County Court form received

Coupon-mad

Have a look at the example defence in basher52's thread which shows the first 4 or 5 points are about the actual situation, whether you are admitting to driving and what was wrong with the signs, why there was no contract or no contravention.

You can adapt that one. You will need to remove the PLURALS about the parking events as that one was about more than one PCN, and only deny who was driving if that is true, of course.

umbroshinpad

Thanks c-m. I have read the full thread and the defence. I am anxious that I feel like all I have done is taken things out.

Like Basher52, I also assumed this was fake and ignored the claim. Following that, we had a some water damage in the house and a ceiling collapse which led to a lot of letters being ruined and thrown out. Therefore, I do not have the first letter. (There was no window charge.) I have requested a SAR, which has not been returned (part of the reason for this being completed so late in the day, as I waited for it's return.) Therefore, I feel I am being presumptuous in using the strong language you have used to state that they have failed at giving notice and sending documents in time frame.

Additionally, I have since returned to the car park and there are lots of signs. I counted 6 covering an area about half the size of a football pitch. Therefore, I feel it is necessary to take out any argument that there are too few signs. However, the font on the signs is tiny, I struggled to read it stood in 2 feet away, never mind in my car. Plus, there is white sticker over part of the sign, suggesting that an amendment has been recently. Again, without the NTK, I am unable to say with confidence what that change was. Is this something I should mention now, or wait until I receive the evidence?

Below is the defence, hopefully it is enough?

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx
BETWEEN:

ES PARKING ENFORCEMENT LIMITED (Claimant)

-and-

xxxxxx xxxxxxxx (Defendant)

DEFENCE

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

2. It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the alleged incident. However, the defendant was not the driver on the occasion mentioned in the Particulars of Claim, and has no lawful obligation under any applicable law to name the driver and subject them to the level of harassment the Defendant has suffered from this Claimant and their notorious agents. 'Keeper liability' where the keeper was not the driver on private land, is not an automatic right. It is dependent 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.

3. In this respect and in all other facts - including the lack of prominence and clarity of the signage and the small font used to hide the onerous terms, the Supreme Court case of Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is fully distinguished.

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. It is submitted that the terms were on wordy and unremarkable signs which were sparsely place and far from prominent.

6. 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, which looked like the sort of normal signs about a person would not be expected to give a second glance to, as they went about their business.

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 parking charge in question is at a level of £100, yet the Claimant is trying to recover an eye-watering £160 (plus interest and court costs). 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 ('the CRA') 'terms that may be unfair'.

9. The arbitrary addition of a fixed sum purporting to cover 'recovery costs' is 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.

10. 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. 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, because parking charges (unlike other 'debt' claims) must by definition, already encompass the costs of the operation.

11. 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 again, to the 'parking charge'.

The Beavis case is against this Claim
12. 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''. And at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

12.1. 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, where it was stated three times that the £85 had to cover the costs of the letters.

12.2. 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.''

12.3. 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...''

12.4. 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
13. 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' ('NTK'). Further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is no more than £100, and in this case the parking charge in the small print on the signs, and in NTK, was stated to be £100 and this must have been set to include the costs of recovering the charge, or it falls foul of the Beavis case.

The CRA 2015 is against this claim
14. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA Schedule 2 'terms that may be unfair'. This Claimant has arbitrarily added an extra 60% to the parking charge, in a double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales. It is astounding to this Defendant, that this has been allowed to continue unabated for so many years. Even if most courts are routinely disallowing the added £60 'costs' of all parking charge cases now (and it is clear from online reports that almost all courts are disallowing that sum) this is not enough.

14.1. It is especially unacceptable that parking firms are still filing claims including what they know is a tainted and unrecoverable sum, 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, including in the Caernarfon Court in Case number F2QZ4W28 (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.''

14.2. 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. Cases summarily struck out in that circuit, included BPA members using BW Legal's 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...''

14.3. 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.

14.4. 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 CRA, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

14.5. At the hearing, the Judge refused their request to appeal. 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.''

14.6. Consumer notices - such as car park signs - 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) – 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.

14.7. The definition of a consumer notice is given at 1.19 and the test of fairness is expanded 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. [...] 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.''

15. In December 2019 in a different Court circuit, Deputy District Judge Joseph sitting at Warwick County Court had clearly heard about the decisions affecting the IOW, Hampshire, Dorset and Wiltshire circuit because he summarily struck out another parking ticket claim. The Judge mentioned the POFA 2012 and the Beavis case, and determined that ''it is an abuse of process for the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover.'' Further, in issuing his Order without a hearing, the Judge stated that he had ''considered S71(2) of the CRA 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

16. The Defendant requests that this Court - using its case management powers pursuant to CPR 3.4. - recognises its duty to consider the CRA 2015 in the same way as the Southampton and Warwick courts recently have done, and opts to summarily strike out this claim due to the Claimant's flagrant disregard for consumer rights as set out in statute.

17. 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.

18. 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.

19. If this claim is not summarily struck out for the same reasons as the Judges cited in the multiple Caernarfon, Southampton, IOW and Warwick County Court decisions, then due to this Claimant knowingly proceeding with a claim that amounts to an abuse of process, 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 Statement are true.


Name

Signature


Date

Thanks for all your help, everyone.

umbroshinpad

Le_Kirk wrote: »

The defence must be written in your name and signed by you. Your partner can turn up at court and accompany you and partner can be either Lay Rep (where they speak for you so just tell the usher when you both arrive at court) or McKenzie friend where you do the talking but they pass you papers and whisper in your ear what to say.

Do I need to do anything before hand or just show up with him?

KeithP

umbroshinpad wrote: »

Do I need to do anything before hand or just show up with him?

As Le_Kirk said... "just tell the usher when you both arrive at court".

umbroshinpad

Thanks Keith

umbroshinpad

I have been looking up what is happening with the land, due to all the building work that I have mentioned. It looks like there is some disrepute about what is happening to the site. The current owners (Midas Ltd) have had applications for building a retirement centre knocked back from the council. There was previously an Indian which stood on the site, which the landowners gave notice to close. The owners of that Indian have also made a statement (on Facebook) criticising Midas for forcing them to close and giving parking tickets to their customers.

Is this public outrage something worth referencing in my defence? It does nothing to undermine the owners of the land, but it shows that they are acting in bad faith against the local community, which has resulted in criticism from the Parish Council and a rejection of plans from the City Council.

umbroshinpad

Bump. This needs to be in before 4pm today and I'm at work, so I'll probably be sending it at 2pm, if anything needs doing please let me know before then.

Le_Kirk

The defence seems to contain all the usual points plus the Abuse of Process parts written by beamerguy and Coupon-mad.

umbroshinpad

Thanks Le_Kirk, I've sent it.

Coupon-mad

OK good.

You can cover the other stuff like the Facebook hearsay evidence from the Indian takeaway, and anything else that the SAR shows you, at WS and evidence stage, later.