Missed PCN and recovery action

Coupon-mad

9.      Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association ('BPA') Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner states in an article that has been in the public domain since 2018: ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''  

  

10.  The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not necessarily the ‘innocent party’ in these disputes.  In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities''  and it seems reasonable to expect that this aim be reflected by the Courts.

 

11.  In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the Particulars of Claim are embarrassing and incoherent, lacking specificity re the location of the event and status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action.  The Defendant was unaware of the PCN at the time and there is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

  

12.  The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction.  The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’  And at [99] ‘‘the penalty rule is plainly engaged.’’

 

13.  Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings set a high bar that other claims fail to reach.  

14.   This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged.   The intention cannot be to punish drivers nor to present a motorist with concealed pitfalls or traps, nor to claim an unconscionable total sum.

  

Alternative defence, should this claim not be summarily struck out

15.  Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

16.  It is admitted that the Defendant was the registered keeper.  The Defendant did not park the vehicle nor drive it in because he was driving a second vehicle then swapped later with his wife; however the Defendant did pay the correct tariff for both vehicles. 

17.  Any breach is denied, as is any liability for damages.  It is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.  The Claimant asserts a contract had been entered with them upon arrival, as the car drove over the threshold of the land, at the entrance of the car park and that the driver breached that contract and must pay a contractual charge with further undefined and unexplained additional charges.   

18.  The car park is a old multi-storey car park and there was some difficulty navigating the ramps due to their narrow nature and the large MPV being driven; this means that navigating the car park took longer than might be the case at other, smaller and flatter sites.    The Defendant's wife drove this vehicle in, with three occupants of the car being under the age of 5 and one being only 2 weeks old.    The Defendant drove the family's other vehicle in and it took some time to find a space for both vehicles, as is often the case in tight multi-storey sites with narrow bays.   There then followed the usual unloading of belongings and organisation of three very young children, involving the set up of push chairs, etc. and even with two adults, this outing was a feat of organisation with a newborn baby to consider, as well as the safety of the other children in a busy car park.  

19.  Whilst it is accepted that it took some time prior to purchasing the tickets for both cars, the family did not leave the car park without paying and the signage in the car park does not indicate any 'relevant obligation' regarding a time limit between entry and purchasing the ticket.  The Defendant believed that the contract would begin when the tariff was paid, and for this car he paid £1.50 for a period of parking of 3 hours.  The vehicle (driven out by the Defendant but not parked by him) left before the expiry time on the ticket, as evidenced from the PDT log provided by the Claimant.  There was no reason to think that any terms had been breached and the Defendant had no sight of any PCN on the car or in the post afterwards, although it was later discovered that unopened post in a plain brown envelope (taken to be bank statements and not opened until later) did contain a PCN.

20.  It is not known when the PCN (or 'Notice to Keeper') arrived because it had no franking date, but it is not accepted that this Claimant properly served - in wording and/or in terms of the deadline - a fully-compliant Notice to Keeper in accordance with the strict requirements of the POFA Schedule 4.  The Defendant was not the driver and cannot be held liable outwith the POFA and there is no presumption in law that a keeper was driving, which would in any case be fully rebuttable regarding this event.

21.  The Defendant avers that the correct tariff for the parking time was paid at the Pay and Display Ticket ('PDT') machine, and the car was not in fact parked and left in the bay for any longer than 3 hours, and the Claimant is put to strict proof to the contrary.  

22.  Despite the offer on signage referring to 'parking' tariffs per hour - and that offer only being seen at the machine after finding a space - it appears to be the Claimant's case that a 'parking charge notice' (PCN) was served to punish the driver for the 'driving in and out' timings in moving traffic.  Absurdly, the Claimant's own PDT slip which was displayed on the dashboard and operates as a receipt for the tariff, offered an expiry time that was misleading at best, such that even if the Defendant had left 20 minutes early, a PCN would still have been sent.  This system presents a driver with an unfair 'concealed pitfall or trap' (a Beavis case phrase from the Supreme Court) and the two different clocks in play mean the terms are balanced against the average consumers' rights, interests and reasonable expectations when paying to park and relying upon the offered 'expiry time' and it cannot be held to meet the test of fairness in the CRA 2015.

