ANPR Overstay - Advertisement Consent Refused by Local Council

Clivero

Good Evening, and firstly I would like to say thank you for the advice which is shared daily within it. It really is a great resource for people like myself, ensuring we are not ripped off by these scams.

I have recently received a letter of claim from BW legal for their client NCP, in regards to an overstay at the Crawley Boulevard car park by 22 minutes.A quick overview is that the APNR timestamp has my car entering the car park at 11:59:05, and the ticket I purchased has a timestamp of 12:00.

I have been following the NEWBIES thread in preparation for the impending court claim, and have been drafting my defense based on a number of factors, including the timestamps being incorrect as well as both the ‘observation period’ and ‘grace period’ not being accounted for whilst entering/exiting the car park. It would have been impossible for me to have purchased a ticket in such a short timeframe after entering the car park.

However whilst looking at a number of different avenues in preparation for the defense statement, I came across something in the planning portal on Crawley Borough Council’s website.

It turns out that NCP had applied for retrospective ‘Advertisement Consent’ on both the Crawley Boulevard (East/West) car parks, and this was refused on the 13/12/2018. (CR/2018/0794/ADV – If helpful to anyone else).

They then reapplied for ‘Advertisement Consent’ from CBC, which was granted on the 24/06/2019, months after the date relating to the PCN. (CR/2019/0304/ADV – Again if helpful to anyone else)

I am going to be following this up with CBC tomorrow, but I have a few questions after reading some older threads on this site, and an old defense drawn up by the parking prankster.

1) Is it correct in assuming that NCP’s lack of ‘Advertising Consent’ for their signage at the car park on the date of the PCN, is deemed a criminal offense and as such no contract was formed?.

2) Whilst NCP has now been permitted retrospective ‘Advertising Consent’, this cannot be backdated to the date of the PCN?.

3) If the lack of ‘Advertising Consent’ is deemed to be an offense, is it worthwhile going to BWLegal now, or waiting for this to be listed within a defense statement in the future?.

Thank you for your comments on this, as I have been going round in circles for the past few hours trying to confirm these things in my head.

Coupon-mad

A quick overview is that the APNR timestamp has my car entering the car park at 11:59:05, and the ticket I purchased has a timestamp of 12:00.

It would have been impossible for me to have purchased a ticket in such a short timeframe after entering the car park.

I agree. How could you possibly have driven round the car park, then found a space, then manoeuvred and parked, then got out, locked the car, then gone & read the signs & tariffs and finally paid, within 55 seconds of initially being seen driving though the entrance?!

Therefore it tells us that the machine is not synched with the ANPR clock.

1) Is it correct in assuming that NCP’s lack of ‘Advertising Consent’ for their signage at the car park on the date of the PCN, is deemed a criminal offense and as such no contract was formed?.

Yes, that can be argued, and I guess you were reading the Prankster's blogs about the two ParkingEye cases that were discontinued when faced with that defence argument?

2) Whilst NCP has now been permitted retrospective ‘Advertising Consent’, this cannot be backdated to the date of the PCN?.

You could certainly argue as much. It's all up to the Judge's interpretation.

3) If the lack of ‘Advertising Consent’ is deemed to be an offense, is it worthwhile going to BWLegal now, or waiting for this to be listed within a defense statement in the future?.

Offence has no 's' (same as defence - no 's').

I'm only saying that so you can stop your PC from using US spellings when contacting BW Legal or writing a defence. You want your submissions to look professional or at least well prepared. US spellings grate.

You could write to BW Legal by email but don't expect them to drop it!

What I would do is drive into the car park again with a Dashcam (or passenger with a phone taking a video in real time) recording the time. Then walk to the machine and check if it agrees with the phone time. Record it as proof.

Then send a SAR that same week to NCP with that specific date mentioned and ask for a copy of the ANPR footage/timings of your car that day, which you know they will have retained for 30 days even with no contravention. Then compare their timings with yours.

It might well assist your case and if not, don't use it!

Clivero

Hi Coupon-Mad

Thank you for your comments, and I have now changed from US-English on my PC

That’s a really good point about requesting the SAR for when I go back to the car park, and I will definitely see if that could benefit my case in the future. I was planning to go back so I could record how long it took from entering the car park, finding a space, removing my child from the car etc, which would prove that the ANPR and PDT timestamps were clearly not synchronised on that particular day.

Just going back to the ‘Advertisement Consent’, it was the two cases on the Pranksters blog’s which I was referring to. I will drop over an email to BWLegal, using some of the quotes from his defence statements, and see what they say.

If they continue with the case, then I will still use some of the arguments from Prankster's blog within my defence statement, and see what the judge has to say thereafter.

