County Court Claim Form from Vehicle Control Services for Robin Hood Airport "breach of contract"

dangdoggy1

Hi all

I have been named as the Defendant on a Claim Form (Issue Date 30/12/2018) filed by Vehicle Control Services Limited (Claimant) in relation to a "breach of contract" at Robin Hood Airport (aka Doncaster Sheffield Airport) on xx/xx/2016.

The “Particulars of Claim” from the Claim Form are as follows;
The Claim is for a breach of contract for breaching the terms and conditions set on private land. The Defendant's vehicle, AA11AAA, was identified in the Robin Hood Airport, Approach Roads on the xx/xx/xx in breach of the advertised terms and conditions; namely stopped on a roadway where stopping is prohibited. At all material times the Defendant was the registered keeper and/or driver. The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations. The sign was the offer and the act of entering private land was the acceptance of the offer hereby entering into a contract by conduct. The signs specifically detail the terms and conditions and the consequences of failure to comply, namely a parking charge notice will be issued, and the Defendant has failed to settle the outstanding liability. The Claimant seeks the recovery of the parking charge notice, contractual costs and interest.

Background…
At the time of the supposed “breach of contract” the Defendant was the Registered Keeper of the vehicle in question.

The Defendant had no recollection of any correspondence on the issue. Upon receiving the Claim Form the Defendant searched their phone and found a partial image of a letter sent by the Claimant to the Defendant days after the supposed “breach of contract”. It includes 3 long range pictures of the vehicle and the number plate. The driver was not identifiable from these pictures. The letter is the standard templated letter you’d expect

The Defendant also found a picture on their phone that supports the assertion that on the day in question the Defendant was not at Robin Hood Airport but instead c1h30m away at their place of work at the time. There were numerous people insured to drive the vehicle so it’s entirely possible while the vehicle may have been at Robin Hood Airport, it was being driven by someone other than the Defendant. The driver isn’t identifiable from the picture of the Claimant’s letter, however.

The Defendant hasn’t had any communication whatsoever with the Claimant up to this point.

After receiving Claim Form
The Defendant filed an Acknowledgement of Service on 03/01/2020 ticking "I intend to defend all of this claim", nothing else.

The Defendant filed a Subject Access Request with the DPO for the Claimant on 03/01/2020.

Now it sounds like the next step is to pull together a Defence based on other similar threads on MSE?

Browntoa

Have you read the newbies thread already ?

dangdoggy1

Browntoa wrote: »

Have you read the newbies thread already ?

Read it focusing on the Claim Form bit. I've filed AOS and sent a SAR. I'm now starting to construct a defence based on other similar ones posted on MSE. Have I missed anything?

KeithP

dangdoggy1 wrote: »

I have been named as the Defendant on a Claim Form (Issue Date 30/12/2018).

The Defendant filed an Acknowledgement of Service on 03/01/2020 ticking "I intend to defend all of this claim".

With a Claim Issue Date of 30th December, and having filed an Acknowledgment of Service on 3rd January, you have until 4pm on Friday 31st January 2020 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.

Having filed your Defence, there is more to do...

1. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
   
2. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet, and then complete it as described by bargepole in his 'what happens when' post.
3. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
4. Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.

Coupon-mad

Search the forum for VCS Airport defence Ransomes and read the results from 2019 that include a defence already written.

To counter VCS' claim you need something to rebut VCS v Ward and VCS v Crutchley as they won those about stopping for a poxy few seconds...

The good thing is you have (once you've read other cases & copied/learnt from them):

Ransomes
Jopson
the Airport Byelaws allow stopping in an emergency, which it may have been
the fact there can be no keeper liability and you may not have been driving

dangdoggy1

Would people mind reviewing my defence before I submit it?

In the County Court Business Centre
Claim No. xxx
Between
Vehicle Control Services Limited (Claimant)
and
xxx(Defendant)

---

Defence

---

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

1. 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 do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

2. The driver has not been identified on any occasion and there is no presumption in law that the keeper was the driver. The keeper is not obliged to name the driver to a private parking firm which was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the Protection of Freedoms Act 2012 principles of 'keeper liability' as set out in Schedule 4.

