Parking in Garage/McDonalds

RedPen50

That's fab, Coupon-Mad, many thanks. I have made the changes you suggested and here is the next draft (hopefully the last!). As before, any comments are welcome.


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. 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, No ANPR:
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 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 unsconscionable, 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 99: "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."

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. The ANPR 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 £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.


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 £240.55 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 the 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.


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. On 2.2.18 there was a request from the 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 mentioned that any parking company who provided poor signage, used bullying tactics and failed to respond to motorists' complaints should be held to account. Gladstones Solicitors was mentioned as 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. 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

RedPen50

Just a quick note - I realised that the legal costs asked for was £50 not £60, so I have changed that.

Coupon-mad

Yes, it's long but on point, so I say print it off, sign & date it and get it emailed to the CCBCAQ email that KeithP often posts up.

Your email must be headed up 'URGENT DEFENCE - CLAIM NUMBER XXXXXXX'

KeithP

Coupon-mad wrote: »

Yes, it's long but on point, so I say print it off, sign & date it and get it emailed to the CCBCAQ email that KeithP often posts up.

...and has already posted up in post #7 above.

RedPen50

Done - well that's all emailed off - so relieved! Huge thanks to you all, especially Coupon-Mad for your help. Let's see what they do now. One question, do I post my defence too? Or just email it? I have the notes that KeithP put in #7, which implies just emailing them. Is this right?

Coupon-mad

One question, do I post my defence too? Or just email it?

Just email. If you are close to the 33 day wire, I would phone the CCBC if MCOL has not updated to show 'defended' by noon tomorrow! You need to be sure the email is picked up if you are close to the time when the scammers might try to enforce a default CCJ.

RedPen50

Ok, so sent the email and I called the court this morning who confirmed they had received it. So now its a waiting game. I will keep you updated.

KeithP

Don't forget this from post #7:

6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.

We have seen a few CCBC errors in this area recently.

RedPen50

Ok will do.

RedPen50

Ok Guys, so got an email from Gladstones saying:


We act for the Claimant and have notified the Court of our Client’s intention to proceed with the claim.

Please find attached a copy of our Client’s completed Directions Questionnaire, which will be filed with the court upon their request. You will note we intend to request a special direction that the case be dealt with on the papers and without the need for an oral hearing

This request is sought simply because the matter is in our Client’s opinion relatively straightforward and the costs incurred by both parties for attending an oral hearing would be disproportionate.

You will note our Client has elected not to mediate. Its decision is not meant to be in any way obstructive and is based purely on experience, as mediation has rarely proven beneficial in these types of cases. Notwithstanding this, our Client would be happy to listen to any genuine payment proposals that you wish to put forward.


Well, I've seen the newbies thread, especially from bargepole, so I know I am definitely not accepting only on papers and will request a court appearance. They have sent me two N180, one normal and one special, so I'm going to fill them out according to bargepole - however it says to send it back by the stated date, but there isn't anything on either one saying when to get the form in by. Is it a general date i.e. 14 days after I receive the email etc?


Thanks in advance.