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UK CPM Claim form - help with defence
sleepisfortheweak
Posts: 8 Forumite
My husband has received a claim form from the County Court Business Centre, from UK Car Park Management Ltd. Issue Date of 13 January 2020, in respect of a contravention on 18 July 2018.
I am assisting my husband with the claim. I filed his Acknowledgement of Service online today (21/1/20). I did a subject access request to UKCPM data controller (details via the website) on 17/1/20.
We previously ignored all correspondence from UKCPM / Gladstones, save one online appeal where we did not name the driver.
The circumstances were no windscreen ticket issued. The PCN was the first correspondence received and was deemed to be delivered on day 15, so outwith the 14 day period for keeper liability. My husband is the keeper. As far as I can recall, he was actually out of the country on the date of the alleged contravention so was not the driver.
Our draft defence is below; any comments would be very much appreciated.
I would also be grateful for guidance on what docs to attach to the defence. I found reference to the two judgements which I understand struck out other claims at an early stage based on abuse of process.
IN THE COUNTY COURT
CLAIM No: xxxxxxxxxxxxxxxxx
BETWEEN:
UK CAR PARK MANAGEMENT LTD (Claimant)
-and-
xxxxxxxxxxxxxxxxxxxxx (Defendant)
________________________________________
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is admitted that at all material times the Defendant is the registered keeper of the vehicle, registration xxxxxx (the Vehicle), which is the subject of these proceedings. The Vehicle is insured with [provider] with three named drivers permitted to use it. The Defendant denies that he was the driver of the Vehicle at the time of the alleged contravention, because he was in [ ] on a business trip from [date] to [date ].
2. 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.
3. 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.
4. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in Schedule 4 of the Protection of Freedoms Act 2012 (POFA).
4.1 It is not admitted that the Claimant has complied with the relevant statutory requirements. Before seeking to rely on the keeper liability provisions of POFA, the Claimant must demonstrate that:
4.1.1 there was a ‘relevant obligation’ either by way of breach of contract, trespass or tort; and
4.1.2 that ‘adequate notice of the parking charge’ was given to the driver at the time of the parking event; and
4.1.3 that it followed the required deadlines and wording as described in the POFA to transfer liability from the driver to the registered keeper.
5. It is a fact that there was no windscreen ticket left on the Vehicle at the time of the alleged contravention. For the liability to be transferred from the driver to the keeper when there is no windscreen ticket, the Notice to Keeper has to be received within 14 days of the alleged infringement (Schedule 4, section 9(5) POFA).
6. The date of the alleged contravention is 18 July 2018 (day 0). The issued date of the Notice to Keeper is 31 July 2018 (day 13). Under [section xx] the Notice to Keeper is deemed to be delivered two days after the issued date. Deemed delivery was therefore on 2 August 2018 (day 15). This is outwith the 14 day period required by Schedule 4 section 9(5) POFA. The Notice to Keeper was actually delivered by post to the Defendant’s address on 3 August 2018 (day 16).
7. This means that, the Notice to Keeper failed on the strict date of service. It arrived too late to be deemed compliant with the POFA, which is sufficient in itself to rule out ‘keeper liability.’
8. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of the POFA, which makes no such provision. In the alternative, an amendment could have been made to s172 of the Road Traffic Act 1988 which continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence had been committed. Those provisions do not apply to this matter.
9. 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 terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
10. Further and in the alternative 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.
Inflation of the charge – double recovery – abuse of process
11. Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.
12. CPR 44.3(2) states: “Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
13. Whilst quantified costs can be considered on a standard basis, this Claimant’s purported costs are wholly disproportionate and do not stand up to scrutiny. 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.
14. In fact it is averred that the Claimant has not paid or incurred such damages / costs or ‘legal fees’ at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.
15. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any of their case in damages.
16. It is indisputable that the 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 and binding precedent, that the PCN already covers the cost of the letters.
17. The suggested ‘legal costs’ are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. [The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.]