3. It is admitted that the Defendant is the registered keeper of the vehicle in question at the material time. The Defendant has no liability by virtue of being the registered keeper of the vehicle, and the Claimant has failed to comply with the strict provisions of Protection of Freedoms Act 2012 to hold anyone other than the driver liable for the charges.

4. It is denied that the Defendant was the driver of the vehicle at the material time.

5. 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.

6. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.

7. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle stopping or parking at the location in question.

8. 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.

9. Further and in the alternative, it is denied that the Claimant’s signage is capable of creating a legally binding contract.

10. There are various signs present along the roads around Doncaster Sheffield Airport, but none of them have any means of illumination and therefore cannot be easily read by the driver of a passing vehicle, driving at the speed limit of 30mph, during hours where lighting is not optimal and no street lights are in use, such as a gloomy December afternoon as it was when the alleged breach of contract occurred. Therefore, the driver is deemed to have agreed to the terms and conditions by having entered the area without knowing what those terms and conditions are. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

11. Based on the “PCM vs Bull” case, where defendants were issued parking tickets for parking on private roads with signage stating “no parking at any time”, the claimant has no standing to litigate this matter. District Judge Glen in his final statement mentioned that “the notice was prohibitive, and didn’t communicate any offer of parking and that landowners may have claim in trespass, but that was not under consideration”.

12. Doncaster-Sheffield Airport byelaws should be applicable and considered:
Whether or not the Claimant alleges that they operate under, or rely upon, the Doncaster-Sheffield Airport byelaws, these create a level of statutory parking control and must take precedence over the land and cannot be overruled by a claim pleaded in contract or tort. It is entirely possible an emergency caused the driver to stop the vehicle, or the driver had a reasonable excuse, fitting the criteria specified in DSA byelaws.
Below are the relevant byelaws:

5. PROHIBITED ACTS ON PARTS OF THE AIRPORT TO WHICH THE ROAD TRAFFIC ENACTMENTS DO NOT APPLY. The following acts are prohibited on any part of the Airport to which the Road Traffic Enactments do not apply:

“5 (3) Obstruction: except in an emergency, leave or park a Vehicle or cause it to wait for a period in excess of the permitted time in an area where the period of waiting is restricted by Notice”
“5(12) Parking of Vehicles without reasonable excuse! Park a Vehicle elsewhere than in a place provided for that purpose.

13. This Claimant may try to persuade the court using the perverse decision in “VCS v Ward”, which can be fully distinguished and is far from persuasive when scrutinised. In that case, at appeal, the Defendant did not appear and the case reportedly ran completely against the interests of the victim consumer, such that the Judge even lamented the dreadful position he had been steered towards by this Claimant's legal representation, who, it seems, effectively ambushed the court with a case not first raised at the original hearing. In any event, the “VCS v Ward” case involved a business park and has no application to an Airport case, where the byelaws lay the facts and rules out (very helpfully for the court, and fully in accordance with the Consumer Rights Act 2015) that an emergency is a 'reasonable excuse' clearly anticipated by the Airport owners to be exempt conduct, and not a contravention at all. This Claimant has misapplied the byelaws rules and twisted them for their own profit.

14. 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. No Notice to Keeper was received by the Defendant. The signs present along the roads around Doncaster Sheffield Airport stated a £100 charge leading me to believe the Claimant is attempting to double recover by claiming an additional £60. No calculation or explanation is given to understand how the Claimant arrived at the Amount claimed.

15. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Statement of Truth

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

Signature
Date

dangdoggy1

dangdoggy1 wrote: »

Would people mind reviewing my defence before I submit it?

Little bump to see if anyone has feedback before I submit later in the week. Thank you in advance :money:

Half_way

You could add something about unreasonable conduct, however you should give the parking company notice of the facts, and the opportunity to withdraw the claim.
The facts are:
Protection of freedoms act does not apply, as this is not relevant land ( as it is covered by by laws)

and according to your post, you were over 1hr30 minutes away at the time - you should provide evidence of this to the parking company.
You should also copy the airport into this as well and instruct them that they must instruct their agents to cancel.


To back up your evidence ( the photo) you should also look at your maps app - on google maps this is on the timeline function/tab you should be able to see where you were at that time, on that day.


do let let any of the above delay submitting your defence beyond the deadline, incorporate it into your defence ( if not already) Also copy the airport company into this.
I would also ( personally) be tempted to have the airport company joined to this case so full costs could be awarded against the airport company over the actions of its agents.


