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HX Car Park Management Court Defence
ZedPee
Posts: 6 Forumite
Hello you good people
We are currently fighting a parking ticket from HX Car Park management that was issued in January 2019.
We have been using the helpful posts on this site, and we are now at the point where we have had to compose our own defence for ourselves against HX at a county court.
Very briefly, we parked up in a car park in Yorkshire (we were not familiar with the town, our first visit to this place) unbeknown to us there was a ten minute grace period in which we were buy a ticket from entering the car park (familiar story. huh?) due to personal circumstances (a very upset toddler, us getting our bearings and us DEFINITELY not seeing anything that said we had to buy a ticket) we got our ticket 3 minutes late, but paid for 3 hours to stay and returned sooner than that time was up.
The first time we were aware was when we received the PCN through the letter box.
We would appreciate it if anyone who has had this happen to them and had to face these people in court, that what we have put in our defence sounds correct.
Thank you in advance.
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Defendant is not the registered keeper of the vehicle in question, yet is a named driver. The Claim relates to an alleged debt in damages arising from the driver's alleged breach of contract, when parking at X on X.
3. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper/driver of the vehicle 'not purchasing the appropriate parking time'.
4. The Particulars of Claim state that the PCN is being claimed from the Defendant “as the driver of the Vehicle” and that the “driver of the Vehicle agreed to pay the PCN within 28 days of issue”. The Particulars of Claim vaguely refer to a “breach of contract”, yet do not specify how the terms were breached. The requirements of Practice Direction 16 7.5 have not been met in these vague assertions, and a Cause of Action has not been identified.
5. 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.
6. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner. The terms on the Claimant's signage are displayed on the side of a tight entrance in which a vehicle turns from a busy road into the car park. It is located in such a place which would be difficult to read from a
turning vehicle, and is in such a position that anyone attempting to stop the vehicle and read the font would be unable to do so without blocking the entrance/exit, and possibly causing an accident within the busy street.
7. The terms on the Claimant's signage are in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. The wording on these signs is not consistent on the sign adjacent to the PDT Machine. It is, therefore, denied that the
Claimant's signage is capable of creating a legally binding contract.
7a. The Claimant apparently seeks damages in relation to the drivers vehicle being captured on ANPR cameras entering the car park at X and not purchasing a ticket until X.
7b. The Claimant stated in rejecting the initial PCN appeal that ‘As per all the signs on the car park, a pay and display ticket must be bought within 10 minutes of entering the car park. All the signs in and around the site inform the driver of the terms and conditions of using this car park. Any breach of the terms and
conditions will result in the driver being liable for a £100 PCN.’
7c. The photograph of a sign displayed in the car park at X provides information on what a Parking Charge Notice will be issue for. It DOES NOT clearly state that a Parking Charge Notice will be issued if a ticket is not purchased within 10 minutes.
7d. The defendant purchased a ticket for 3 hours. The ANPR images used by the Claimant show the Defendant entered the car park at X and left at X. Having paid for 3 hours parking and used (Less time than we occupied) X I put it the Court that the Defendant has acted in good faith having paid for the full use of the parking space occupied. That the Claimant has no basis to seek further payment when their signage is not clear as to what they will issue PCN’s for other than in a frivolous attempt to increase their revenue.
8. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.
9. The Protection of Freedoms Act 2012, Schedule 4, at Section 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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at
double recovery.
9a. Whilst quantified costs can be considered on a standard basis, the Claimant's costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all.
Unsigned letters received from Gladstones Solicitors were a standard feature of a low cost business model. ParkingEye v Beavis [2015] ruled that Claimants are the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.
The Claimant cannot reasonably recover an additional (partially invented)
£X in costs to pursue an alleged £100 debt. POFA states that the maximum sum that may be recovered is the charge stated on the Notice to Keeper, in this case £100 (this sum also being the ceiling allowed by the BPA) and thus £100 is the maximum sum potentially recoverable under contract, regardless of whether the illegible small print on the signs attempted to bolt on a further sum.
Even the purported £X 'legal costs' are made up out of thin air. No individual
Director or solicitor has signed the Particulars of Claim - in breach of Practice
Direction 22, and rendering the statement of truth a nullity - and this template roboclaim has clearly had no input from any supervising Solicitor, whether in house or externally. 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 costs allegedly incurred by already remunerated clerical staff.
10. In summary:
10a. The charge being sought by the Claimant is exorbitant when considering that the Defendant paid for more time than was used. The money they are seeking is disproportionate to any breach of contract they claim was entered into. To initially request £100 (£60 if paid within 14 days) with the threat of it increasing significantly if appealed. The Defendant explained their circumstances and that they paid as soon possible.
