Defence assistance

Lop5

Yes, sorry for the delayed reply. I emailed a pdf copy to the claimant and my court date is 5th July so not long now. I'm just in the midst of writing my skeleton argument. Am I right just to list responses to the Claimant's WS? Along with expanding on my own defence?

Everton1

Sorry for posting on thread Help needed for county court defence statement don't know how to post

Le_Kirk

Everton1 wrote: »

Help needed for county court defence statement don't know how to post

Don't know how to post what? A question on the forum or your defence to the court and/or claimant. Best place to start is the NEBWIE section (front page of the forum, third thread down) and read post # 2 which takes you through AoS to court appearance. Then start your OWN thread please.

Everton1

Le Kirk have just started new thread been looking all day on what to do but am so stuck any help writing a defence letter would be appreciated

KeithP

Yes, I can see that you have started a new thread.

But you started it on the Motoring board, not on the Parking board.

DUTR

Everton1 wrote: »

Le Kirk have just started new thread been looking all day on what to do but am so stuck any help writing a defence letter would be appreciated

Take note of what the people are advising you, start a new thread in the parking board not the motoring board which you have done, read the newbies thread in the parking board.

To not lose these cases (no guarantee of winning) is to at least follow the minimum standard required.
People can't help you if you won't try and help yourself (follow the protocol).

Coupon-mad

Lop5 wrote: »

Yes, sorry for the delayed reply. I emailed a pdf copy to the claimant and my court date is 5th July so not long now. I'm just in the midst of writing my skeleton argument.

Am I right just to list responses to the Claimant's WS? Along with expanding on my own defence?

Yes, but mainly it's your legal arguments & case law, unlike the WS that was the story of what happened.

Lop5

Coupon-mad wrote: »

Yes, but mainly it's your legal arguments & case law, unlike the WS that was the story of what happened.

Great, thank you! I'll try and get a draft up ASAP for some feedback.

Lop5

Hi all, here is an unfinished draft of my skeleton argument. I still need to add a few bits in such as CPRs etc, as well as an intro, summary and paragraph numbers. I just thought I'd post for feedback to make sure i'm heading in the right direction. Please let me know of any other case law that may support my case.


The defendant will address the Claimant’s Witness Statement (WS) which the Defendant avers is inaccurate, untruthful and contradictory.

The Paralegal who produced and submitted the WS on behalf of the Claimant commenced their employment for the Claimant in January 2019, 5 months after the alleged parking offence, therefore all of the information provided in the WS is not to their own knowledge and the facts stated by them cannot be classified as true. An example of this is evidenced in the Defendant’s WS paragraph 3 relating to page 22 of the Claimant’s WS whereby an inaccurate depiction of the car park, its spaces and the amount of signage has been provided. The Defendant has included as evidence to this document a Google Maps Satellite View which was not available at the time of producing their WS and could therefore not be included.

Paragraph 5 of the Claimant’s WS claims they are an Accredited Member of an Approved Trade Association (ATA) and received Approved Operator Status (AOS) by fully complying with the ATA’s Code of Practice (CoP) enabling them to obtain keeper information from the Driver and Vehicle Licencing Agency (DVLA). The claimant stipulates the CoP merely ‘gives recommendations’ whereas the Supreme Court in ParkingEye v. Beavis [2015] UKSC 67 found a CoP to be ‘binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA’. Therefore the CoP does not merely comprise ‘recommendations’, it effectively regulates an AOS and therefore full compliance is required to obtain DVLA data. Part B2 (2.1) of the International Parking Community (IPC) CoP states ‘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.’

The Defendant denies the signage within the car park meets the minimum standards stipulated by the CoP, therefore VCS have not fully complied with the IPC’s CoP and should have not been able to obtain data from the DVLA. In addition, the prolix text of varying sizes makes the signage illegible from a moving vehicle and from the parking space in which the vehicle was parked. There are an insufficient amount of warning signs within the carpark, with no signs located at the entrance, to the north or to the east. There are only 3 signs located within the car park, none of which are located in a way in which could be easily read upon entrance to the car park or from the bay in which the vehicle was parked. The defendant’s vehicle was facing to the north and therefore there was no signage distinctly visible from the parking bay. It is therefore denied the signage within the car park is adequate for the purpose of creating a legally binding contract.

The Claimant states in paragraph 7 of their WS the Defendant was confirmed as the driver of the vehicle whilst the vehicle was parked within the development (XXXXX). This statement is factually incorrect as the Defendant was only confirmed as the driver of the vehicle when an appeal was lodged with the Claimant on XXXX/2018 and the Defendant identified themselves as the driver of the vehicle.

