County Court Defence - Overstay

wizzybee

Le_Kirk wrote: »

Jomot pointed you to the most recent defences written by Bargepole here: -

I am not defending for unclear signs due to small font or being high up, I am disputing the fact that you have to enter the car park to see what the T&Cs are and by entering the car park you have already apparently agreed to them.

Is the Parking eye vs Cargius case any use here?

Amended defence:

IN THE COUNTY COURT

CLAIM No: xxxxx

BETWEEN:

VEHICLE CONTROL SERVICES (Claimant)

-and-

xxxxxx (Defendant)

________________________________________
DEFENCE STATEMENT

The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
1) The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). 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.
2) The driver has not been evidenced on any occasion and there is no presumption in law that the keeper was the driver. The keeper is not obliged to name the driver to a private parking firm which was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
3) It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.
4) 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.
5) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
6) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
7) 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.
8) Further and in the alternative, it is denied that the Claimant’s signage is capable of creating a legally binding contract.
9) A sign is present on the left hand side of the entrance, away from the driver, and therefore cannot be easily read by the driver of a passing vehicle. On closer inspection this sign states ’Refer to the Terms & Conditions signs located at the Parking Meter(s)’. At the parking meters signs are located so that information is often obscured by other parked cars and is difficult to read. These signs state ‘By entering this private land you agree to pay a Parking Charge if you fail to comply with the terms and conditions...’ Therefore, the driver is deemed to have agreed to the terms and conditions by having entered the car park before knowing what those terms and conditions are. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.
10) For all Pay and Display parking facilities owned by Sheffield City Council, including many on-road spaces in the vicinity of the car park in this case, the charges for overstay are initially £25 compared to the Claimaint’s £100. As the Claimant’s charge is 400% greater than that which a motorist could expect to pay for overstaying in a municipal facility it clearly disproportionate for the area.
11) 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.
12) In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. 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

Coupon-mad

86 minutes in a 60 minute free car park is a hard one to defend. How will the Defendant distinguish this case from Beavis?

Le_Kirk

wizzybee wrote: »

I am not defending for unclear signs due to small font or being high up, I am disputing the fact that you have to enter the car park to see what the T&Cs are and by entering the car park you have already apparently agreed to them.

In which case, use the defence by Bargepole and add/amend the points about unclear signage to suit your particular situation.

wizzybee

Coupon-mad wrote: »

86 minutes in a 60 minute free car park is a hard one to defend. How will the Defendant distinguish this case from Beavis?

It is free for the first hour then £1 for the second. Beavis was for a totally free car park.

Coupon-mad

Good - now you are talking!

That's exactly the scenario that the Court of appeal stage Judges (pre Supreme Court hearing stage) in Beavis said ParkingEye would not do, as £1 would not be worth pursuing!

You need to read the Court of appeal stage transcript to find how those Judges put it, as we recall they did (we read every word, sad isn't it!).

wizzybee

Thanks Coupon-mad!

I have added in another couple of paragraphs about unclear signage. A couple of things that I am not sure about:
- Do I need to state at the beginning that the car overstayed? It is genuinely not known who was driving at the time as this is a shared car but it is likely that the driver was intending to stay for less than an hour.
- do I need to say anything about VCS proving that a ticket was not 'purchased'?


IN THE COUNTY COURT

CLAIM No: xxxxx

BETWEEN:

VEHICLE CONTROL SERVICES (Claimant)

-and-

xxxxxx (Defendant)

