Received County Court Business Centre Claim

waamo

They can't hijack you with new evidence. If they have shown an incorrectly dated contract giving authority then that's what they have to run with. A golden rule in court is no surprises. It's absolutely not allowed.

The signage point is actually a strong argument. There is no reason on earth to erect more signs on a well signed site. It makes no sense whatsoever. Why would they do that?

Not_so_old_oldie

I've just read the CEC16 court report as posted by Coupon Mad. Looks like I'll be breaking out the double claim defense too:
1. The Claimant knew or should have known, that £160 charge against a registered keeper who was not driving, was in breach of POFA, due to paras 4(5) and 4(6).
2. The Claimant knew or should have known, that £160 charge was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
3. The Claimant knew or should have known, that £160 charge where the signs did not specify a sum for this vague add-on, is void for uncertainty...AND in breach of the Consumer Rights Act 2015, Schedule 2 (the grey list of terms that may be unfair) paras 6, 10 and 14.
and ensure I have: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

An interesting point here is that VCS is IPC regulated and not BPA, does that make any difference?

Coupon-mad

Now you are talking!

I was about to point that out as no-one here on this forum at WS stage should be posting ''my worry here is that I'm now relying on x''.

Also, did you know that this business model you describe below, was mentioned in the Beavis case as being 'entirely different' with a quantifiable loss? i.e. you can use the Beavis case to show this case is not saved by it, if you get your head around the issue they have:

Para 3. Signage at the car park states the max period is 2 hours. 1st hour free however motorists need to pay for second hour.

How about searching the forum for ANOTHER VCS ONE BITES THE DUST and reading the recent beatings of VCS?

railwaytaverncustomer

Great thread. Hope you win.

I will be using lots of this for my defence. Did my AOS last week. Did not realise defence needs to be within 28 days of claim form being served. I thought 28 days after doing AOS.

Thanks to everyone involved with the parking forum. Lotta good info.
I've received Claim Form from CCBC so need to make my own thread right?

Sorry to hijack.

Thanks again everyone.

KeithP

railwaytaverncustomer wrote: »

I've received Claim Form from CCBC so need to make my own thread right?

Yes please do.

And on that thread please tell us the Issue Date on your County Court Claim Form.

Not_so_old_oldie

@railwaytaverncustomer - yep, start your own thread and get the support from these awesome folk for your own case.

@coupon mad, just been going through some of the VCS cases. I'm not sure I do get the Beavis case reference however. "business model ...'entirely different' with a quantifiable loss".
Beavis was parking for free for a period upto a specified limit, and therefore the defense of no loss to the company wouldn't be taken by the courts.
Are you stating that where the business model is "free for 1 hour, pay £1 for the second" this model actually could state that the loss of revenue to the business is actually only £1 and therefore a specific loss totaling £1 is potentially the maximum that should be granted by a DJ?
In these cases a charge of £60 for overstaying the initial free period into the second hour would be wholly unrepresentative of the loss to the firm?

Coupon-mad

Are you stating that where the business model is "free for 1 hour, pay £1 for the second" this model actually could state that the loss of revenue to the business is actually only £1 and therefore a specific loss totaling £1 is potentially the maximum that should be granted by a DJ?

Yep, and that was said at the earlier (pre-Supreme Court) Court of Appeal stage in Beavis!

Not_so_old_oldie

two things:
1. Should a WS include any photos of the site now it has changed since the date of the alleged breach?

2. The PDT evidence in their WS shows that 67% of people have inputted their details into the machines even when only staying for less than one hour. If the signage was sufficiently clear you wouldn't expect anyone to have done that as there is only a need to input your reg when paying. Is this worth including?

FYI: The number of boards has doubled from 6 (in their WS) to 12 today (no doubt as a result of Bananasparking VCS win on 9th Janhttps://forums.moneysavingexpert.com/discussion/6030886/county-court-claim-vcs)

Coupon-mad

Yes include all of the above observations.

Re this:

Are you stating that where the business model is "free for 1 hour, pay £1 for the second" this model actually could state that the loss of revenue to the business is actually only £1 and therefore a specific loss totaling £1 is potentially the maximum that should be granted by a DJ?

Yep, and that was said at the earlier (pre-Supreme Court) Court of Appeal stage in Beavis!

