Parking Eye CCJ Challenge

1505grandad

Typo:

"with reference to the judgement in ParkingEye v Beavis"

NO "e" judgment

Itakerisk

[FONT=Liberation Serif, serif]Dearest all,
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[FONT=Liberation Serif, serif]Thanks a million for helping out the needy one's, may lord bless you all. Please review my renewed defense in light of your valuable comments.[/FONT]
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[FONT=Liberation Serif, serif]here we go.[/FONT]
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[FONT=Liberation Serif, serif]DEFENCE
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1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. [/FONT]The facts are that the vehicle, registration XXXX, of which the Defendant was the registered keeper was not driving the vehicle.


[FONT=Liberation Serif, serif]3. 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. There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This 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.[/FONT]


[FONT=Liberation Serif, serif]5. The PCN letter arrived in December 2019 When the defendant was out of country, however defendant’s son made multiple contacts to the claimant to explain that the person driving the car on that day was not the registered keeper of the vehicle but all calls are handled by automated answering system, the call charge at 7p per minute and only provides options to pay, No human interaction made it very complicated for defendant to discuss the claim and left with no option but to pay the charge.

6. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They are stuck on wall very high that are out of sight.

7. 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. 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 £69, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.[/FONT]


[FONT=Liberation Serif, serif]9. In an Abuse of process, in addition to the 'parking charge' the Claimant's legal representatives, Gladstone solicitors, have artificially inflated the value of the Claim by adding costs of £69 which has not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. The Court is invited to read Claim number F0DP201T District Judge Taylor, Southampton Court, 10th June 2019 on the subject. [/FONT]


[FONT=Liberation Serif, serif]10. Any purported 'legal costs' are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.

11. According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

12. The Protection of Freedoms Act 2012, Schedule 4 (POFA) 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' (and 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 has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

13. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet Order was identical in striking out both claims without a hearing and here the defendant quotes from the cases cited:
''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 ParkingEye v Beavis. 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…''[/FONT]


[FONT=Liberation Serif, serif]14. Claim number F0DP201T District Judge Taylor, Southampton Court, 10th June 2019, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2019 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and one an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the order was identical in striking out both claims without a hearing and here the defendant quotes from the case cited: "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 not with reference to the judgement in ParkingEye v Beavis. 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"[/FONT]
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[/FONT][FONT=Liberation Serif, serif]15[/FONT][FONT=Liberation Serif, serif]. That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies)on 4th September 2019, District Judge Jones-Evans stated: [/FONT][FONT=Liberation Serif, serif]''Upon it being recorded that Distract 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 v 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.''[/FONT]

16. There are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

17. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.

I believe the facts contained in this Defence are true.

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KeithP

Itakerisk, why have you posted your Defence on this thread?

AMP279

Hello again I'm back! So I now have a hearing set for the 2nd week in March. I have prepared my Witness Statement which I have tried to concentrate on the lack of prominence of a keypad. It would be great if you could check this for me and send any comments. Also I am not sure if I need to bring full documents for example POFA, CPUTRS, etc and how much detail will be required? Is it ok just to refer to these in the WS? Anyway will post the WS in next reply....

AMP279

[FONT=&quot]WITNESS STATEMENT[/FONT]
[FONT=&quot]1. I am XXX XXXX, of XXXXXXX, the Defendant in this matter.[/FONT]
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[FONT=&quot]2. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt arising from the driver's alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 'parking charge notice' (PCN) for the lawful conduct described below.[/FONT]
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[FONT=&quot]3. On the XXXX at approximately XXX I arrived at the Holiday Inn XXXXXX to attend a pre-booked DriveTech speed awareness course, Exhibit XX1 which confirms that I was a genuine patron of the hotel. I paid for a parking ticket using one of the Pay and Display Terminals (P&DT) and displayed the ticket clearly on the car dashboard (although I subsequently discovered the ticket should have been validated to claim exemption).[/FONT]
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[FONT=&quot]4. In fact, visitors including speed awareness course attendees are granted exemption from parking charges whilst using the facilities. Exhibit XX2 is a confirmation email from the Hotel Cancellation Team which assures me that the PCN I received would be cancelled having shown proof of patronage and confirming support in the cancellation of this charge.[/FONT][FONT=&quot] The Defendant has already proved that patronage, and it is the Claimant's own failure, caused by their deliberately obscure terms and procedures that catches out far too many victims and has given rise to a PCN that was not properly issued from the outset. [/FONT][FONT=&quot]Due to the Hotel's promise that visitors are exempt from charges it is my position that, under the doctrine of promissory estoppel, the Claimant has no standing, or cause of action, to litigate in this matter remembering that they are at all times agents of the Hotel.[/FONT]