Paragraph 9 of the Claimant’s WS implies the Claimant has the authority to implement a parking scheme on the land in which the car park is situated, however the contract the Claimant has provided in their evidence has an expiration date of 12 months from the date of 08/12/2017. The Claimant states due to clause 6.5 of the contract, the Claimant still has the authority to provide a parking control service and that the contract between the Claimant and the landowner is still ‘live’, however as the Claimant has not provided any evidence that they have not received a notice of termination from the landowner, the Claimant is again put to strict proof they have the necessary authorisation to issue parking charge notices (CN) and pursue payment by means of litigation.

The Claimant stipulates in paragraph 15 of their WS that there are 4 warning signs detailing the terms and conditions of the car park and these warning signs are visible upon entry to the car park. Again this statement is factually incorrect due to there only being 3 warning signs within the car park which is evidenced in the Defendant’s WS, none of which are visibly legible upon entry to the car park. Paragraph 16 states that there is sufficient and adequate signage, however the Claimant has given an inaccurate description of the car park including the amount of signage, the Claimant has clearly never been to this car park and therefore cannot comment on the sufficiency or adequacy of the signage.

Paragraph 18 and 19 describes ‘a card’ which was affixed to the Defendant’s windscreen on the specified date of the alleged contravention. According to The Protection of Freedoms Act 2012 (POFA 2012) Schedule 4 Para 7(2)(a) to (f) stipulates the requirements a Notice To Driver (NTD) must meet. The only requirement met by the Claimant is requirement 7(2)(f) as the notice does specify the time and date it was given. All other requirements have not been met. Para 7(4)(a) and (b) also stipulates a Notice To Driver must be given whilst the vehicle is stationary and before it is removed from the relevant land. The Claimant specifically states in in Paragraph 52 of their WS the card attached to the windscreen of the vehicle was merely a ‘warning card’ not a NTD as they state in Paragraph 53 the NTD is the Parking Charge Notice (PCN) issued on 24/08/2018, therefore the “warning card” does not satisfy the requirements of Para 7(2)(a) to (e) of POFA 2012 Schedule 4.

Paragraph 30 refers to Thornton v Shoe Lane Parking 1971 2 QB 163. The findings of this case are somewhat relevant to the current case, however not in the way the Claimant has described. The main judgement of this case found that the Claimant could only be bound by the terms known at that time, in this case upon the sign at the entrance to the car park, and not by any further terms printed elsewhere. Mr. Justice Mocatta states in the original case, ‘if you do desire to impose upon your customers stringent conditions such as these, the least you can do is to post a prominent notice at the entrance to the premises, warning your customers that there are conditions which will apply’, which Sir Gordon Willmer further endorses in his final conclusion of the appeal. In regards to the current case there are no such warning signs at the entrance to the car park and therefore an acceptance of contract cannot be made in relation to the terms set out on the Claimant’s signage.

‘By entering this private land you are entering into a contract with Vehicle Control Services Ltd.’
As there is no signage at the entrance to the car park, the Defendant could therefore not agree to the contractual offer as the Defendant would have to enter the car park to locate a sign which stipulates this contractual term. The signage is therefore inadequate for the purpose of creating a legally binding contract as the Defendant was unable to accept the term of the contract without physically entering the land. Therefore paragraph 34 of the Claimant’s WS is untrue; the Claimant has not done what is reasonable to draw attention to the existence of the contractual terms.

The quote included in paragraph 32 regarding Vine v Waltham Forest LBC [2002] 1 WLR 2383, 2390 is misquoted and misleading. Roch L.J. was merely referencing the arguments put to him before passing judgement and the paragraph the Claimant has quoted is the Respondent's argument in the original case. The full paragraph states
‘The respondents’ case is that the Recorder having found that the notice was clearly visible, it should be inferred that the Recorder concluded that the appellant saw the notice and consented to her car being clamped or voluntarily assumed the risk of that occurring. Alternatively, and this is the ground principally urged upon us by Mr Mott, the question whether a person voluntarily assumes a risk or consents to trespass to his or her property is to be judge objectively and not subjectively. Once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property.’

Roch L.J. does however go on to state in their judgement, ‘Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning.’ thus supporting the Defendant’s defence that the signage was inadequate in creating a legally binding contract due to the lack of warning signage at the entrance to the car park. The Defendant was not made aware of the terms and conditions of parking upon entrance to the car park and could therefore not have consented to such terms.