To help you use some relevant quotes from the Beavis case CoA stage, which might be harder for you to track down than the Supreme Court final decision, I dug this wording out from an old 2017 POPLA appeal from this forum where this point was made by an appellant (note, the word 'defendant' was not used in this case example, as this was appeal stage):


The Beavis decision is not a silver bullet and it cannot be twisted to strike out the majority of private parking ticket appeals and certainly not those which are regarding a fee-per-hour site where the alleged loss (tariff) begins as a very easy to identify, tangible sum.

In a standard economic dispute over a financial transaction between a consumer and a trader, like this one, the loss is easily calculable.

By stark contrast, the contract offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from this sort of financial contract flowing from alleged non-payment of a quantifiable sum.

As regards the Beavis case, it was made plain that the 'penalty rule' is certainly 'engaged' in parking ticket cases and the facts of each case will determine if the penalty rule has been disengaged. The penalty rule could have been abolished in the Beavis case but abolition of that 'useful tool' was very deliberately NOT the case.

In complex contracts (in that case, a free car park with a licence to park but no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. The parking firm have failed to demonstrate any other wider commercial or socio-economic justification for this exorbitant escalation clause and POPLA cannot make their case for them, therefore the charge remains unenforceable under the penalty rule.

But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all. So the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'. If that was the case, then every alleged underpayment of a quantifiable sum between any trader and consumer could be escalated x 100. If you underpay your paper bill by £1 - the amount due remains at £1, same as in this case - it cannot escalate to £100 and this is because the Beavis case rationale does not apply to 'standard' financial contracts. The Court of Appeal and Supreme Court Judges made that very clear.

In Beavis, a major difference which made it more complex than standard contracts, was that there was no small sum owed and so, to reach their decision, the Judges had to consider other interests. None of the reasons that gave Parking Eye a legitimate interest which disengaged the 'penalty rule' in their case against Mr Beavis are present in this material case, in which the penalty rule remains firmly engaged and where there is a quantified tariff in play.

The Judges set apart the Beavis contract from this type of 'simple financial contract'. This is one the Judges had seen many times before, where there is a quantified small sum at stake in the first instance as a result of a primary obligation. This sort of contract was not under discussion in the Beavis case.

The penalty rule is clearly engaged in this case of a standard contract with a quantified tariff, but unlike in Parking Eye v Beavis it is not disengaged by the parking firm merely pointing to the Beavis case as if it has blanket relevance (otherwise your local paper shop could point to the Beavis case regarding that £1 underpaid paper bill, as could any trader over any small sum owed). Clearly the 'tweet' from the Supreme Court on the day that their decision was handed down, made it clear that was not the intention of the judgment which turned on its own facts regarding a complex set of circumstances, relevant to a complex contract of its kind only.

At the Court of Appeal stage, when addressing the issue of pre-estimate of loss versus commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss [...] is inappropriate.”

In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd stated at paragraph 47 that, “[...] the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with,...”.

The Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.''

Here, this is one of those cases Courts have seen many times before, a simple contract of a 'financial/economic nature' and the only interest the parking firm has in enforcing their £100 charge instead of any 'outstanding tariff' is profit alone.

This position is reinforced in the earlier findings in the Beavis case from the Court of Appeal, where the judgment states:

"44. 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...

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...''

47. ...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...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.”

The Consumer Rights Act 2015 shows this case law still holds because it includes the fact that a consumer cannot lawfully be expected to pay a disproportionate sum in compensation for a small sum owed. This is the fundamental legislation relating to standard contracts between traders and consumers (it was not enacted until after the Supreme Court hearing in Beavis) and it is undoubtedly applicable to this case in more than one way.

The ParkingEye v Beavis judgment makes clear that the Court of Appeal would have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before.

'ENTIRELY DIFFERENT'. So without displaying intellectual dishonesty or copy/pasting skewed 'guidance' from the BPA or another parking industry interested party, I suggest that it would be impossible to apply ParkingEye v Beavis to this standard economic contract. As the parking firm have shown no other compelling reason or rationale for escalating a small sum parking tariff to £100, they fall foul of the penalty rule...just as ParkingEye would have, if they had taken a 'standard contract' case to Supreme Court level.

Not_so_old_oldie

Ok, so that adds about 1,000 words to the defense.
I keep reading that the length of the WS shouldn't be too long, as it may mean the DJ will not read it all.