Clivero

Good afternoon all



A quick update for my case….


I have now received my claim form from Northampton, dated 20th November, and yesterday completed the AoS online.



As I was expecting this to come through, I started reviewing similar defence statements a couple of weeks ago, and piecing together various points relevant to my own situation.

Would you kindly be able to review my defence statement below, and advise if there is anything that you would recommend amending, adding or deleting please?

Clivero

Part 1/2



IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

National Car Parks LTD (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

Background

1.1 The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

1.2 The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from the driver’s alleged breach of contract, when parking on the material date in a marked bay at XXXXXXXX car park.

1.3 The Particulars of Claim state that the claimant's claim is for a parking contravention on the XXXXXX. 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.

1.4. 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.

Criminal Conduct

2.1 The Claimant places reliance on its provision of signage at the site and upon the content of that signage. However, the Claimant is under a duty to the Court to provide full and
fair disclosure by informing it of all relevant issues. The Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage.

The claimant's planning application for advertisement consent was refused by the local planning authority on 13th December 2018, confirming that the signage did not benefit from advertisement consent, such that at the time the Defendant parked at XXXXXX a criminal offence was being committed in order to create a contract with the Defendant.

The Defendant’s Witness Statement includes additional evidence to show that the Claimant is fully aware that a crime is being committed by the Claimant at some of its other car parks. The signage at XXXXX is classified in planning law as an advertisement. By virtue of Regulation 30 of the Town and Country Planning (Control of Advertisements)
(England) Regulations 2007 (as amended) it is a criminal offence to display this kind of advertisement in contravention of the Regulations. The penalty on conviction for the
offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each day that the offence continues.

2.2 The Claimant has since made application for advertisement consent under the 2007 Regulations, and this was granted by the local planning authority on 24th June 2019. However the
2007 Regulations make no provision for any future consent to be backdated, such that a consent that may be in place by the time that this case is heard will only apply going
forward from the date of consent. Any consent cannot and will not grant authority and legality for display of the signage prior to the approval date so that the crime being
committed when the defendants car was parked will remain a crime for all time.

2.3 The Court’s attention is drawn to the case of Andre Agassi v S Robinson (HM Inspector of Taxes), (B/3). Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. The Court’s attention is drawn in particular to paragraph 20 of the Transcript of that case “It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful”. Paragraph 28 continues - “cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to
perform.” In this case it was not lawful for the Claimant to have in place its signs upon which it relies for the formation of an asserted contract with the Defendant.

2.4 The Judge’s attention is also drawn to RTA (Business Consultants) Limited V Bracewell [2015] EWHC 630 (QB) (12 March 2015). (B/4) This case is drawn to the Court’s attention for the purposes of evidencing paragraph 34 in which the Judge discusses the relevance of the public law principle going back well over 200 years that no man should profit from his crime; it is submitted that this is particularly relevant in this action. The Judge cited Lord Mansfield CJ to explain that: “The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and the defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would have the advantage of it; for where both are equally in default, potior est conditio defendentis.” In this claim there has been a transgression of a law (the 2007 Regulations) and it is submitted that the Court should not “lend its aid” to this Claimant “who founds his cause of action upon an illegal act”.

2.5 It seems to follow from paragraphs 2.1 to 2.4 that, if there was a contract between the Claimant and the Defendant, it was illegal in its formation because it was incapable of
being created without an illegal act (the erection of the un-consented signs stating the terms and conditions relied on by the Claimant). Where a contract is illegal when
formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it
had never been entered into. As such, the asserted contract cannot be enforced. Further, it is submitted, it must be contrary to public policy for a court to enforce such a
contract whereby a party may profit from its criminal conduct.

2.6 To add weight, rather helpfully, the Defendant also cites from ParkingEye v Somerfield Stores (B/6) which concerns an alleged illegal contract. Whilst the facts of that case are
not relevant, the Judge’s comments at paragraph 29 of the Transcript of the Somerfield case are of importance: “At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently”. As has already been stated, in this case the problem arose at the formation of the contract and was not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law so the contract was upheld. Differently in this case, the Claimant did deliberately break the law by erecting the parking signs that stated their contractual terms, without first having in place the mandatory prior consent required by law. Thus a crime was committed then. The illegality in this action was not merely incidental to the creation and part of the performance of the contract as in Somerfield but, as indicated in the Claimant’s Particulars of Claim, it was central to it. Somerfield guides us that where there was a chance to remove the illegality from future performance the contract could remain in force. On the other hand, there was less scope to rectify a one-off contract so it was more likely to be held unenforceable. In this action the illegality of the Claimant’s signage that existed on the day of the Defendant’s parking cannot be undone, even by any subsequent grant of advertisement consent. At paragraphs 65-74 of the Somerfield transcript Laws LJ set out three
factors which need to be considered in a defence of illegality. The Defendant submits that the key issues in this action are that:

2.6.1 The commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract.

2.6.2 The illegality is central to the contract and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable.

2.6.3 The nature of the illegality: in this case it was a crime and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.

