duplicate thread - ignore

Jlbourne

My hearing date is 14th August so need to get this off ASAP


Is the below OK? I really feel out of my depth with this. Any help/comments will be gratefully received. Thanks

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DEFENCE
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1. The Defendant was the registered keeper and driver of vehicle registration number AU65 WNB on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.


2. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct. The defendant never used the land to park and in fact never left the car, the Defendant was simply pulling over in the safest place along a busy main road, and the circumstances are set out below.

3. The facts of the matter are that the Defendant was approximately 30 weeks pregnant at the time and just minutes from leaving home, become unwell whilst driving, with two young children in the car. This car park was the safest place for the Defendant to stop and seek help. Although at the time the Defendants initial priority was to find a safe place to stop, it was not clear that the carpark had recently been taken over by ParkingEye and that the Defendant was required to enter registration details. Had this been clear the Defendant would have done exactly this as there is no charge for using this car park.


4. The circumstances which led to the Defendant using the car park were out of the Defendants control and after explaining this to Parking Eye in an appeal on 01/03/19 the Defendant was hoping that the Claimant would have had some understanding and cancelled the excessive charge under mitigating circumstances. Instead the Claimant’s only response to the appeal was a defence which included lots of legal terms and did not refer to any of the specifics about the Defendant being unwell proving that the Claimant had no interest in resolving the issue or understanding the unfortunate circumstances that led to this situation.


5. The Defendant would like to note their willingness to mediate this claim through small claims mediation. This would made almost impossible, the Defandant called the number on the information to book a phone call in however was told there was no available slots even though a deadline had not been issued.

5. 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.


6. 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.


7. In addition to the points above the Defendant has since been to visit the site and believes the terms on the Claimant's signage are also displayed 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. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.


8. According to the sparse signs in this car park, it now transpires that to avoid a Parking Charge and despite there being no Pay & Display machines or similar, visitors were expected to know to input their Vehicle Registration Number (VRN). This was far from clearly signed and the purported keypad was nowhere to be seen.


9.1. Prior to the Defendant's visit, ParkingEye had recently placed their signage within the car park creating new terms and conditions for motorists. Their Trade Body Code of Practice states at 18.11: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.''


9.2. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation to use an iPad, or risk £100 penalty. The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''


10.1Upon receiving the claim, the Defendant researched this all too common issue and was advised to complain to the landowner. Unsurprisingly, this was conspicuous by its absence as an option offered by ParkingEye in their signs or paperwork, prior to commencing proceedings.


10.2 This fact was later confirmed in all readings of the Private Parking Code of Practice Bill, from February 2018 to date, where MPs universally condemned the entire industry as operating 'an outrageous scam' typically relying upon hidden, punitive terms that purposely rely on drivers not seeing an unexpected obligation. Both the British Parking Association ('BPA') Trade Body and indeed, ParkingEye themselves were specifically named and shamed more than once in Parliament and the Bill was introduced purely because the industry is out of control, self regulation has failed, and in many cases any 'appeal' is futile.



11. This case is fully distinguished in all respects from ParkingEye Ltd v Beavis [2015] UKSC 67. That Supreme Court decision sets a high bar for parking firms, not a blanket precedent, and the Beavis case essentially turned on a 'complex' and compelling legitimate interest and very clear notices, where the terms were held not to involve any lack of good faith or 'concealed pitfall or trap'. Completely unlike the instant case.


12. In addition, there can be no cause of action in a parking charge case without a 'relevant obligation' and/or 'relevant contract' (the Protection of Freedoms Act 2012, Schedule 4 refers). Expecting a driver to somehow realise they need to input their VRN into an unseen keypad, in what the consumer is confident is an unrestricted free car park for patrons with no visible machines of any description, is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.




13. If a parking firm was truly acting in good faith and keeping the interests of consumers at the heart of their thinking, they would concentrate on ensuring firstly, that patrons could not miss the keypad(s) and secondly, could not miss the fact that, if they did receive an unfair PCN, they had a right to ask the landowner/Managers to cancel it. Clearly the Claimants interest is purely in misleading members of the public and extracting as much money as possible in three figure penalties, given that this is the only way ParkingEye make any money.

14.1 The Claimant's negligent or deliberately unfair business practice initially caused the unfair PCN to arise, then the Claimant's silence regarding the simple option of landowner cancellation rights, directly caused these unwarranted proceedings. This Claimant cannot be heard to blame consumers for not trying a futile 'appeal' to them, whilst themselves hoping the Defendant does not discover that ParkingEye withheld the option of landowner cancellation all along.

14.2. By failing to adequately alert patrons to the keypad, and then withholding from the registered keeper any/all information about the 'user agreement' with the landowner which would have enable an immediate route of cancellation, are 'misleading omissions' of material facts. These are specific breaches of the Consumer Protection from Unfair Trading Regulations 2008 and transgress the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (this relatively untested legislation was enacted after the final hearing in Beavis and not actively considered in that case). As such, this claim must fail.


15. The Defendant has the reasonable belief that the Claimant has not incurred £75 costs to pursue an alleged £100 debt. The Protection of Freedoms Act 2012, in Schedule 4, Para 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.

16. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.







Statement of Truth:

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

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