Large corporations, and bodys such as Airports should be well aware of the antics of private parking companies, and should be on the receiving end of any fall out as a result of the actions of the private parking companies, pretty much as in the same way a Farmer would be liable of he/she knowingly allowed dangerous animals into a field with a public right of way running through it / public access land and a memeber of the public was injured as a result.


Parking companies should be in the same bracket as dangerous animals, you let them loose on land with public access - you should accept the consequences ( with few exceptions ie small independent businesses/village hall run by committee etc)

Coupon-mad

There was a really thorough example defence (with more meat on the bones that your first draft) posted just 2 or 3 days ago by someone about a VCS Airport stopping PCN; easy to find by searching.

dangdoggy1

Coupon-mad wrote: »

There was a really thorough example defence (with more meat on the bones that your first draft) posted just 2 or 3 days ago by someone about a VCS Airport stopping PCN; easy to find by searching.

Thanks for the steer Coupon-mad. I've updated my Defence;

IN THE COUNTY COURT

Claim Number: xxx

BETWEEN:

Vehicle Control Services Ltd
(Claimant)

vs

xxx
(Defendant)

Defence

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

2. The Particulars of Claim state that the Defendant; was the registered keeper and/or the driver of the vehicle at the material time. 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.

3. It is admitted that the Defendant was the registered keeper of the vehicle in question at the material time. However, the Defendant has no liability by virtue of being the registered keeper of the vehicle, and the Claimant has failed to comply with the strict provisions of Protection of Freedoms Act 2012 to hold anyone other than the driver liable for the charges.

3.1. The driver has not been identified on any occasion and there is no presumption in law that the registered keeper was the driver. The keeper is not obliged to name the driver to a private parking firm which was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the Protection of Freedoms Act 2012 principles of 'keeper liability' as set out in Schedule 4.

4. It is denied that the Defendant was the driver of the vehicle at the material time.

No agreement/breach of terms and no contract (alternatively, frustration of contract)

5. 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.

6. 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 following two types of signs are in use; (I) Entrance sign - on which a "No Stopping" symbol is used, (ii) Repeater signs - on which the "No Waiting" symbol is used. The Department for Transport "Know Your Traffic Signs" publication states that "drivers may stop to pick up or set down passengers" where waiting restrictions are in force, yet the Claimant avers that the Defendant is in breach of the advertised terms and conditions; namely stopping in a zone where stopping is prohibited - this is not the case, due to the fact that the repeater signs display "No Waiting" symbols.

7. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. There has been no "grace period" applied to allow the Defendant to read the Claimant's signage. For these reasons, the case of VCS v Ward, on appeal in the County Court before His Honour Judge Saffman, should not have a bearing in this instance. This is because with respect to VCS v Ward, HHJ Saffman accepted that the signage (being the entrance and 66 repeater signs) represented an offer of a contractual licence, which was accepted when the user drove onto the private land. In this instance, the text is too small to alert the user to the fact that they are entering private land, and is therefore, not capable of creating a legally binding contract.

8. It is an ironic fact that the Claimant’s entrance signs provide helpline phone number, which cannot be used by drivers without breaking alleged contractual agreement with the Claimant or the law. Furthermore the terms on the Claimant's signage do not provide enough information to what is expected from the driver in emergency situation such as a vehicle malfunction. The signs are misleading and missing information, therefore is not capable of creating a legally binding contract. Even if the Claimant shows the court that the terms on any signs were legible, any contract was frustrated. This is a fact that the claimant would have known about, had their watching CCTV camera operator driver mitigated any loss, rather than taking photographs with the intent of penalizing a driver could well have stopped due to an emergency and who may have been in need of urgent assistance.

9. The Defendant would expect the Claimant's own CCTV van operator to attend the hearing in person and provide a witness statement to explain why instant penalties continue to be issued regardless of the van operator seeing for themselves any mitigating circumstances, and to explain whether that is due to VCS blanket policy to 'fine at all costs' or whether a personal decision was made to ignore the possible plight of the Defendant and take pecuniary advantage.

10. If it is the Claimant's case that the area is intended as a 'no stopping zone' then they cannot also offer parking at a price, if the landowner (Airport) in fact intends to prohibit stopping. If cars are never authorised to stop under any circumstances, then any breach would be a matter that falls firmly under the tort of trespass.

