MPC Parking Charge and County Court

Coupon-mad

1 The Defendant is the [STRIKE]registered[/STRIKE] hirer of the vehicle in question with the vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2 The Claim relates to an alleged debt in damages arising from [STRIKE]a driver's[/STRIKE] an alleged breach of contract, when parking at Derby Street, Burton upon Trent, DE14 2JJ, 05/02/2018.

3 The facts of the matter are that the [STRIKE]Defendant[/STRIKE] driver had paid the £3.50 tariff requested at the PDT machine, which displayed only small tariffs and nothing about any £100 penalty risk and nothing about having to make that payment before unloading cases inside the Hotel onsite, and checking in. The Claimant had received the monetary value for the overnight parking of £3.50 within a reasonable time after arrival but had already issued a predatory 'CN'. The tariff appeared to be a fixed overnight payment that could be made during the stay and not in advance, and not within a certain time after driving in.[STRIKE]for the overnight car.[/STRIKE]

3.1. In ParkingEye Ltd v Beavis [2015] UKSC 67, 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 sum set in advance which was already significantly over and above the very minimal costs of operating an automated ticketing regime. Damages could not be added; it was held that a claim from a parking firm agent could not have been pleaded as damages, and would have failed.

3.2. Further, it was held by the Judges in Beavis at Court of Appeal stage, that a case regarding an ordinary transactional contractual fee (such as in a pay and display car park with a quantifiable tariff) was 'entirely different' from the complex situation in that case. The Supreme Court did not disagree and made it clear that their decision hinged upon the complex free parking licence and the need for a turnover of parking spaces which gave ParkingEye a legitimate interest, plus the prominent, brief and clear notices with the parking charge in the largest lettering.

3.3. The Defendant avers that this charge is unconscionable, given the fact that the conduct caused no issues to other drivers, took up no valuable parking space that the occupants of the car were not entitled to use as patrons of the Hotel, and the sum for parking was in fact, paid in full. Guests of the Hotel are de facto staying overnight and the occupants of the car believed they could pay during the evening, given the fact that the fixed sum would not change and was not charged at an hourly rate for staying guests. Therefore, there was no deterrent justification behind this predatory penalty charge.

3.4. There was no disincentive justification that could excuse penalising paying patrons, no compelling legitimate interest to save this charge from the penalty rule, which the Supreme Judges stated, starts as 'engaged' in all parking charge cases and cannot represent merely punishment. To quote from the decisions during the course of the court process in Beavis:

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

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

- At the Supreme Court:
At para #22, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

Para 32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

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.''

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

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

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

(iii) Thornton v Shoe Lane Parking Ltd [1971] QB 163, where it was held that the machine itself constituted the offer. The acceptance was by putting the money into the machine and any other unknown/hidden clause that the driver learned about too late, was not incorporated into the contract.

I know it's wordier but adding that near the start of your defence gives you a steer as to what your arguments will be at the hearing.

And there's no such thing as a 'REGISTERED hirer'.

BTW, you know the notice on the windscreen? was it a proper 'PCN' or a piece of crappy paper in a RED envelope, saying 'THIS IS NOT A PARKING CHARGE NOTICE'?

And for the love of God, when you log back in, EDIT YOUR FIRST POST which goes on about and identifies the driver!!

camshron18

Hi Coupon-mad,

Cannot thank you enough for this response, very very helpful indeed and much appreciated.

I have edited the first post - thank you!

Correct, it was a piece of crappy paper however in a white flimsy envelope, saying 'THIS IS NOT A PARKING CHARGE NOTICE'

Is this an advantage to the Defence?

Coupon-mad

Correct, it was a piece of crappy paper however in a white flimsy envelope, saying 'THIS IS NOT A PARKING CHARGE NOTICE'

Is this an advantage to the Defence?

I think it's worth saying (will make the defence longer).

Look at the VCN example defence in the NEWBIES thread that I wrote for this hybrid 'CN' (yet 'not a PCN') situation - you can use some of that too. Feel free to copy.

camshron18

Hi Coupon-mad thank you,

Is this the reply you are referring to? - thank you

2.1. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a yellow/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

2.2. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

Coupon-mad

Yes and there's mention of it further down that example defence too, in the landowner authority point where I asserted that even if the landowner has authorised parking charges to be issued, it was not in their contemplation that this Claimant would issue ''non-CNs'' to mislead and confuse drivers.

camshron18

Wow, ok so I think I maybe finally there with all of your help so thank you!!

I need to submit this to them tomorrow so I think this evening it my last shot at refining the below before submission!

Any last minute help on this is massively appreciated - thank you!!




---

1 The Defendant is the hirer of the vehicle in question with the vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2 The Claim relates to an alleged debt in damages arising from an alleged breach of contract, when parking at Derby Street, Burton upon Trent, DE14 2JJ, 05/02/2018.

