Premier Park Ltd Fine

Aib51

Ok will get onto it.

Aib51

Hi all, so I have burnt the midnight oil and have come up with my first draft. Please come back to me with comments and alterations. I would greatly appreciate it.
IN THE COUNTY COURT

CLAIM No: XXXXXXXX
BETWEEN:

Premier Park Ltd (Claimant)

-and-

XXXXXXXXX( Defendant)

DEFENCE

1. It is admitted that the Defendant was the driver of the vehicle in question at the time of the alleged incident.
2. It is believed that it will be a matter of common ground, that the claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXXXX when it was parked at Blue Ice Plaza Car Park, Solihull, West Midlands.
3. It is denied that the defendant has committed a breach of the terms of parking as alleged by the Claimant.
4. The PCN stated the contravention as “Whole period of parking not paid for.”
a) It is denied that this contravention took place as the defendant paid the £1 which covered 3 hours parking and was on site for less than an hour. As these were the terms and conditions displayed, the defendant complied with them and therefore denies agreeing to pay the PCN of £100.
b) It is denied that a contract was formed between Claimant and Defendant, to pay the parking charge.
c) It is denied that there was any agreement to pay additional sums added onto the parking charge by the claimant, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.
5. It is further denied that the Defendant is liable for the purported debt.
Rebuttal of Claim
6. a) The defendant paid for the parking, received a ticket from the machine and displayed it in the car.
b) The defendant followed the instructions on the machine, inputting the VRN and confirming it. Although a ticket was not needed, the defendant was not aware of this and believed that the payment had been accepted as a ticket was printed.
c) The failure of the machine to record either the correct time or the correct information relating to the parking ticket is not the Defendant’s responsibility. It is not reasonable in these circumstances for the driver to assume responsibility for proving payment, when the fault lies with the machine in question. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.
d) The Claimant after sending initial documentation relating to the case, refused to provide further evidence requested by the defendant that would have enabled the defendant to locate payment. This included specifics of which payments were allocated to which machines as this was not clear nor redacted VRNs outside of the time period they claim the car was on site (other VRNs were completely blocked out)nor photos that were sent to POPLA showing positions of machines, in which it was noted that the machine I had paid on , was not actually present.
7. The Claimant’s representatives, appear to have changed from PP Legal to BW Legal during the time of this case, without any explanation to the defendant who has been hounded by letters from both. Both, have artificially inflated the value of the Claim. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
a) The Claimant has at no time provided an explanation of the conduct that gave rise to the inflated costs or how the amount has climbed from £xx to £xx. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
b. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
8) The claimant is put to strict proof that they can evidence:
a) from the specific parking machine in question, that all monies collected that day were allocated to a VRN.
b) that the time readings on the ANPR and the parking machine in question were accurate.
c) that the machine in question was not at fault by showing the system they use for logging faults(as one of the readings on the documentation claims someone had a parking time of 3 hours and 8 minutes which is impossible according to their signage)
9) The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the claimant has been wholly unreasonable and vexatious.

I believe the facts stated in this Defence Statement are true.

Coupon-mad

Same advice as the other two Premier Park ones I just replied in in the last half hour, really! Please save me typing a la Groundhog Day stylee, and click on my username to read my posts tonight on 2 Premier Park threads at the exact same stage, already.

I suggest you attach the same Warwick Premier Park judgment/order that I told the other two to attach, and make sure your defence is as good as theirs and includes everything.

Which is your local court? Not Warwick or Soton? You are laughing if it is!

Aib51

Thank you Coupon Mad. I will get going on the second draft. I feel like I am learning a lot.

Aib51

Hi all but especially Coupon Mad. I am in Birmingham so near Warwick but not Warwick. here is my second draft. I have a few questions though. I have found the whole numbering/lettering confusing and haven't really understood the 'why' behind it. I have done my best but would appreciate it if you could see if my system makes sense.
I have included the stuff about signage even though I don't know whether it was legible or not. Is that standard to include that?
Also the paragraph about proprietary interest. Does that stand for all Private Parking companies?
Once again, thanks so much for your help. I need to get this off to them soon as I am away this weekend and the deadline is Monday.
IN THE COUNTY COURT

CLAIM No: XXXXXXXX
BETWEEN:

Premier Park Ltd (Claimant)

-and-

XXXXXXXXX( Defendant)