11. In the Beavis case it was reiterated that only a landowner can sue for damages/loss for alleged trespass, and ParkingEye could not have recovered monies for unauthorised parking/trespass. It was only because they were able to offer something of value (a parking space) and that the charge was part of that contractual licence, that ParkingEye could charge more than any nominal loss that a landowner could have recovered under tort.

12. If it is the Claimant's case that they were offering a parking licence or a space that had value, then they have produced no evidence to this effect and will be in difficulty if (as suspected) the signage in fact attempts to create a 'no stopping zone'. This would void any credible legal argument relying upon a 'legitimate interest' supporting the intentions of the landowner, because in a 'no-stopping zone' the landowner intends 'no stopping at all' on the one hand, and any driver conduct in breach of that rule could not on the other hand be allowed by a private company offering the prohibited behaviour under a pseudo contract.

13. It is believed that the contract this Claimant has with the Airport limits the parking firm to act as agent of the Airport who remain the (known) principal, in which case only the Airport can sue, not the agent in their own name.

14. Based on the “PCM vs Bull” case, where defendants were issued parking tickets for parking on private roads with signage stating “no parking at any time”, the claimant has no standing to litigate this matter. District Judge Glen in his final statement mentioned that “the notice was prohibitive, and didn’t communicate any offer of parking and that landowners may have claim in trespass, but that was not under consideration”.

15. 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.

16. Doncaster Sheffield Airport byelaws should be applicable and considered: VCS operates under Doncaster Sheffield Airport byelaws. It is entirely possible an emergency caused the driver to stop the vehicle, or the driver had a reasonable excuse, fitting the criteria specified in DSA byelaws.

Below are the relevant byelaws:

5. PROHIBITED ACTS ON PARTS OF THE AIRPORT TO WHICH THE ROAD
TRAFFIC ENACTMENTS DO NOT APPLY
The following acts are prohibited on any part of the Airport to which the Road
Traffic Enactments do not apply:

“5 (3) Obstruction:
except in an emergency, leave or park a Vehicle or cause it to wait for a period in excess of the permitted time in an area where the period of waiting is restricted by Notice”

and

“5(12) Parking of Vehicles
without reasonable excuse! Park a Vehicle elsewhere than in a place provided for that purpose.

17. This Claimant may try to persuade the court using the perverse decision in “VCS v Ward”, which can be fully distinguished and is far from persuasive when scrutinised. In that case, at appeal, the Defendant did not appear and the case reportedly ran completely against the interests of the victim consumer, such that the Judge even lamented the dreadful position he had been steered towards by this Claimant's legal representation, who, it seems, effectively ambushed the court with a case not first raised at the original hearing. In any event, the “VCS v Ward” case involved a business park and has no application to an Airport case, where the byelaws lay the facts and rules out (very helpfully for the court, and fully in accordance with the Consumer Rights Act 2015) that an emergency - such as car displaying fault on dashboard - is a 'reasonable excuse' clearly anticipated by the Airport owners to be exempt conduct, and not a contravention at all. This Claimant has misapplied the byelaws rules and twisted them for their own profit.

Airport approach roads are subject to road traffic enactments (public highway)

18. Even if the Claimant is able to overcome the difficulties they face in showing that:

(a) they have locus to sue in their own name regarding this location, and that
(b) they offered a parking space with value, and a licence to park there, and that
(c) the Defendant was afforded the opportunity to accept contractual terms and that
(d) these terms were prominently displayed and well lit, and that
(e) this charge (described by the Airport as a 'fine') is somehow saved from the penalty rule, and
(f) the driver was in breach, despite the stopping of the car being related to an emergency situation out of the driver's control,

the Claimant is also put to strict proof that:

(g) this access road is not part of the public highway. A 'public highway' is any road maintained by public expense where the public would normally have a right to drive a mechanically propelled vehicle. It is averred that the Airport approach road is public highway and the Claimant is put to strict proof to the contrary.

18.1. The road comes off a roundabout and is not clearly demarcated as private land, nor is it a private car park and thus, any parking/traffic contraventions would be a matter for the local authority. Such roads are subject to the rules of the Road Traffic Act and statutory instrument and any 'PCN' must be a proper penalty charge notice issued under the Traffic Management Act 2004.