3 The facts of the matter are that the driver had paid the £3.50 tariff requested at the PDT machine, which displayed only small tariffs and nothing about any £100 penalty risk and nothing about having to make that payment before unloading cases inside the Hotel onsite, and checking in. The Claimant had received the monetary value for the overnight parking of £3.50 within a reasonable time after arrival but had already issued a predatory 'CN'. The tariff appeared to be a fixed overnight payment that could be made during the stay and not in advance, and not within a certain time after driving in

3.1. In ParkingEye Ltd v Beavis [2015] UKSC 67, 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 sum set in advance which was already significantly over and above the very minimal costs of operating an automated ticketing regime. Damages could not be added; it was held that a claim from a parking firm agent could not have been pleaded as damages, and would have failed.

3.2. Further, it was held by the Judges in Beavis at Court of Appeal stage, that a case regarding an ordinary transactional contractual fee (such as in a pay and display car park with a quantifiable tariff) was 'entirely different' from the complex situation in that case. The Supreme Court did not disagree and made it clear that their decision hinged upon the complex free parking licence and the need for a turnover of parking spaces which gave ParkingEye a legitimate interest, plus the prominent, brief and clear notices with the parking charge in the largest lettering.

3.3. The Defendant avers that this charge is unconscionable, given the fact that the conduct caused no issues to other drivers, took up no valuable parking space that the occupants of the car were not entitled to use as patrons of the Hotel, and the sum for parking was in fact, paid in full. Guests of the Hotel are de facto staying overnight and the occupants of the car believed they could pay during the evening, given the fact that the fixed sum would not change and was not charged at an hourly rate for staying guests. Therefore, there was no deterrent justification behind this predatory penalty charge.

3.4. There was no disincentive justification that could excuse penalising paying patrons, no compelling legitimate interest to save this charge from the penalty rule, which the Supreme Judges stated, starts as 'engaged' in all parking charge cases and cannot represent merely punishment. To quote from the decisions during the course of the court process in Beavis:

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

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

- At the Supreme Court:
At para #22, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

Para 32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest {of ParkingEye} [...] In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.''

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

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.''

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

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

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

(iii) Thornton v Shoe Lane Parking Ltd [1971] QB 163, where it was held that the machine itself constituted the offer. The acceptance was by putting the money into the machine and any other unknown/hidden clause that the driver learned about too late, was not incorporated into the contract.


4. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a yellow/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude, from the date of the premature Notice to Keeper ('NTK') that was posted, that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

4.1 Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.


5 The Claimant does not state whether they believe the Defendant was the driver of the vehicle on the material date. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.!

6 As stated in Point 1, the defendant is the hirer of the vehicle. The Protection of Freedoms Act 2012, Schedule 4, at Section 14(2)(a) states that a condition for the creditor to pursue the hirer is that “the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper”. The documents mentioned in paragraph 13(2) and the notice to keeper have never been provided, thus the claimant has failed to comply with the POFA 2012.

7 A copy of the documents from paragraph 13(2) have not been sent to the Defendant. I have evidence of a “Notice to Driver” referring to the same alleged parking offence. The original notice to owner/keeper haven’t been forwarded in the manner of which is stated under POFA 2012. Also, part C, Section 4 of the IPC Code of Practice states:
“4.1 Where a creditor receives notification from a vehicle hire company that at the specified time the relevant vehicle was under a hire agreement then a Notice to Hirer
must be sent to the hirer” The Defendant puts the Claimant to proof that any “Notice to Hirer” documents have ever been sent.

8 Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

9 Therefore, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contract liability, or trepass. Accordingly, it is denied that the Defendant breached any of the Claimant’s purported contractual terms, whether express, implied, or by conduct.

10 Further and in the alternative, it is denied that the claimant’s signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The signage is attached to a pole at the exit of the car park behind a pub advertisement board and merely states “Pay and Display – Private Land”. It is therefore, denied that the Claimants’ signage is capable of creating a legally binding contract.

11 The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that is has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.!

12 The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue an alleged £100 debt. The Protections of Freedoms Act 2012, in schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.

13 In summary, it is the Defendant’s position that the claim discloses no cause of action, is without merit, and no real prospect of success. The Claimant’s particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

I believe the facts contained in this Defence are true.

*Signature and Date to be inserted*

Coupon-mad

Yes get that signed, dated and emailed to the CCBC.

nosferatu1001

Perosnally I would put POFA compliance furhter up, but thats just me - a hirer can firstly rely upon POFA fialures, only if that is dismissed (somehow!) do you need to consider signage.

camshron18

Signed dated and sent, thank you for all your help. I will keep you updated on it!

camshron18

Quick question. On the MCOL website it says:

Your defence was received on 27/11/2018
DQ sent to you on 27/11/2018

Currently I only received:

AUTO RESPONSE DO NOT REPLY - CCBC AQ Acknowledgment

I presume this is not the actual DQ that you refer to just yet?