[FONT=&quot]5. Upon 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 its signs or paperwork, prior to commencing proceedings.[/FONT]
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[FONT=&quot]6. The only route offered was a supposed 'appeal' to ParkingEye, but the Defendant knew that no offence or mischief had occurred and honestly believed from initial research, that private parking charges and the appeals systems were unlikely to be fairly weighted in favour of consumers.[/FONT]
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[FONT=&quot]7. I was unaware of the non-prominent system to input vehicle registration numbers (VRNs) into a hidden keypad in the hotel reception. The Claimant is put to strict proof that a keypad was in the reception and in working order, at the material time.[/FONT]
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[FONT=&quot]8. I would like to draw the court attention to the poor signage and also the use of mixed messages please see Exhibit XX3. The signage upon entry with ANPR cameras mentions ‘visitors’ must enter a VRN to be entitled to FREE parking but the terms that includes the T&C's (alleged contract) on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle. The text is wordy, unclear and smaller than recommended by the DVLA for road signs.[/FONT]
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[FONT=&quot]9. There is also different signage at the hotel foyer entrance found on both P&DTs, see Exhibit XX4 which states that hotel ‘overnight guests’ (not visitors) are required to enter a VRN to be entitled to FREE ‘overnight’ parking. This vital message regarding using a hidden terminal is buried in a corner, discreetly out of the way and in very small lettering, [/FONT][FONT=&quot]thus being incapable of forming a contract[/FONT][FONT=&quot]. Exhibit XX5 shows there is an overly shiny plastic overlay on both the P&DTs instructions panel, this highly reflective, making the signage difficult to read and further obscuring legibility/clarity[/FONT][FONT=&quot]. The Claimant’s Witness Statement does not show the P&DTs as part of their Sign Type Exhibits and is also not shown on its ‘Car Park Signage Layout Plan’. [/FONT][FONT=&quot]It is therefore denied that the Claimant's signage is capable of creating a legally binding contract.[/FONT]
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[FONT=&quot]10. I am not an unobservant person and argue that the average person would not have seen or known about the unexpected VRN system within the hotel somewhere. It is contended that the Claimant failed to alert visitors to an onerous change and unexpected obligation to use a hidden keypad or 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.''[/FONT] [FONT=&quot]Consequently, this fails the Consumer Rights Act 2015 schedule 2, paragraphs, 6, 10, 14 and 18. On this occasion the signs were less than sufficient and consequently [/FONT][FONT=&quot]void under consumer unfair contracts law.[/FONT]
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[FONT=&quot]11. The representation - in this case a 'parking charge' (penalty for a mere error, which could be the fault of the driver or could just as easily be the fault of the Hotel keypad) can only be binding where that charge was agreed/the bargain made, at the time the contract was formed. Denning LJ held that a clause a consumer can only learn about after the contract was allegedly formed was too late to be incorporated into the contract: ''The first question is whether that notice formed part of the contract. ... The hotel company no doubt hope that the guest will be held bound by them, but...the ticket comes too late...''[/FONT]

[FONT=&quot]12. I suggest the lack of prominence and transparency of a hidden keypad is either as a result of negligence or a deliberate action by this Claimant and they cannot blame the Hotel staff, when the Protection of Freedoms Act 2012 Schedule 4 ('the POFA' - see Exhibit XX6) burden for 'adequate notice', and a 'relevant obligation/contract' falls squarely with the parking firm trying to create a contract regarding a parking charge. 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 car park for patrons is indisputably a 'concealed pitfall' and cannot be described as a 'relevant obligation'.[/FONT]
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[FONT=&quot]13. 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.[/FONT][FONT=&quot] Indeed, cases which are not about a free parking licence but involve a simple financial transaction (e.g. paying a tariff and inputting a VRN) were said at the Court of Appeal stage to be likely to fall foul of Lord Dunedin's four tests for an unenforceable penalty. ParkingEye should be well aware that the circumstances of the Beavis case were entirely different. In this case, we have an authorised user using the car park appropriately where there has been no loss to the owner and no abuse of a parking space. While the courts might hold that a large charge might be appropriate in the case of a 'free stay' car park, essentially as a deterrent to overstaying, there is nothing in the case to suggest that a reasonable person would accept that a £100 penalty is a conscionable amount to be charged for the simple problem of a lack of prominence to a hidden keypad or a simple VRN input error.[/FONT]


[FONT=&quot]14. As well as failing to create adequate notice and a relevant obligation and/or contract, pre-requisites for parking on private land cases. The Claimant has fallen foul of the Consumer Protection from Unfair Trading Regulations (CPUTRs) in terms of a 'misleading omission' in allowing the keypad system to be so obscure as to be unknown. Concealed restrictions are misleading, excessive and tip the balance so far against visitors that there is an imbalance in the rights and interests of consumers, which is contrary to the listed Prohibitions.[/FONT]
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[FONT=&quot]15. 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. This transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 Schedule 2, paragraphs 6, 10, 14 and 18. As such, this claim must fail.[/FONT]
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[FONT=&quot]SCHEDULE 2
Consumer contract terms which may be regarded as unfair

PART 1
List of terms[/FONT]
[FONT=&quot]6A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.[/FONT]
[FONT=&quot]10A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.[/FONT]
[FONT=&quot]14A term which has the object or effect of giving the trader the discretion to decide the price payable under the contract after the consumer has become bound by it, where no price or method of determining the price is agreed when the consumer becomes bound.[/FONT]
[FONT=&quot]18A term which has the object or effect of obliging the consumer to fulfil all of the consumer’s obligations where the trader does not perform the trader’s obligations.[/FONT]