DEFENCE

1. It is admitted that the Defendant was the driver of the vehicle registration number xxxxxxxxx on the date of the alleged parking offence. The defendant denies that the Claimant is entitled to relief in the sum claimed.
2. It is believed that it will be a matter of common ground, that the claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle when it was parked at Blue Ice Plaza Car Park, Solihull, West Midlands.
3. It is denied that the defendant has committed a breach of the terms of parking as alleged by the Claimant.
4. The PCN stated the contravention as “Whole period of parking not paid for.”
a) It is denied that this contravention took place as the defendant paid the £1 which covered 3 hours parking and was on site for less than an hour. As these were the terms and conditions displayed, the defendant complied with them and therefore denies agreeing to pay the PCN of £100.
b) It is denied that a contract was formed between Claimant and Defendant, to pay the parking charge.
c) It is denied that there was any agreement to pay additional sums added onto the parking charge by the claimant.
5. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
Rebuttal of Claim
6. The defendant paid for the parking, received a ticket from the machine and displayed it in the car.
a) The defendant followed the instructions on the machine, inputting the VRN and confirming it. Although a ticket was not needed, the defendant was not aware of this and believed that the payment had been accepted as a ticket was printed.
b) The failure of the machine to record either the correct time or the correct information relating to the parking ticket is not the Defendant’s responsibility. It is not reasonable in these circumstances for the driver to assume responsibility for proving payment, when the fault lies with the machine in question. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.
c) The Claimant after sending initial documentation relating to the case, refused to provide further evidence requested by the defendant that would have enabled the defendant to locate payment. This included specifics of which payments were allocated to which machines as this was not clear, redacted VRNs outside of the time period they claim the car was on site (other VRNs were completely blocked out)and photos that were sent to POPLA showing positions of machines and signage, in which it was noted that the machine I had paid on , was not actually present.
7) The claimant is put to strict proof that they can evidence:
a) from the specific parking machine in question, that all monies collected that day were allocated to a VRN.
b) that the time readings on the ANPR and the parking machine in question were accurate.
c) that the machine in question was not at fault by showing the system they use for logging faults (as one of the readings on the documentation claims someone had a parking time of 3 hours and 8 minutes which is impossible according to their signage). Also there is a growing number of cases from this same car park, of faulty recordings of data inputted to the machines.
d) The Claimant is put to strict proof of full compliance that it has sufficient proprietary interest in the land under the correct address, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.
8. The Claimant’s representatives, appear to have changed from PP Legal to BW Legal during the time of this case, without any explanation to the defendant who has been hounded by letters from both. Both, have artificially inflated the value of the Claim. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts.
a) The Claimant has at no time provided an explanation of the conduct that gave rise to the inflated costs or how the amount has climbed from £100 to £241.46. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows. The purported added 'costs' are disproportionate, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.
b) Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third-party debt collector during the process
c) The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £166.46 debt. The arbitrary addition of a fixed sum purporting to cover 'contractual costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(i) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(ii) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
d) Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they were additional losses.
The Beavis case is against this Claim
e) Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.
f) The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.
g) In the Caernarfon Court in Case number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''
h) That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.
i) In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.
j) Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in the Beavis case. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''
k) BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.
l) That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(i) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(ii) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(iii) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.
m) At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.
n) A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''
9. Consumer notices - such as car park signs - are not excused by the CRA 'core exemption'. The CMA Official Government Guidance to the CRA says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.
a. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. [...] Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''
10. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.
a) The Judge determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' further, in issuing his Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.
11. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.
12. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.
13. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.
14. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third-party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.
15. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the claimant has been wholly unreasonable and upsetting.

I believe the facts stated in this Defence Statement are true.

beamerguy

Make certain you get the case heard in Warwick as that court seems to know about ABUSE OF PROCESS

BWLegal spanked in Warwick for ABUSE OF PROCESS
Deputy District Judge Josephs
CLAIM NUMBER: F5DP2D6Y dated 6th Dec 2019
CLAIM STRUCK OUT: REASON: ABUSE OF PROCESS
https://forums.moneysavingexpert.com/discussion/6079858/bw-legal-premier-park-thanks-for-all-your-help
See the actual court judgement in post #20

QDR (Part of Wright Hassall solicitors) spanked in Warwick court
for ABUSE OF PROCESS
https://forums.moneysavingexpert.com/discussion/6029649/claim-form-but-not-the-driver&page=4

Le_Kirk

I have found the whole numbering/lettering confusing and haven't really understood the 'why' behind it.

Just use simple numbering e.g. 1. 2. 3. 4 etc. This way, if you need to refer to anything in your defence (or later witness statement) you can just say "please refer to paragraph 7 in my defence" rather than "please refer to paragraph 7b sub-section 3 sub-para 2." I know you haven't gone that far but hopefully it emphasises the point that simple numbering is best.

nosferatu1001

Yep, exacctly as above
You number so you can talk about a specific part, without having to say "oh about 1/3rd the way dow npage 6 - got it?" every time
Simple numbering makes it even easier to see.

Aib51

Ok thank you. Will change it. A

Aib51

Can I choose Warwick then even though I live in Birmingham?