Court claim form - Horizon Parking

Le_Kirk

You seem to have the standard concise defence but you might want to strengthen you point about the additional £75 by searching for a thread by beamerguy about Abuse of Process. There is a comment at post # 14 on that thread by Coupon-mad that you might like to read and add to your defence (making sure you number all the additional paragraphs.)

daniellog

Thanks Le_Kirk, I'll look that up and I'll strengthen that side of the argument.

daniellog

I've added in the defence by bargepole about the abuse of process and the extra £70 charge.

IN THE COUNTY COURT

CLAIM No: XXXX

BETWEEN:

HORIZON PARKING LTD (Claimant)

-and-

XXXX (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.
   
   
2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, appears from the sparse evidence supplied by this Claimant to be parked on the material date at a car park managed by the claimant.
   
   
3. The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. 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 does not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
   
   
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.
   
   
5. 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. The signage is not lit or maintained in any way so most signs are unreadable due to vandalism and dirt. Some of the signs are also obstructed by overgrown trees and shrubbery that has not been maintained and therefore they are unreadable.
   
   
6. The terms on the Claimant's signage are 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 and therefore not complying with 18.3 that they are “are easy to see, read and understand” code of conduct, as well as 18.4 (“following any applicable government signage regulations”), 18.6 (“you should try to use plain and intelligible language in all your signs and information”) and 18.10 (“there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle”). The colour scheme and font size of the signage makes it deliberately hard to read and possibly impossible if the person is colour blind or has any sight loss. This again breaks 18.10 of the code of conduct as disabled motorists could not potentially read the signs. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
   
   
7. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.
   
   
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 £85. The claim includes an additional £70, for which no calculation or explanation is given, and which appears to be an attempt at double recovery and an abuse of process.
   
   
9. CPR 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.
   
   
10. Whilst quantified costs can be considered on a standard basis, this Claimant's purported costs are wholly disproportionate and do not stand up to scrutiny.
    
    
11. The standard wording for parking charge/debt recovery contracts is 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.
    
    
12. In fact it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.
    
    
13. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated private parking business model. 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.
    
    
14. Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. 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, and all parking firms are very familiar with this case:
    
    
    http://www.bailii.org/uk/cases/UKSC/2015/67.html
    
    
    Quote:
    
    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...''
    
    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.''
    
    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.''
    
    
15. 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.
    
    
16. 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.
    
    
17. 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.
    
    
18. 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 earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, 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 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...''
    
    
19. 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:
    ''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 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.''
    
    
20. 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 and indeed untrue in terms of the added costs alleged and the statements made, in trying to justify the unjustifiable.
    
    
21. 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.
    
    
22. 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.

I believe the facts contained in this Defence are true.

Name
Signature
Date

Le_Kirk

The basic defence is by Bargepole, the Abuse of Process part is by beamerguy and comments on it by Coupon-mad but at least you have added it. Take out that hyperlink and just put the title of the case to which it refers. Courts/judges will not follow the link, nor print it. You then need to number those paragraphs that don't have one.

daniellog

So I need to also number the paragraphs that are quoting those laws? Like this?

14. Unlike this mendacious and greedy Claimant, ParkingEye themselves took on board the Beavis case outcome and they never add fake costs on top of the parking charge. 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, and all parking firms are very familiar with this case: Quote: 15. 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...'' 16. 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.'' 17. 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.

''

If so, is that the only changes you think are needed? I want to submit the defence this week.

KeithP

daniellog wrote: »

I want to submit the defence this week.

Remember...

...you have until 4pm on Monday 11th November 2019 to file your Defence.

Do not rush this stage.

Coupon-mad

Yes - put para numbers even for quotes.

#2 needs to explain more, not just that you admit it was parked. More detail:

What happened and why are you not liable/why do you say there was no contravention/what sort of site was it/did you pay & display/show a permit, etc?

Remove this unless you are saying the driver suffered from same:

and possibly impossible if the person is colour blind or has any sight loss. This again breaks 18.10 of the code of conduct as disabled motorists could not potentially read the signs.

Le_Kirk

daniellog wrote: »

So I need to also number the paragraphs that are quoting those laws? Like this?<SNIP>

If so, is that the only changes you think are needed? I want to submit the defence this week.

Yes, but as KeithP says, you could leave it for a week (bump after a few days if no other responses ) to see if anybody else has any comments.

daniellog

"#2 What happened and why are you not liable/why do you say there was no contravention/what sort of site was it/did you pay & display/show a permit, etc?"

I don't know what else I can put for that. I've already explained in 4 & 5 why I am not liable and why there was no contravention.

I can only put that the car park wasn't pay and display and there were no staff working for the company to advise drivers on restrictions of the car park?

Also, I thought paragraph 2 was just to state the facts of the claim against me?

Le_Kirk

I think Coupon-mad meant you to put a bit of flesh on the bones to set the scene, remember the judge doesn't know the car park or the circumstances of the parking issue unless you put it in your defence. Even though the POC does not state what the issue is, you surely know what type of car park it is, Pay & Display, Permit holder, Free, supermarket, residential etc.
# 4 & 5 are standard items rubbishing the POC and the signage.