Paragraph 33 is strongly denied by the Defendant. The Defendant appealed to the Claimant 2 days after the alleged contravention which the Claimant acknowledges in paragraph 40 of their WS, therefore it is fallacious for the Claimant to state the Defendant failed to act upon each notice addressed to them as this is clearly not factually accurate.

Paragraph 47 of the Claimant’s WS inaccurately quotes an extract from their signage. ‘By parking or remaining on this private land you are entering into a contract with Vehicle Control Services Ltd.’, as mentioned previously and evidenced by the Claimant in their WS, the actual sign states: ‘By entering this private land you are entering into a contract with Vehicle Control Services Ltd.’ By entering the car park the Defendant had unknowingly entered into a contract with the Claimant as there is no signage at the entrance to the car park. Therefore there was no offer and acceptance of a contract.

Paragraph 50 states the amount of £100 for breaching the terms and conditions is the consideration of the contract. This statement is incorrect. The Defendant’s consideration is the agreement to pay the specified amount in order to park, in this case £1.50 per hour, which was paid on the specified date for an allotted period of 4 hours. The £100 charge levied by the Claimant’s CN is a penalty for breach of contract, thus the penalty rule is engaged. In this the case, the inflated £160 demand is extravagant and unconscionable and a clear punishment of a paying consumer.

Paragraph 57 incorrectly states there are 4 warning signs within the car park including one located at the entrance to warn motorists they are entering the car park subject to terms and conditions. There is no such sign located at the entrance to the car park evidenced in the Defendant’s WS. There is in fact a sign that reads “The Strawberry Car Park, Pay & Display, Entrance”. The Defendant would certainly not class this as a warning sign informing motorists of the terms and conditions of the car park they are about to enter.

The Defendant is unsure as to what document the Claimant is describing as ‘the first PCN’ in Paragraph 63, however by stating the Defendant ‘could not have been in any doubt, at worst, after the issue of the first PCN’ of the terms and conditions is a mute argument. As adduced by the Claimant in their WS Thornton v Shoe Lane Parking 1971 2 QB 163 establishes the Claimant could only be bound by terms known at the time, certainly not after the issue of a ‘first PCN’.

The Defendant would like to place significant emphasis on The Claimant’s quite blatant breach of The Data Protection Act 2018. As evidenced in the Defendant’s WS they have received numerous communications from a company known as Excel Parking Services Limited. This company is not the Claimant named on the County Court Claim Form, is not named on the warning signs demonstrated in the Claimant’s evidence nor the company named on the contract provided by the Claimant stipulating they were authorised to enforce parking management on the land situated at XXXXXXXX. The Defendant avers they did not give the Claimant authorisation to share their personal data.

The Claimant has failed to adhere to POFA 2012 Schedule 4, terminating their right to claim unpaid parking charges. The conditions stipulated in Paragraph 7, which must be met in order to enable the creditor to recover unpaid parking charges, have not been met.

7(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and the other facts that made those charges payable;
(c)inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—
(i)specified in the notice; and
(ii)no later than the time specified under paragraph (f);
(d)inform the driver of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(e)identify the creditor and specify how and to whom payment may be made;
(f)specify the time when the notice is given and the date.
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices each specifying different parts of a single period of parking).
(4)The notice must be given—
(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and
(b)while the vehicle is stationary,
by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.

The Claimant has failed to meet the conditions of Paragraph 7(2)(a)to(e) and 7(4)(a)and(b). The ‘warning card’ the Claimant states is not a NTD does not satisfy the conditions of POFA 2012 Schedule 4.

It is strongly denied that the Defendant entered into a contract with the Claimant. The signage in which the Claimant asserts is the basis of the contractual agreement is inadequate for the purpose of creating a legally binding contract. As previously mentioned, the Claimant inaccurately states there is a warning sign containing the terms and conditions of parking at the entrance to the site. There is no such sign. The specific wording of the signage renders the offeree of the contract incapable of accepting the contractual terms due to the lack of signage at the entrance. By entering the site the Defendant had already, unbeknown to them, entered into the contract. However, as there was no contractual offer upon entrance to the car park, the Defendant was unable to accept the contractual terms. Therefore due to the lack of offer and acceptance, no contractual licence was created. The Defendant again highlights the findings in Thornton v Shoe Lane Parking 1971 2 QB 163 and Vine v Waltham Forest LBC [2002] 1 WLR 2383, 2390.