________________________________________
DEFENCE STATEMENT

The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
1) The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). 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.
2) The driver has not been evidenced on any occasion and there is no presumption in law that the keeper was the driver. The keeper is not obliged to name the driver to a private parking firm which was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
3) It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.
4) 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.
5) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
6) The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
7) 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.
8) Further and in the alternative, it is denied that the Claimant’s signage is capable of creating a legally binding contract.
9) A sign is present on the left hand side of the entrance, away from the driver, and therefore cannot be easily read by the driver of a passing vehicle. On closer inspection this sign states ’Refer to the Terms & Conditions signs located at the Parking Meter(s)’. At the parking meters signs are located so that information is often obscured by other parked cars and is difficult to read. These signs state ‘By entering this private land you agree to pay a Parking Charge if you fail to comply with the terms and conditions...’ Therefore, the driver is deemed to have agreed to the terms and conditions by having entered the car park before knowing what those terms and conditions are. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.
10) The wording on signs is unclear regarding purchase of a ticket. There is nothing on the sign at the entrance to the car park indicating the costs for staying in the car park, only that the maximum stay is 2 hours. On the signs next to the pay and display machines it states ‘Tariff: Up to 1 hour FREE; Up to 2 hours £1’ It also states that ‘To park in excess of the free 1 hour period a valid ticket must be purchased on arrival’. If a driver is not intending to stay beyond 1 hour it is not clear that a ticket needs to be purchased; something that is free does not need to be purchased.
11) The Claimant would have been satisfied with receiving £1 for up to 2 hours parking and a subsequent charge of £100 is disproportionate to the level of the Claimant’s loss and is therefore a penalty not a Parking Charge.
12) For all Pay and Display parking facilities owned by Sheffield City Council, including many on-road spaces in the vicinity of the car park in this case, the charges for overstay are initially £25 compared to the Claimaint’s £100. As the Claimant’s charge is 400% greater than that which a motorist could expect to pay for overstaying in a municipal facility it clearly disproportionate for the area.
13) 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.
14) In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. 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

Redx

Remove the spurious word statement that is after the word defence

Coupon-mad

Apart from the word 'statement' to be removed from the heading, the defence is good IMHO. I'd add here:

11) The Claimant would have been satisfied with receiving £1 for up to 2 hours parking and a subsequent charge of £100 is disproportionate to the level of the Claimant’s loss and is therefore a penalty not a Parking Charge.

11.1). This scenario is far removed from the facts in ParkingEye Ltd v Beavis [2015] UKSC67, where in fact the Court of Appeal decision transcript (which stands, as it was not overturned by the Supreme Court) included remarks from the learned Judges stating at #25 that: ''The present case throws up considerations of an entirely different character from those which arise in the ordinary commercial context. Viewed in purely financial terms, ParkingEye suffers no direct financial loss if an individual motorist overstays the period of free parking, because it has no interest in the land over which the licence is granted and suffers no immediate loss in terms of income that might otherwise have been derived from another motorist using the car park, as it would if customers were charged a flat rate for using it.[...] Moreover, although it would in theory be possible to charge motorists a much more modest amount for overstaying the free period, it would be wholly uneconomic to enforce such charges by taking legal proceedings against them.''

11.2). And at 44/45, the Court of Appeal held: ''All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract by one party or the other...[...] 45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land. The operator affords the driver a free facility.''

11.3). And at #47 in the Court of Appeal Approve Judgment: ''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, 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.” Lord Dunedin referred to this in his proposition 4(b) in Dunlop v New Garage[1915] AC 79, at 87.

11.4). In the instant case, the signs show that customers were to be charged a flat rate of £1 for using it for a second hour. This is an alleged contract 'of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms', as it is an 'ordinary financial or commercial contract' where there was (according to the signs as drafted) a £1 economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours. That the potentially recoverable claim can and should only be for the nominal sum of £1 - if the overstay allegation is shown to be true and not mere minutes covered by the mandatory Trade Body grace period - is a difficulty of the Claimant's own making, in setting up these car park tariffs in a completely different way from the arrangements in Beavis. As was stated in Beavis, although it would in theory be possible to charge motorists a much more modest amount for overstaying the free period, it would be wholly uneconomic to enforce such charges by taking legal proceedings against them. Thus, this Claimant's claim must fail because they have created exactly the type of penalty regime that the Court of Appeal and Supreme Court held falls foul of the penalty rule which it was said, remains engaged in all parking charge cases.

Court of Appeal Approved Judgment:

https://www.judiciary.uk/wp-content/uploads/2015/04/parkingeye-v-beavis-judgment.pdf

wizzybee

That's brilliant, - thanks!

- Do I need to state at the beginning that the car overstayed? It is genuinely not known who was driving at the time as this is a shared car but it is likely that the driver was intending to stay for less than an hour.
- do I need to say anything about VCS proving that a ticket was not 'purchased'?

Coupon-mad

No and no, let it progress and more can be covered at WS & evidence stage. This is their claim to prove.