[FONT=&quot]16. Consumer Notices such as car park signs are never exempt from the CRA 2015 'test of fairness' and 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)...''[/FONT]

[FONT=&quot]17. The Claimant is put to strict photographic evidential proof of the prominence of the system that day (not an assumption as to where the keypad actually was) and to declare to the court in evidence, how many parking charges they have issued at this site due purely to drivers not being given adequate notice/not entering their VRNs into a vague, hidden keypad.[/FONT]

[FONT=&quot]18. The allegation 'of entering and leaving the car park without a valid paid parking ticket’ appears to be based on images by their Automatic Number Plate Recognition (ANPR) camera at the entrance and exit to the site. This is merely an image of the vehicle in transit and is not evidence of the registered keeper not purchasing the appropriate parking time or not being an authorised patron of the facility (which I was).[/FONT]

[FONT=&quot]19. In Exhibit XX7, I have demonstrated that the P&DTs accept and register payment despite inputting a completely INCORRECT VRN. This suggests the machine is accepting a variation to the offered contract. The machine is fully capable of being programmed to disallow null or partial VRNs and does not, therefore ParkingEye is accepting by conduct this variation. The ticket machines should be linked to the ANPR cameras and only allow correct details, and must firstly accept a valid VRN before accepting the customer’s money and issuing a ticket.[/FONT]

[FONT=&quot]20. At the time of parking the Defendant made a tariff payment but had no recollection of entering a VRN (or incorrect VRN) although a ticket was issued and correctly displayed. ParkingEye states that Defendant has made a tariff payment ‘of up to 3 hours, but remained onsite for a duration of 4 hours 12 minutes’. Knowing that the machineaccepts a variation to the contract by accepting an incorrect VRN the Claimant is put to strict proof regarding their checks that a valid ticket directly linked to the exact VRN was purchased. In the Claimant’s Witness Statement (Exhibit 12) this is shown as a list of partially blanked VRNs, times and payments. There is no link to which particular P&DT was accessed and no evidence of machine identity or certification, merely a printed list which anyone with a computer and a printer could generate whilst inputting a ‘linked’ VRN in hindsight for good measure.[/FONT]
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[FONT=&quot]21. The Particulars of Claim state that the claim is for the Defendant “parking without a valid paid parking ticket”. However, the Defendant purchased a ticket and made all reasonable efforts to make payment for parking using the approved payment channel and subsequently displaying the ticket. The fact the Defendant made reasonable endeavours and cannot be penalised under UK contract law is also a circumstance supported by trite law. Authority for this is the case of Jolley v Carmel Ltd [2000] 2 EGLR 154, where it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.[/FONT]
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[FONT=&quot]22. This ticket was bought and paid for in good faith. According to the Consumer Rights Act 2015 any goods purchased should be 'Fit for Purpose'. The ticket that was issued was not 'fit for purpose'. ParkingEye took money to issue an invalid ticket and now want to charge an additional penalty of £100 for having an invalid ticket, a double recovery situation.[/FONT]
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[FONT=&quot]23. The Claimant is put to strict proof to provide the Court with a copy of its policy and proof that those checks were made in this instance. Further, the Defendant requests proof that ''purchasing a valid ticket without entering a correct VRN or partial VRN or no VRN' is in fact incorporated into the contract from the landowner as a penalty-generating 'contravention' since this is highly unlikely the retailer/landowner allows this unfair fining of paying customers. If it is not in the contract it is not a contravention that can give rise to a penalty.[/FONT]
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[FONT=&quot]24. [/FONT][FONT=&quot]Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £4 and no more.[/FONT]
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[FONT=&quot]25. This claim inflates the total charges in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process. It was held in the Supreme Court in Beavis (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. Thus, there can be no 'costs' to pile on top of any parking charge claim.[/FONT]
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[FONT=&quot]26. In addition to the original penalty, the Claimants have artificially inflated the value of the Claim by adding purported legal costs of £50, which have not actually been incurred by the Claimant. [/FONT][FONT=&quot]The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. The Court is invited to dismiss the Claim, and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

I believe that the facts in this Witness Statement are true to the best of my knowledge.[/FONT]

Le_Kirk

A witness statement is written in the first person and you have mixed some paragraphs with "I" and "the Defendant".

AMP279

OK Le_Kirk I will make it all in the first person. In the meantime let me know if the main content needs any changes? And how much detail I need to bring in terms of POFA, CPUTRS, etc or can I just refer to these in the WS??

Le_Kirk

POFA is law and the judge should be able to refer to it, however, as with all evidence it pays to print the relevant sections to help you and the judge.

AMP279

Ok will do just to be on the safe side.

Can I use the Claimant's WS as part of one of my exhibits?

KeithP

AMP279 wrote: »

Can I use the Claimant's WS as part of one of my exhibits?

Yes you can.