10b. The Claimant could have considered both the Defendants circumstances on the day and the fact that the Defendant paid for the full use of the car parking space occupied. The amount of time the Defendant left unused exceeded the time it took to purchase a ticket. The land owner and/or car park operator(Claimant) suffered no financial loss as a result of any action by the Defendant. The only financial loss the Claimant has incurred is through seeking payment for a charge/invoice that they have made and these ‘costs’ are of their own making and should not be transferred to the Defendant when had the Claimant not acted in an unscrupulous manner they would have not incurred any ‘costs’ and dismissed the PCN upon the Defendants first appeal.
10c. It can be assumed that as the operator the Claimant knew the content of each of the signs displayed in X. Including the lack of information on the sign by the ‘pay and display’ machine that made no mention of a PCN being issued if a ticket was not purchased within 10 minutes of arrival/parking.
10d. It is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.
I believe the facts contained in this Defence are true.
Name
Signature
Date
We are currently fighting a parking ticket from HX Car Park management that was issued in January 2019.
We have been using the helpful posts on this site, and we are now at the point where we have had to compose our own defence for ourselves against HX at a county court.
Very briefly, we parked up in a car park in Yorkshire (we were not familiar with the town, our first visit to this place) unbeknown to us there was a ten minute grace period in which we were buy a ticket from entering the car park (familiar story. huh?) due to personal circumstances (a very upset toddler, us getting our bearings and us DEFINITELY not seeing anything that said we had to buy a ticket) we got our ticket 3 minutes late, but paid for 3 hours to stay and returned sooner than that time was up.
The first time we were aware was when we received the PCN through the letter box.
We would appreciate it if anyone who has had this happen to them and had to face these people in court, that what we have put in our defence sounds correct.
Thank you in advance.
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
2. The Defendant is not the registered keeper of the vehicle in question, yet is a named driver. The Claim relates to an alleged debt in damages arising from the driver's alleged breach of contract, when parking at X on X.
3. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper/driver of the vehicle 'not purchasing the appropriate parking time'.
4. The Particulars of Claim state that the PCN is being claimed from the Defendant “as the driver of the Vehicle” and that the “driver of the Vehicle agreed to pay the PCN within 28 days of issue”. The Particulars of Claim vaguely refer to a “breach of contract”, yet do not specify how the terms were breached. The requirements of Practice Direction 16 7.5 have not been met in these vague assertions, and a Cause of Action has not been identified.
5. 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.
6. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner. The terms on the Claimant's signage are displayed on the side of a tight entrance in which a vehicle turns from a busy road into the car park. It is located in such a place which would be difficult to read from a
turning vehicle, and is in such a position that anyone attempting to stop the vehicle and read the font would be unable to do so without blocking the entrance/exit, and possibly causing an accident within the busy street.
7. The terms on the Claimant's signage are in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. The wording on these signs is not consistent on the sign adjacent to the PDT Machine. It is, therefore, denied that the
Claimant's signage is capable of creating a legally binding contract.
7a. The Claimant apparently seeks damages in relation to the drivers vehicle being captured on ANPR cameras entering the car park at X and not purchasing a ticket until X.
7b. The Claimant stated in rejecting the initial PCN appeal that ‘As per all the signs on the car park, a pay and display ticket must be bought within 10 minutes of entering the car park. All the signs in and around the site inform the driver of the terms and conditions of using this car park. Any breach of the terms and
conditions will result in the driver being liable for a £100 PCN.’
7c. The photograph of a sign displayed in the car park at X provides information on what a Parking Charge Notice will be issue for. It DOES NOT clearly state that a Parking Charge Notice will be issued if a ticket is not purchased within 10 minutes.
7d. The defendant purchased a ticket for 3 hours. The ANPR images used by the Claimant show the Defendant entered the car park at X and left at X. Having paid for 3 hours parking and used (Less time than we occupied) X I put it the Court that the Defendant has acted in good faith having paid for the full use of the parking space occupied. That the Claimant has no basis to seek further payment when their signage is not clear as to what they will issue PCN’s for other than in a frivolous attempt to increase their revenue.
8. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.
9. The Protection of Freedoms Act 2012, Schedule 4, at Section 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. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at
double recovery.
9a. Whilst quantified costs can be considered on a standard basis, the Claimant's costs are wholly disproportionate and do not stand up to scrutiny. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all.
Unsigned letters received from Gladstones Solicitors were a standard feature of a low cost business model. ParkingEye v Beavis [2015] ruled that Claimants are the authority for recovery of the parking charge itself and no more, since that sum is, by definition, already hugely inflated for profit, not loss, and the Judges held that a parking firm not in possession cannot plead their case in damages, as none exist.