18. According to Ladak v DRC Locums UKEAY/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.
19. POFA Schedule 4 makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant ‘Notice to Keeper’ (and the ceiling for a ‘parking charge,’ as set by the trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including ‘adequate notice’ of the parking charge and prescribed documents served in time/with mandatory. It is submitted that the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleased, constitutes double recovery.
20. Judges have disallowed all added parking firm ‘costs’ in County courts up and down the country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2010 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal’s robo-claim model) and one by the current Claimant, who is an IPS member serial claimant (using Gladstone’s robo-claim model) yet the Order was identical in striking out both claims without a hearing:
“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 judgement in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998…”
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 and indeed mendacious in terms of the added costs alleged.
21. There are several options available within the Courts’ case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.
22. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not lease due to the abuse of process is repeatedly attempting to claim fanciful costs which they are not entitled to recover.
Statement of Truth
I believe that the facts stated in this Defence are true.
xxxxxxxxxxxxxxxxxxxxxxxxxxxx
………………………………………………… Signature
………………………………………………… Date
I am assisting my husband with the claim. I filed his Acknowledgement of Service online today (21/1/20). I did a subject access request to UKCPM data controller (details via the website) on 17/1/20.
We previously ignored all correspondence from UKCPM / Gladstones, save one online appeal where we did not name the driver.
The circumstances were no windscreen ticket issued. The PCN was the first correspondence received and was deemed to be delivered on day 15, so outwith the 14 day period for keeper liability. My husband is the keeper. As far as I can recall, he was actually out of the country on the date of the alleged contravention so was not the driver.
Our draft defence is below; any comments would be very much appreciated.
I would also be grateful for guidance on what docs to attach to the defence. I found reference to the two judgements which I understand struck out other claims at an early stage based on abuse of process.
IN THE COUNTY COURT
CLAIM No: xxxxxxxxxxxxxxxxx
BETWEEN:
UK CAR PARK MANAGEMENT LTD (Claimant)
-and-
xxxxxxxxxxxxxxxxxxxxx (Defendant)
________________________________________
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is admitted that at all material times the Defendant is the registered keeper of the vehicle, registration xxxxxx (the Vehicle), which is the subject of these proceedings. The Vehicle is insured with [provider] with three named drivers permitted to use it. The Defendant denies that he was the driver of the Vehicle at the time of the alleged contravention, because he was in [ ] on a business trip from [date] to [date ].
2. 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.
3. 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.
4. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in Schedule 4 of the Protection of Freedoms Act 2012 (POFA).
4.1 It is not admitted that the Claimant has complied with the relevant statutory requirements. Before seeking to rely on the keeper liability provisions of POFA, the Claimant must demonstrate that:
4.1.1 there was a ‘relevant obligation’ either by way of breach of contract, trespass or tort; and
4.1.2 that ‘adequate notice of the parking charge’ was given to the driver at the time of the parking event; and
4.1.3 that it followed the required deadlines and wording as described in the POFA to transfer liability from the driver to the registered keeper.
5. It is a fact that there was no windscreen ticket left on the Vehicle at the time of the alleged contravention. For the liability to be transferred from the driver to the keeper when there is no windscreen ticket, the Notice to Keeper has to be received within 14 days of the alleged infringement (Schedule 4, section 9(5) POFA).
6. The date of the alleged contravention is 18 July 2018 (day 0). The issued date of the Notice to Keeper is 31 July 2018 (day 13). Under [section xx] the Notice to Keeper is deemed to be delivered two days after the issued date. Deemed delivery was therefore on 2 August 2018 (day 15). This is outwith the 14 day period required by Schedule 4 section 9(5) POFA. The Notice to Keeper was actually delivered by post to the Defendant’s address on 3 August 2018 (day 16).
7. This means that, the Notice to Keeper failed on the strict date of service. It arrived too late to be deemed compliant with the POFA, which is sufficient in itself to rule out ‘keeper liability.’
8. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of the POFA, which makes no such provision. In the alternative, an amendment could have been made to s172 of the Road Traffic Act 1988 which continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence had been committed. Those provisions do not apply to this matter.
9. 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 terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
10. Further and in the alternative 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.
Inflation of the charge – double recovery – abuse of process
11. Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.
12. CPR 44.3(2) states: “Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.
13. Whilst quantified costs can be considered on a standard basis, this Claimant’s purported costs are wholly disproportionate and do not stand up to scrutiny. 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.
14. In fact it is averred that the Claimant has not paid or incurred such damages / costs or ‘legal fees’ at all. Any debt collection letters were a standard feature of a low cost business model and are already counted within the parking charge itself.
15. The Parking Eye Ltd v Beavis case is the authority for recovery of the parking charge itself and no more, since that sum (£85 in Beavis) was held to already incorporate the minor costs of an automated parking business model. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any of their case in damages.
16. It is indisputable that the 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 and binding precedent, that the PCN already covers the cost of the letters.
17. The suggested ‘legal costs’ are also made up out of thin air. Given the fact that robo-claim solicitors and parking firms process tens of thousands of claims handled by an admin team or paralegals, the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims. [The court is invited to note that no named Solicitor has signed the Particulars, in breach of Practice Direction 22, and rendering the statement of truth a nullity.]
18. According to Ladak v DRC Locums UKEAY/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.
19. POFA Schedule 4 makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant ‘Notice to Keeper’ (and the ceiling for a ‘parking charge,’ as set by the trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including ‘adequate notice’ of the parking charge and prescribed documents served in time/with mandatory. It is submitted that the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleased, constitutes double recovery.
20. Judges have disallowed all added parking firm ‘costs’ in County courts up and down the country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed an earlier General Judgment or Order of DJ Grand, who on 21st February 2010 sitting at the Newport (IOW) County Court, had struck out a parking firm claim. One was a BPA member serial Claimant (Britannia, using BW Legal’s robo-claim model) and one by the current Claimant, who is an IPS member serial claimant (using Gladstone’s robo-claim model) yet the Order was identical in striking out both claims without a hearing:
“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 judgement in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998…”
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 and indeed mendacious in terms of the added costs alleged.
21. There are several options available within the Courts’ case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.
22. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not lease due to the abuse of process is repeatedly attempting to claim fanciful costs which they are not entitled to recover.
Statement of Truth
I believe that the facts stated in this Defence are true.
xxxxxxxxxxxxxxxxxxxxxxxxxxxx
………………………………………………… Signature
………………………………………………… Date
0
Comments
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With a Claim Issue Date of 13th January, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 17th February 2020 to file your Defence.sleepisfortheweak wrote: »My husband has received a claim form from the County Court Business Centre, from UK Car Park Management Ltd. Issue Date of 13 January 2020, in respect of a contravention on 18 July 2018.
I am assisting my husband with the claim. I filed his Acknowledgement of Service online today (21/1/20).
That's nearly four 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.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- 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'.
- 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...- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
- 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.
- 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.
- Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.
0 - Sign it and date it.
-
No documents are attached to a defence, save that for witness statement (WS) stage. You refer to the struck out judgments (as per the CEC16 and basher52 threads or the Abuse of Process thread by beamerguy) in your defence but then add them as evidence at WS.
ETA Check out the latest Abuse of Process thread and the comment at post # 14 of that thread as I believe the latest advice from Coupon-mad has changed.0 -
Thanks very much. I have rewritten the abuse of process section in accordance with the updated guidance you referred to. I would be grateful if you could let me know if any other changes are needed, or if this is not ok to submit.
IN THE COUNTY COURT
CLAIM No: xxxxxxxxxxxxxxxxx
BETWEEN:
UK CAR PARK MANAGEMENT LTD (Claimant)
-and-
xxxxxxxxxxxxxxxxxxxxx (Defendant)
________________________________________
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is admitted that at all material times the Defendant is the registered keeper of the vehicle, registration xxxxxx (the Vehicle), which is the subject of these proceedings. The Vehicle is insured with [provider] with three named drivers permitted to use it. The Defendant denies that he was the driver of the Vehicle at the time of the alleged contravention, because he was in [ ] on a business trip from [date] to [date].