23.  It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of thousands of unsuspecting but circumspect visitors to the Centre, who are being caught out regularly by this trap.  Drivers are unaware that they are being held to a secret unknown 'start time' from a camera system that is not connected to the PDT machine clocks, which have been shown in other NCP car parks to be several minutes out.  The Claimant is put to strict proof that their PDT machine clock was synchronised that morning with the ANPR clock, in a similar way that Council CEOs on arrival at Local Authority car parks are required to synchronise their watch with the PDT machine at each site, before any PCNs can be issued.

24.   In agreement with the above is Kelvin Reynolds of the BPA, who says, ''there is a difference between grace periods and observation ("consideration") periods in parking and that good practice allows for this, there is no time limit for these periods, it might take one person five minutes and another person fifteen minutes depending on various factors; there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator conditions and either drive away or pay for a ticket".  The Defendant paid for a ticket in good faith.

25.  In Beavis, the Supreme Court made clear in its judgment that strict compliance with a Trade Body Code of Practice ('CoP') is paramount where a Claimant seeks to enforce a private parking charge.  The judgment stated at [111]: ''While the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of the ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced".

Coupon-mad

Signage

26.  The Claimant’s signs are in breach of the CoP, with vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA.    Whilst the tariffs are in eye-catching large font, the onerous 'parking charge' is not even displayed on the machine and is positively buried in smaller print on the signs and was not seen nor agreed.    The spuriously added £60 is not on the sign at all, to the Defendant's recollection.  Consequently, it is the Defendant’s position that no contract to pay any onerous penalty (whether £100 or £160) was entered into with the Claimant, whether express, implied, or by conduct.

 

Case law more relevant to this case than Beavis: 

27.  The Beavis case is fully distinguished and a more relevant list of binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i) Spurling v Bradshaw [1956] 1 WLR 461, and;

(ii) Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2, both leading examples of the ‘red hand’ rule - i.e. that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  It is noteworthy that parking charge Claimants are often seen to misquote from Vine, repeating in their template Witness Statements (often written by their legal representatives and not by the signatory 'witness') an out of context quote lifted from the unsuccessful party's case about the signage, rather than the judgment by Lord Justice Roche, whereby Miss Vine won her appeal due to the inadequacy of the terms that were not 'bound to be seen'. 

27.1.  Finally, in terms of apposite case law, given the Claimant and the PDT machine car park regime, the case of National Car Parks Limited v The Commissioners for HM Revenue and Customs: [2017] UKUT 0247 (TCC) made it clear that the offer and acceptance of a parking contract can only take place once the payer has inserted payment into the machine and pressed the 'green button' to obtain a ticket.    The tribunal stated at [18]: ''The best analysis would seem to be that the contract was brought into being when the green button was pressed. On that basis, the pressing of the green button would represent acceptance by the customer of an offer by NCP to provide an hour's parking in return for the coins that the customer had by then paid into the machine.''  

Bailii link:  https://www.bailii.org/ew/cases/EWCA/Civ/2019/854.html

  

Authority flowing from the landowner (BPA Code of Practice s7 mandatory requirement)

28.   Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or the necessary landowner authorisation to issue PCNs under these circumstances and to pursue keepers by means of civil litigation.   It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, their required grace period or other terms.  There is no evidence that the freeholder authorises this particular Claimant to sue paying visitors; a draconian sanction that unfairly targets paying motorists and issues the same aggressive debt demands as would be sent to trespassers who dumped their cars for a week without payment.   