The Claimant cannot reasonably recover an additional (partially invented)
£X in costs to pursue an alleged £100 debt. POFA states that the maximum sum that may be recovered is the charge stated on the Notice to Keeper, in this case £100 (this sum also being the ceiling allowed by the BPA) and thus £100 is the maximum sum potentially recoverable under contract, regardless of whether the illegible small print on the signs attempted to bolt on a further sum.
Even the purported £X 'legal costs' are made up out of thin air. No individual
Director or solicitor has signed the Particulars of Claim - in breach of Practice
Direction 22, and rendering the statement of truth a nullity - and this template roboclaim has clearly had no input from any supervising Solicitor, whether in house or externally. 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 costs allegedly incurred by already remunerated clerical staff.
10. In summary:
10a. The charge being sought by the Claimant is exorbitant when considering that the Defendant paid for more time than was used. The money they are seeking is disproportionate to any breach of contract they claim was entered into. To initially request £100 (£60 if paid within 14 days) with the threat of it increasing significantly if appealed. The Defendant explained their circumstances and that they paid as soon possible.
10b. The Claimant could have considered both the Defendants circumstances on the day and the fact that the Defendant paid for the full use of the car parking space occupied. The amount of time the Defendant left unused exceeded the time it took to purchase a ticket. The land owner and/or car park operator(Claimant) suffered no financial loss as a result of any action by the Defendant. The only financial loss the Claimant has incurred is through seeking payment for a charge/invoice that they have made and these ‘costs’ are of their own making and should not be transferred to the Defendant when had the Claimant not acted in an unscrupulous manner they would have not incurred any ‘costs’ and dismissed the PCN upon the Defendants first appeal.
10c. It can be assumed that as the operator the Claimant knew the content of each of the signs displayed in X. Including the lack of information on the sign by the ‘pay and display’ machine that made no mention of a PCN being issued if a ticket was not purchased within 10 minutes of arrival/parking.
10d. It is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.
I believe the facts contained in this Defence are true.
Name
Signature
Date
0
Comments
-
(a very upset toddler, us getting our bearings and us DEFINITELY not seeing anything that said we had to buy a ticket) ***SHOULD READ WITHIN 10 MINUTES0
-
Your defence should be written in the third person, mostly you are OK (as you've borrowed form one of the defences in the NEWBIE thread) but you've slipped in a couple of "I" which should be "the defendant."0
-
What is the Issue Date on your Claim Form?
Did it come from the County Court Business Centre in Northampton, or from somewhere else?0 -
Nine times out of ten these tickets are scams so complain to your MP.
Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.You never know how far you can go until you go too far.0 -
The vehicle was not parked for the whole period claimed by the scammers. It took several minutes after entering the car park, driving around looking for a space, before the parking event actually began.
The same is true after the parking event had ended, but before the vehicle exited the car park.
ANPR cameras do not recorded parking time, only time on site.
In the case, 3JD08399 ParkingEye v Ms X. (Altrincham 17/03/2014). Fistral Beach. The defendant spent 31 minutes waiting for a car park space during the crowded holiday season. The ANPR evidence was therefore not relevant as it showed the time in the car park, not the time parked. The judge ruled this was not against the terms and conditions of the signage.
The grace period is provided for motorists to get out of their vehicle, locate and walk to the signs, read them and determine whether they wish to stay, and pay where appropriate, before returning to their vehicle. Sometimes it is necessary for a motorist to read more than one sign, plus information on payment machines.
There was also another case where the judge states the parking contract "offer" is made by the signs, and "acceptance" is made when payment is made. He goes on to say that the parking period begins when payment is accepted by the machine. I can't remember which case it was or the specific wording used, but perhaps one of the other regulars will remember it.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Yes it's from Northampton & is dated from 07/05/190
-
With a Claim Issue Date of 7th May, you have until Tuesday 28th May to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.Yes it's from Northampton & is dated from 07/05/19
Having done the AoS, you have until 4pm on Monday 10th June 2019 to file your Defence.
That's over two weeks away. Loads of time to produce a perfect Defence, but don't leave it to the last minute.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
- Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
0 - Sign it and date it.
-
-
Hi, thanks for your reply.
I contacted my own MP and that of the town. They weren’t much help tbh, the MP of the town this took place couldn’t help me because I’m not a member of their constituency. My own MP contacted HX on my behalf who said ‘out of good will’ they would let me pay £100 instead of the rest of the charges being put on us.
The MP sent me this reply from them nearly two weeks later in which time the CCJ had already been delivered. In other words they were no help at all and have since ignored any other correspondence I have sent to them0
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