Varley Park University of Brighton - County Court Claim

basher52

Would you please with number 8. I am unable to see what was written on the signage as it has been replaced by the new arrangements. I understand that parking was with a permit only.

basher52

For number 8, the copy of the parking sign supplied reflects how small the actual sign is and how hard it would be to read. That said, the wording in number 8 is correct where drivers are told to park in the allocated bay.

For two of the PCN's, the second was issued when the first was still on the windscreen.

basher52

Have read my defence again and will now amend
section 2. am the keeper - add not the driver
4.1 from a contract to any contracts
4.2 from there was to there were and agreement to agreements
4.3 remove "or signage adequately lit" as the PCN's were daytime issues
5 add plurals
10 add plurals
14 Amend £60 to £240 and £80 debt to £320 as four tickets were issued.
14.1 Amend £60 to £240
17 Amend 60% to 52%

I trust this ok.

Thank you all

basher52

Redx wrote: »

Fair enough , well I am sure that you get it now

If or when you win this one , we will refer people to the thread by basher52 , to save repeating ourselves like it's groundhog Day, especially because I don't believe there would be anything that isn't already covered , dissected and replied to

But we would endeavour to write basher52 , not basher52 , or Basher52 , you are unique like Reds , not rec'd or reds or countless other misnomers I see on here

Take your point and do apologise to anyone I have misrepresented. Your help is invaluable and without it I and many others would have capitulated a long time ago. It takes confidence to take this on, and all around you everyone is getting on with other things. Paying up is a week option and this is worth the fight.

Thank you

Coupon-mad

If you were not the driver on these occasions, use this as a defence and we can discuss more detail later, at WS & evidence stage:

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

ONE PARKING SOLUTION LTD (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 incidents. However, the defendant was not the driver on any 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 dependant 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. Due to inadequate notice of any parking charge and/or any added sums, the driver(s) did not enter into any 'agreement on the charge' and there were numerous complaints about the hounding of university students when they were moving in at this site in 2018. This Claimant was removed from the location at some point, or the contract was not renewed due to these complaints, and the Claimant has lost a number of contracts in the Brighton area, due to their hidden terms and draconian enforcement demands.

4. There can be no 'legitimate interest' in sending demands regarding the time taken to move students into Varley Park (university halls of residence) which reasonably will include the unloading of belongings from a vehicle over a period of days in October, then the same before the Christmas holidays. Students have residential rights which, even if there are not specific terms about parking in their rental agreements, would imply rights of way to move their possessions in and out. It seems that this Claimant knowingly sent an operative in October and in December to lurk at the site and prey on students and their families, waiting until they carried belongings inside the premises then pouncing and taking photos over a period of mere minutes, to profit from the normal conduct of moving into a home.

5. 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.

6. In B9GF0A9E Jopson v Homeguard [2016], the exact question of loading/unloading at a residential site was tested at Oxford County Court on 29/9/2016. The Jopson case is a persuasive decision, where Senior Circuit Judge HHJ Charles Harris QC found that Home Guard had acted unreasonably and that the Beavis case was not applicable to such a location. It is unconscionable, contrary to the requirement of good faith and 'out of all proportion to any legitimate interest' to fine residents or their visitors for the short time taken to load or unload goods from a vehicle. HHJ Harris defined 'parking' and set that apart from mere 'unloading' as allowed under the implied easements and rights of way enjoyed by residents, and he declared that 'life would be unworkable' at a block of flats if every delivery driver or indeed residents were penalised for what was clearly not part of any agreed 'parking licence' under contract law.

7. 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.

8. 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 denied that any terms covered the time taken to load/unload possessions and it is submitted that the terms were on wordy and unremarkable signs which were sparsely place and far from prominent. This Claimant could not override the legitimate interests of the students in moving in/out and cannot have been acting as instructed by their principal, given the purpose of this location (student halls).

9. 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, particularly given the low lighting conditions and lack of lighting of the signs, which looked like the sort of normal signs about bins that a student or their family members would not be expected to give a second glance to, as they went about their business in the excitement of moving into University.

10. 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.

11. The four parking charges in question are at a level of £80 each, yet the Claimant is trying to recover an eye-watering £560 (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'.

12. 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.

13. The Defendant has the reasonable belief that the Claimant has not incurred an additional £60 in damages or costs to pursue an alleged £80 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.

14. 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
15. 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.''

15.1. 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.

15.2. 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.''

15.3. 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...''

15.4. 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
16. 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 each NTK, was stated to be £80 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
17. 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 75% 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.

17.1. 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.''

17.2. 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...''

17.3. 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.

17.4. 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.

17.5. 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.''

17.6. 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.

17.7. 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.''

18. In December 2019 in a different Court circuit, Deputy District Judge Josephs 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''.

19. 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.

20. 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.

21. 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.

22. 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

Coupon-mad

Amend 60% to 52%

? £60 is nearly 80% of £80! I've included that in the above draft.

Le_Kirk

It seems that this Claimant knowingly sent an operative in October and in December to lurk at the site and prey on students and their families, [strike]wiring[/strike] waiting until they carried belongings inside the premises then pounced

If you park here and stay more than two hours, you will pay £85''. [strike]Ad[/strike] And at [199]: ''What

Just a couple of typos.

DoaM

Coupon-mad wrote: »

? £60 is nearly 80% of £80! I've included that in the above draft.

£60 is actually 75% (exactly) of £80

(I haven't read the thread. If the PCN was £85 then £60 is a shade over 70% of £85).

Coupon-mad

Thanks, I have edited it so the OP just needs to refresh the page to find the final version.

basher52

Coupon-mad wrote: »

If you were not the driver on these occasions, use this as a defence and we can discuss more detail later, at WS & evidence stage:

Words fail me Amazing!

Thank you, such a huge relief