2.7 None of these issues were argued in Parking Eye Ltd v Beavis [2015]

British Parking Association Code of Practice and its Relationship with Consumer Protection Laws

3.1. Beavis/96 draws our attention to the Code of Practice of the British Parking Association Limited. At Beavis/111 the Judge helpfully comments that “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 his 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.”
(Defendant’s emphasis of the key point).

Paragraph 2.4 within version 7 of the Code sets out how and in what circumstances a term may be enforced. It states: “All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.” Broadly, the Code of Practice obliges the Claimant to comply with the law in creating and in enforcing its contract with a motorist and in communicating the terms of that contract. The Claimant failed to do so in several aspects.

3.2 At paragraph 2 above the Court’s attention has been drawn to the failure of the Claimant to ensure that the relevant legislation had been complied with, thereby resulting in criminal conduct in their operation of parking enforcement. This is a clear breach of paragraph 2.4 of the Code of Practice. If there is any liability argued on the part of the Defendant then, in considering paragraph 2.4 above, it is submitted that a contractual term cannot be fair if the requirements of the Code of Practice are disregarded and a crime has been committed to create that term and/or the contract between a motorist and the parking enforcement company.

Denial of parking contravention

4.1 The allegation is described by the Claimant in previous correspondence as “parking longer than the time paid for”, although this is not clarified within the Particulars of Claim.

4.2 The Defendant denies any contravention due to the alleged overstay period being within a reasonable period of time allowed for observation, locating a parking space, parking, obtaining a ticket, and exiting the car park.

4.3 The BPA’s Code of Practice states (13) that there are two grace periods: one at the end and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is within the BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA that there is a difference between “grace' periods” and “observation” periods in parking and that good practice allows for this:

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. Our guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. No time limit is specified. This is because it might take one person 5 minutes, but another person 10 minutes depending on various factors, not limited to disability.”
LINK
BPA (28.4) states:

If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.

BPA's Code of Practice (13.2) states:

''If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.''

BPA (13.4) also reiterates this fact:

''You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.''
LINK

Notwithstanding the BPA rules, relevant contract law also dictates that consumers must be given an opportunity to consider terms and conditions before entering into a consumer contract, especially where one of the terms is unexpected (new terms for this site) and onerous. POPLA Assessors have stated in recent decisions that a reasonable time period for this would be up to about 10 minutes.

4.4 In a recent (02/052019) Court of Appeal decision in the case between NCP (Appellant) and HMRC (Respondent) it was made clear that 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:

“English law, of course, generally adopts an objective approach when deciding what has been agreed in a contractual context. Here, it seems to me that, taken together, the tariff board and the statement that "overpayments" were accepted and no change given indicated, looking at matters objectively, that NCP was willing to grant an hour's parking in exchange for coins worth at least £1.40. In the hypothetical example, the precise figure was settled when the customer inserted her pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. 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. At all events, there is no question of the customer having any right to repayment of 10p. The contract price was £1.50.
This is the contractual analysis in the hypothetical example where the customer has only a pound coin and a 50p piece, and therefore has no alternative but to pay £1.50 if she wishes to park in the car park. However, the analysis is the same even if it is possible for the customer to obtain the right coins, for example by obtaining change from another user of the car park. If the customer nevertheless chooses to insert £1.50 and presses the green button, it remains the case that she has accepted the offer to provide an hour's parking at that price.
This analysis may be slightly different from that of the UT, which referred to an offer by NCP to grant the right to park for up to one hour in return for paying an amount between £1.40 and £2.09. In fact the offer made by NCP is more specific, to grant the right to park for an hour in return for the coins shown by the machine as having been inserted when the green light flashes. That is the offer which the customer accepts.”
Link

4.5 It is clear from this decision that a contract cannot possibly begin upon driving into the car park, not least because at that point the driver has not had the opportunity to read the terms and conditions of the contract that may or may not be entered into.

4.6 Timestamps from the Claimant’s ANPR camera images indicate that the vehicle entered the car park at 09:59:05 and on exited the park at 12:22:43. The Claimant’s PDT machine record indicates that the driver of the vehicle paid for 2 hours parking. The Defendant submits that the vehicle was not parked for longer than 2 hours.