2. 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.
3. 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.
4. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in Schedule 4 of the Protection of Freedoms Act 2012 (POFA).
4.1 It is not admitted that the Claimant has complied with the relevant statutory requirements. Before seeking to rely on the keeper liability provisions of POFA, the Claimant must demonstrate that:
4.1.1 there was a ‘relevant obligation’ either by way of breach of contract, trespass or tort; and
4.1.2 that ‘adequate notice of the parking charge’ was given to the driver at the time of the parking event; and
4.1.3 that it followed the required deadlines and wording as described in the POFA to transfer liability from the driver to the registered keeper.
5. It is a fact that there was no windscreen ticket left on the Vehicle at the time of the alleged contravention. For the liability to be transferred from the driver to the keeper when there is no windscreen ticket, the Notice to Keeper has to be received within 14 days of the alleged infringement (Schedule 4, section 9(5) POFA).
6. The date of the alleged contravention is 18 July 2018 (day 0). The issued date of the Notice to Keeper is 31 July 2018 (day 13). Under [section xx] the Notice to Keeper is deemed to be delivered two days after the issued date. Deemed delivery was therefore on 2 August 2018 (day 15). This is outwith the 14 day period required by Schedule 4 section 9(5) POFA. The Notice to Keeper was actually delivered by post to the Defendant’s address on 3 August 2018 (day 16).
7. This means that, the Notice to Keeper failed on the strict date of service. It arrived too late to be deemed compliant with the POFA, which is sufficient in itself to rule out ‘keeper liability.’
8. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of the POFA, which makes no such provision. In the alternative, an amendment could have been made to s172 of the Road Traffic Act 1988 which continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence had been committed. Those provisions do not apply to this matter.
9. 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 terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.
10. Further and in the alternative, 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.
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.’
11. 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.
12. 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.
13. Whilst quantified costs can be considered on a standard basis, this Claimant’s purposed 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
14. 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 inflate 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 on the parking firm) covers the costs of the letters.
15.1. 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.” And at para [199]: “What matters is that a charge of the order of £85 […] is an understandable ingredient of a scheme serving legitimate interests.”
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 ATA Code of Practice are against this Claim
16. POFA Schedule 4 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 that their artificially inflated claim, as pleaded, constitutes double recovery.
The Consumer Rights Act 2015 (the CRA) 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 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 judgement for a sum that could not otherwise by 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.
18.1 In the Caernarfon Court in Case number F2QU4W28 (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.”
18.2. That decision in Wales was contested in a N244 application by VCS, but the added £60 was sill 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.
18.3. 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 judgement 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.
18.3.1. Cases summarily struck out in that circuit include 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 judgement 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…”
18.3.2. 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 or 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.
18.3.3. 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.
18.3.4. 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.
18.3.5. 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 judgements 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 judgement of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.”
18.4. 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 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.
18.5. 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.”
19. 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.
19.1. 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.”
20. In summary, the Claimant’s particulars disclose no legal basis for the sum claimed and it is the Defendant’s position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant’s vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.
21. 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.
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 are true.
xxxxxxxxxxxxxxxxxxxxxxxxxxxx
………………………………………………… Signature
………………………………………………… Date0 -
You have a bit of a paragraph mix up between 10 & 11.0
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Thanks. This was a bold heading in my word doc, but the formatting hasn't copied over to this thread.
Is the defence otherwise ok to send (subject to formatting and filling the blanks at the start)?0 -
[FONT=Times New Roman, serif][FONT=Times New Roman, serif]Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.
Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.
Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.
[/FONT][FONT=Times New Roman, serif]http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted[/FONT][FONT=Times New Roman, serif]
Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT][/FONT]You never know how far you can go until you go too far.0 -
Seems to contain all the usual points plus the Abuse of Process part.0
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