It is also denied the wording on the signage satisfactorily sets out the terms in a sufficiently clear and discernible manner for the purpose of creating a legally binding contract. The Defendant brings to the courts attention the image of the signage which was deemed sufficient of creating a binding contract by the Supreme Court in the case of ParkingEye v. Beavis [2015] UKSC 67, evidenced on page 23 of the Defendant’s WS. The Defendant would like to highlight the difference in the text on each sign. The information and terms of parking on the Beavis case sign are set out in a clear manner, with succinct wording in large font sizes and a minimal amount of text which is easy to read and therefore hard to misinterpret. It is evident the signage presented as evidence by the Claimant has a great deal more text than the Beavis sign. The prolix text is of various font sizes, most of which are illegible unless standing directly in front of the sign. The excessive amount of wording in various font sizes creates a very haphazard and confusing document, which cannot be deemed sufficient of binding any reasonable person who attempts to read them from a moving vehicle into a contractual agreement.

Pursuant to POFA 2O12 Schedule 4 ‘The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).’
ParkingEye v. Beavis [2015] UKSC 67 upholds this as it was found that a parking company cannot recover damages as they do not own the land in which the alleged parking offence took place, as well as the case being brought as breach of contract and not for trespass. Therefore the £60 of fabricated ‘debt recovery charges’ or ‘damages’ as the Claimant refers to in
Paragraph 66 of their WS is unrecoverable. Lord Neuberger and Lord Sumption state:
‘As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.’ Therefore the only recoverable sum is the £100 stated on the signage if it is found that The Defendant did enter into a contract with the Claimant, which the Defendant denies as the signage was inadequate of creating a legally binding contract.

The final judgement of ParkingEye v. Beavis [2015] UKSC 67 is not applicable to this case as the circumstances involved in each case are distinctly different. The Beavis judgement focuses on the doctrine of penalties and found that each case is fact specific and to correctly test for a penalty will depend on the particular facts and circumstances established in each individual case. I refer the court to Paragraph 255 in which Lord Hodge states:
‘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 the case of Beavis the car park operated a scheme in which consumers could park for free for a period of 2 hours, whereas this case involves a pay and display scheme in which the consumer must pay a fee of £1.50 per hour to park. The Defendant reiterates that a fee of £6 was paid in order to park for a period of 4 hours, evidenced by the valid pay and display ticket the Defendant still possesses and which was presented as evidence to the Claimant as part of the appeal, making the Claimant aware that no monies were owed for the period of parking. The Supreme Court found that ParkingEye had a legitimate interest in charging an £85 fee which was to deter inconsiderate parking practices and to provide an income stream and make a profit. In this case the Claimant cannot claim they were serving a legitimate interest in charging the Defendant £100 as the Defendant paid to park and has proven this. The £100 charge is a clear punishment of a paying consumer who made every reasonable effort to comply with the terms of parking, therefore the penalty rule remains engaged and the court is urged to find the charge to be extravagant and unconscionable.

The Defendant also relies on Paragraph 1(e) of the Parking charges and the Unfair Terms in Consumer Contracts Regulations 1999 Schedule 2 whereby a term in a contract which may be regarded as unfair if it has the object or effect of ‘any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation’ and Paragraph 8.—(1) ‘An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.’.

In the case of ParkingEye Ltd v. Cargius 2014 Deputy District Judge C. Mahy also highlights that in cases such as these, claims are fact specific and judgement should be based on the individual circumstances of each case. The judgement distinguished the case from two previous ParkingEye Ltd cases as both cases dealt with free car parks and therefore the charges were found to be commercially justifiable as it was the only source of revenue received by the parking company; whereas in the case of Cargius, and also this case, the parking company charge a significant sum of money to park. Furthermore, the case of Cargius is distinguished from this case in that the Defendant owed £2 due to an overstay, whereas in this case the Defendant has proven that no monies were owed as they had a valid parking ticket for the time in which the alleged parking offence occurred. It was found that as the Claimant had brought the case to the County Court it was for them to prove that the £100 charge was reasonable and commercially justified. The final judgement found the £100 charge to be completely disproportionate to the level of loss, which in this case is nothing.


Thanks in advance!

beamerguy

Therefore the £60 of fabricated ‘debt recovery charges’ or ‘damages’ as the Claimant refers to in Paragraph 66 of their WS is unrecoverable

You are making too light of this fake £60

IT IS ABUSE OF PROCESS
Read this ....
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Pay particular attention to coupon-mad post # 14

You can see that judges have kicked out these fake claims as Abuse Of Process so YOU MUST highlight this to the judge and help him or her by advising of the cases