.


e. In order to issue and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. As per the Supreme Court in the case of Cavendish Square Holding VC v Talal El Makdessi and ParkingEye Ltd v Beavis (2015) UKSC 67, trespass is limited to the landowner themselves claiming for a nominal sum.


f. In this instance, Hx Car Parking Management Ltd has taken no steps to provide evidence that such authority has been supplied by the Claimant or their legal representatives, and the Claimant is put to strict proof.


g. Even if the Claimant is able to produce such a landowner contract, it is averred that there can be no legitimate interest arguable by the Claimant in this case. When Hx Car Parking Management Ltd unfairly tickets a patron of either the McDonald's Restaurant and/or the garage, any commercial justification in the form of support by these businesses for such unfair ticketing is absent.


h. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.


i. On 2.2.18, a request from Rt. Hon. Sir Greg Knight (MP East Yorkshire, Cons) to read the Code of Practice for a second reading, on the parliamentlive.tv website, (12.49), and he points out that mentions that any parking company who provides poor signage, using bullying tactics and not responding to motorists complaints should be held to account. Gladstones Solicitors was mentioned, operating a 'robo-claim' system. The link between the IPC and Gladstones was also mentioned, as was the changing of names of Directors to try and hide this connection.


12.The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim and to allow such defendant's costs as are permissible under Civil Procedure Rule 27.14.


I confirm that the facts in this defence are true to the best of my knowledge and belief.




Name/Signature


Date

RedPen50

Just as a quick question - I have included in my defence the fact that I inadvertently let slip (when talking to Gladstones on the phone) that I was the driver. That is the only time that I have acknowledged I was the driver. Would Gladstones use this against me if I removed this point? Would they use the recorded telephone conversation? Or shall I just leave it as it is? Many thanks.

Coupon-mad

If you let slip to Gladstones, then you should defend as the driver now, so your defence is correct in that regard.

Just a few tweaks I reckon, now:

I would remove one of the two mentions of the Consumer Rights Act 2015.

I would change 9d, adding a bit (see in red) and deleting a sentence, as there were not machines in Beavis either:

d. In the Defendant's case, there [STRIKE]were no parking machines or parking bays, indeed there was no ticket to purchase. There[/STRIKE] was no contract for the defendant to read and accept, unless they exited the vehicle to read the signage's terms and conditions, written in small text. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the facts of this case. To quote from the Supreme Court:

i) 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''.

ii) 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.''

iii) 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.''

Change #11 to this as the a, b, c and deleting 'h' as the contract was not 'illegal':

11. Disputed Legal Costs
a. The Claimant has claimed a £60 legal representative's cost on the claim form, despite being well aware the CPR 27.14 does not permit such charges to be recovered in the Small Claims Court.

b. The Claimant is put to strict proof to show how this cost has been incurred and that it formed a prominent, legible part of any terms on signage, and that it was, in fact, expended. The Claimant's/Gladstones template has artificially hiked the total sum on the claim form to £xxx.xx which would be more than double recovery; this is vague, not part of any contract and wholly disingenuous, and the Defendant is alarmed by this gross abuse of process.

c. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. The Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste robo-claims at all, and that the filing of yet another fact-unchecked parking claim by Gladstones is purely a daily administrative function. 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.


[STRIKE]b. Hx Car Park Management Ltd appear to have an in house legal department as evidenced by their Letter Before Claim which was signed off from 'Gladstones Solicitors'.[/STRIKE]

[STRIKE]c. An email was sent to the Defendant from a litigation assistant from Gladstones reiterating the same information.[/STRIKE]

[STRIKE]h. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced.[/STRIKE]



And the end should be like this, I'd suggest:

12. 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. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim and to allow such defendant's costs as are permissible under Civil Procedure Rule 27.14.

I believe the facts contained in this Defence are true.


Name

Signature

Date