18.2. The claimant is put to strict proof that this approach road is a part of 'the Airport' site where road traffic enactments do not apply.

Alternative defence - excessive and disproportionate blanket use of CCTV 24/7 regardless of circumstances (contrary to the CCTV rules issued by the ICO)

19. This Claimant uses CCTV camera systems (365 days a year, 24 hours a day, seven days a week) and processes personal data excessively and disproportionately, and thus fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information' ('the ICO Code').!

19.1. The ICO Code applies to all CCTV systems, and states that the private sector is required to follow it, in order to meet its legal obligations as a data processor. Members of the International Parking Community ('IPC') trade body are required to comply fully with the Data Protection Act ('DPA') and all ICO rules and guidelines, as a pre-requisite of being able to use the DVLA KADOE system to harvest VRN data, including the addresses of registers keepers.

19.2. Whilst CCTV has its uses to keep Airport approach roads clear - to stop drivers from choosing to park and leaving their vehicles or using the roads as a drop-off point, for example - this must be with reasonable and proportionate application, with sufficient checks and balances being an ICO Code requirement when operating such a data-intrusive regime.

19.3. The Claimant's failures to comply include, but are not limited to the following, and the Claimant is put to strict proof otherwise on all counts:

i) Lack of an initial Surveillance Camera privacy impact assessment, and

ii) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and

iii) Failure to regularly evaluate whether it is necessary and proportionate use CCTV to issue penalties in all cases, applying no human intervention or common sense approach (e.g. having no checks and balances to exclude from the 'immediate penalty' approach, cases where the CCTV operator would have seen and that driver was trying to safely start a broken down vehicle as in this case), and

iv) Failure to prominently inform a driver in large lettering on clear signage, of the 'commercial intent' and purpose of the CCTV system and how the data captured would be used, and

v) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access. At no point has the Defendant been advised how to apply for, and what a data subject's rights are, to obtain all images and data held via a Subject Access Request from the Claimant and indeed the Defendant has been furnished with no images, information about the terms or the alleged breach, or any data at all.

20. This Claimant has therefore failed to meet its legal obligations and has breached principle 1 (at least) of the DPA, as well as the IPC and the ICO Codes of Practice.!

21. The Defendant avers that a breach of the DPA and failure to comply with ICO rules regarding data captured by CCTV, also transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015 (enacted after the final hearing in Beavis and not considered in that case).

21.1. In any case involving a consumer contract, Courts must evaluate and apply a test of fairness, whether the Defendant raises the issue or not, and transparency of terms must also be considered carefully in every case.

21.2. It is averred that this Claimant at this location, fails on both counts and therefore the charge is unjustified and just the sort of 'unconscionable' parking charge that the Supreme Court had in mind when retaining the 'penalty rule' for use in cases such as this, where the facts are less complex than in Beavis.

21.3. Further, the IPC Code of Practice specifically prohibits 'predatory tactics', therefore this Claimant is operating in breach of the effectively 'regulatory framework' of their trade body code that the Supreme Court in Beavis found was a pre-requisite of a transparent and lawful operation.

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'.

22. Alleging that the letters the parking firm may have 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.

23. 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.

23.1. 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

24. 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.

24.1. 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.''

24.2. 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.''

24.3. 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...''

24.4. 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.''

Continued below...

dangdoggy1

Defence_v2_part_2 wrote:

The POFA 2012 and the ATA Code of Practice are against this Claim

25. 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

26. 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.

26.1. 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.''

26.2. 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.

26.3. 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.

26.3.1. 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...''

26.3.2. 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.

26.3.3. 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.

26.3.4. 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 to this claim.

26.3.5. 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.''

26.4. 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.

26.5. 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.''

27. 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 multiple parking ticket claims from various firms all due to the adding of the false £60 costs to £100 parking charge, that already indisputably (in law and case law) includes those costs.

27.1. The Judge 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 Orders striking out several £160 parking claims without a hearing, the Judge stated that he had ''considered S71(2) of the Consumer Rights Act 2015 for the fairness of the contract terms and determined that the provision of the additional charge breached examples 6, 10 and 14''.

28. 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.

29. 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.

30. 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 are true.

Name

Signature

Date

If there's nothing crazily wrong I want to get on and submit the Defence asap!