No legitimate interest and lack of open dealing

29.   This Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. An agreed 'parking charge' of £4 - even when paid - unexpectedly becomes an extortionate £100 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue based upon a similarly compelling 'legitimate interest' or commercial justification as the Supreme Court identified in Beavis:

(i) at [32] ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.  [...]  In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''  

(ii) at [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

(iii) at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

(iv)  at [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

 

Exaggerated claim - an abuse of process which deserves no relief from sanctions

30.  In the pre-Beavis case in ParkingEye v Somerfield at [419], the High Court held: ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''  Bailii link: https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html#para419

31.  This Claimant's Particulars disclose no legal basis for the sum claimed, a cynical attempt to go behind the Beavis case paragraphs 98 193 and 198, all of which confirm that their Lordships held that the construction of a parking charge that is not unconscionable 'must' already include the operational costs of the regime. Unusually for this industry, it is worth noting that following their High Court case in Somerfield, and as was seen in Beavis, ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.

32.  This Claimant and their legal representatives undoubtedly knew, or should have known, that an exaggerated ‘parking charge’ claim is disallowed under the CPRs, the Beavis case, the POFA and the CRA.  The Judge in the instant case is taken once again to the Appendices, demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum that clearly represents double recovery and a serious abuse of the court process.

 

33.   In the matter of costs, if the claim is not struck out without a hearing, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) the Court to reserve, assess and award the Defendant’s Summary Costs Assessment, to be assessed, filed and served at Witness Statement stage in anticipation of a typical late Notice of Discontinuance (‘NoD’) from this Claimant.

 

34.  At NoD stage, or at a hearing if the case proceeds that far, the Court will be taken to facts to support a finding of wholly unreasonable conduct by this Claimant.  Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that LiP costs are not necessarily capped at £19 ph.  The Defendant will ask for a fairly assessed rate for the hours spent on this case, referencing Spencer & anor v Paul Jones Financial Services Ltd.

 

35.  For any or all of the reasons stated above, the Court is invited to dismiss this claim. It is the Defendant's position that this claim discloses no cause of action, is without merit, and an exaggerated claim has no real prospect of success nor right to proceed to a hearing, in whole or in part.

I believe the facts contained in this Defence are true.

Coupon-mad

Here are Appendix A, B and C but back to front in this PDF link!
https://www.dropbox.com/s/pi0anasmdy71usn/Judgements%20Merged.pdf?dl=0
Explained here with alternative links & screenshots of the individual three appendices:

https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1

That's the one I based the above draft on, but merged it with your specific facts and your defence draft.

HTH

Masterplanner

Coupon-mad, thank you so much for this, I have read through it all and think I understand it.  I realy appreciate your help.

Coupon-mad

No worries; sometimes when I start to tweak a defence I end up re-writing it, as here!

I just spotted a typo in #18 that I have now edited:

 feat or organisation 

Masterplanner

Hi everyone,
thanks for everyone’s help so far.  

I have now received a GFJO by copy from BW legal, the email that came with it says that it has been determined via paper only, however reading the document it doesn’t seem it is only by paper but rather that is one of the options.  My question at the moment is, when it says with xx days of the service of this order, is that the date at the top of the paper work or the date stated that it was received by BW, and how do I respond to the order or BW as I don’t want the case to be determined by paper but rather by telephone?

thanks in advance

Coupon-mad

General Form of Judgment or Order = an Order from the court.

But the court must send it to you too.  Have you not received it from the court; what's the date on it?

Can you also tell us EXACTLY what the email says (we mean verbatim) and who sent it?  
Sounds misleading.

Masterplanner

Hi CP,
I also have a copy from the court, the date on the letter from the court is 11th June.
the emails states:

We refer to the above matter. 

As per the attached court order dated 11/06/2020, the Claimant agrees for the matter to be determined by the Judge via paper only as per para 2. (1).

Please advise if you wish to proceed on this basis as soon as possible, so we can update the Court accordingly.

I await for your urgent reply.

Kind Regards,

 [Removed by Forum Team]

D_P_Dance

What is there to misunderstand there?  They are asking if you agree to a hearing on the papers.    

Masterplanner

What is the process to respond, do I reply to their email saying I want it to be a hear over the phone?
do I also need to inform the court? If I do, how do I do that, I don’t Think I have an email address for them?