4.6.1 Furthermore, it is supported that due to the design of the XXXXXXX car park, the single lane entry and exit system creates a bottleneck within the carpark futher delaying entry and exit for vehicles

4.6.2 Given the time periods specified by the BPA, the Defendant submits that the vehicle was not parked for ‘longer than the time paid for’ and that no parking contravention took place. Therefore, the Defendant invites the court to dismiss the claim as being without basis.

Clivero

Part 2/2



The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the CPRs, and the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

5. The arbitrary addition of a fixed sum purporting to cover 'recovery costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

6. Alleging that the letters the parking firm sent have caused an additional loss, is simply untrue. The standard wording for parking charge/debt recovery contracts is/was on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third party debt collector during the process.

7. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'damages/costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

7.1. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'damages/costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, binding case law and two statute laws have the effect that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

The Beavis case is against this Claim
8. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters.

8.1. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [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''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

8.2. In the Beavis case it was said at para [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.''

8.3. At para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''

8.4. At para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.'' and at para 198: ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

The POFA 2012 and the ATA Code of Practice are against this Claim
9. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) 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' (further, 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.

The Consumer Rights Act 2015 ('the CRA') is against this claim
10. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is atrocious that this has been allowed to continue unabated for so many years, considering the number of victims receiving this Claimant's exaggerated Letter before Claim, or the claim form, who then either pay an inflated amount or suffer a default judgment for a sum that could not otherwise be recovered. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last in 2019, some areas noticed the pattern and have moved to stop this abuse of process at source.

10.1. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District 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 in 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.''

10.2. That decision in Wales was contested in a N244 application by VCS, but the added £60 was still disallowed on 30 Oct 2019. District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. The considered sum in that case was reduced to £100 with a full case hearing to follow, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

10.3. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

10.3.1. Cases summarily struck out in that circuit included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''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 the Beavis case. 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...''

10.3.2. BW Legal made an application objecting to two 'test' cases that had been struck out by District Judge Taylor against a parking firm for trying to claim for £160 instead of £100 parking charge. This has been repeated conduct in recent years, on the back of the Beavis case, where parking firms have almost unanimously contrived to add £60, or more, on top of the 'parking charge'. Members of both ATAs who have influence on their self-serving 'Trade Bodies' have even voted to have this imaginary 'damages/debt collection' sum added to their respective two Codes of Practice, to create a veil of legitimacy, no doubt to allow their members to confuse consumers and to enable them to continue to 'get away with it' in several court areas which are still allowing this double recovery.

10.3.3. That N244 application to try to protect the cartel-like position of some of the 'bigger player' parking firms, was placed before the area Circuit Judge and a hearing was held on 11th November 2019, with other parking charge cases in that circuit remaining struck out or stayed, pending the outcome. The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, sitting at the Southampton Court, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

10.3.4. At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply this this claim.

10.3.5. A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

10.4. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance 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) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).'' The parking industry is the exception to this rule because they have no consumer 'customers' yet are consumer-facing. Their intention is very clearly in many cases (including this case) for a consumer not to see the onerous terms hidden in their notices and it is averred that no regard is paid to consumer law.

10.5. The definition of a consumer notice is given at 1.19 and the test of fairness is expended at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. 1.20 Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

11. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

12. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

13. If this claim is not struck out for the same reasons as the Judges cited in the multiple Caernarfon and Southampton cases, then full costs will be sought by the Defendant at the hearing, such as are allowable pursuant to CPR 27.14.



Statement of Truth:

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


Name

Signature


Date

The_Deep

Would a Civil Court judge conside Mens Rea?

https://en.wikipedia.org/wiki/Mens_rea

[FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP after the election, or to all likely candidates now, it can cause the scammer extra costs and work, and often, if they know an MP is in the loop, they will cancel the charge..

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT]

Coupon-mad

In a defence you don't have links, so remove:

LINK

No attachments, links or evidence go at this stage, yet.

That defence is far too long, so I suggest removing #8 onwards and keeping all that in your back pocket for WS & evidence stage, where people are now being advised to have all that wording as a Supplementary WS.

1505grandad

I believe you have not copied in full the usual para (keeper &/or driver):-

"1.3 The Particulars of Claim state that the claimant's claim is for a parking contravention on the XXXXXX. These assertions indicate that the claimant has failed to identify a Cause of Action, and is simply offering a menu of choices."

All paras should be numbered.

KeithP

Clivero wrote: »

I have now received my claim form from Northampton, dated 20th November, and yesterday completed the AoS online.

With a Claim Issue Date of 20th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 23rd December 2019 to file your Defence.

That's over three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence could be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are trying to keep you under pressure. Just file it.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

nosferatu1001

I would agree that this is a too long defence
Concise. Thats the aim.