UK Car Park PCN - Help Needed

ParkerCarrie

Hi All, need some advice regarding a PCN from UK Car Park for "not displaying a valid permit" in the communal car park of my residence. I have read through the sticky for the newbies and would like help with my situation.

Question 1 - primacy of contract : I am not clear whether this only applies to owners (leaseholder or freeholder) or also to tenants? My tenancy agreement provides that I may have use of the communal parking area when and where available (no mention of the requirement of a permit). My tenancy agreement also provides that I must comply with the head lease which does not mention a permit either. Can I use the primacy of contract defence?

Question 2 - prohibitive notice : The signs in the residence are entitled "Parking Conditions" and provide "a valid UKCPM permit must be clearly displayed in the front windscreen at all times.
If unsure please seek further advice from CPM or refrain from parking."
and : "By entering or remaining on this land you agree to abide by all of the terms and conditions. Breach of ANY of term or condition will result in the driver being liable for a parking charge of £100".
Can this be considered as prohibitive as there is no offer of parking to those who are not displaying a permit and therefore no contract can have been entered into?

Any help will be greatly appreciated. I have until tomorrow to decide whether to return the Admission Form or the acknowledgment of notice.

Thank you very much

The_Deep

Your AST gives you primacy over a scammer's self serving T&C. They can offer you nothing which you do not already possess b virtue of your AQST so there can be no contract between you. Have you read this?

[FONT=Times New Roman, serif][FONT=Times New Roman, serif]http://parking-prankster.blogspot.com/2016/11/residential-parking.html[/FONT][/FONT]

[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 in some cases, cancellation.

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.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.[/FONT]

nosferatu1001

So you HAVE a claim already
You will NOT be "returning a form" - go ONLINE today, click defend in full, and give yourself the extra itme!

What is your ISSUE DATE?

Coupon-mad

You are not admitting to any sum. You owe nothing.

PCN from UK Car Park for "not displaying a valid permit" in the communal car park of my residence.

UKCPM?

Read all results, defences, and winning arguments used by the posters on the threads you find when you search the forum for:

UKPCM JACK CHAPMAN SIGNATURE

Loads of them will be residential ones, just like yours, and all won or about to win.

KeithP

ParkerCarrie wrote: »

I have until tomorrow to decide whether to return the Admission Form or the acknowledgment of notice.

As nosferatu1001 says, it looks like you have a County Court Claim Form.

What is the Issue Date on that form?

ParkerCarrie

Thank you all very much for your responses.
Yes I have received a Claim Form from the County Court Business Centre.
The issue date is 13 Jan 2020, so I have worked out that I must respond by 31 Jan or 1 Feb (?).
I will go online tonight to chose to defend myself!
Thanks again

KeithP

ParkerCarrie wrote: »

Yes I have received a Claim Form from the County Court Business Centre.
The issue date is 13 Jan 2020, so I have worked out that I must respond by 31 Jan or 1 Feb (?).
I will go online tonight to chose to defend myself!

With a Claim Issue Date of 13th January, you have until Monday 3rd February to file an Acknowledgment of Service, but there is nothing to be gained by delaying it. To file an AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having filed an AoS, you have until 4pm on Monday 17th February 2020 to file your Defence.

That's over two 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 linked from post #2 of the NEWBIES thread.
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

I will go online tonight to chose to defend myself!

Yes but only doing the AOS - not the defence. DO NOT 'START DEFENCE'!

ParkerCarrie

Thanks all very much for your precious advice. I have until Monday to send my statement of defence. I have made an attempt at a statement of defence. I would be very interested in your thoughts.
In particular I have not include the forbidding nature of the signage as I am not sure it applies in my case? Should I add it anyway?
Also I am not sure what the lack of cause of action argument is trying to achieve in the Preliminary section. Should I delete it? 
Thank you very much!
(PS to provide further background, we got the parking ticket the day we moved into the residence. We had no idea about the permit which the letting agent never mentioned and we honestly did not see the signs and would have anyway not suspected they applied to us as residents...)
***

In The County Court Business Centre Claim No: XXXX

BETWEEN UK CAR PARK MANAGEMENT LIMITED

Claimant 

-and-

XXXXX

Defendant

 DEFENCE

1. Preliminary

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

1.2. The Particulars of Claim on the N1 Claim Form state that the Defendant was ‘the driver/keeper of the Vehicle’ which indicates 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.

2. Background

2.1. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration xxxxxx which is the subject of these proceedings.

2.2. The Defendant is a resident of a block of flats (named ‘XXX’) pursuant to an Assured Shorthold Tenancy Agreement dated XXX (hereafter refered to as the "Lease"). Under the Lease the Defendant is granted the right "to have use of the communal parking area when and where available”. The Lease contains no clause requiring a permit to park, nor any clause requiring the tenant to make payments to any third party.

2.3. The Defendant’s vehicle was parked in said communal parking area on the material date in accordance with the terms of the Lease.

2.4. The parking areas in the residence consists of (i) closed garages, (ii) marked private parking bays with fold down metal posts located near the porters’ offices at the entrance of the blocks and (iii) a communal parking area on the residence’s roadway along the lawn - twenty-five to thirty cars can park on one side of this roadway. This communal parking area has no defined parking bays or marking of any kind but is a general area for residents of XXX for parking.

3. No Breach of Contract

3.1. Authority to park and Primacy of Contract

3.1.1. The Particulars of Claim refer to the material location as XXX and the material date as XXX.

3.1.2. Under the terms of the Lease the Defendant held legal title to Flat No. XXX at that location and to use the communal parking area as from XXX.

3.1.3. There are no terms within the Lease requiring the lessee to display a parking permit, or to pay penalties to third parties, such as the Claimant, for non display of same.

3.1.4. The Defendant avers that the Claimant, who is a third party to the Lease, cannot unilaterally vary its terms.

3.1.5. The Defendant will rely upon PACE v Mr (N Redacted), case C6GF14F0 in Croydon county court where the case was heard by District Judge Coonan. The Judge in that case found that the parking company could not amend the terms of the tenancy agreement to bind a tenant, but rather that it would have to be the other party to the contract. In summing up he stated " I have before me a tenancy agreement which gives Mr [N. redacted] the right to park on the estate and it does not say “on condition that you display a permit”. It does not say that, so he has that right. What Pace Recovery is seeking to do is, unilaterally outside the contract, restrict that right to only when a permit is displayed. Pace Recovery cannot do that."

3.1.6. The presence of the Claimant's signage, and the purported contractual terms conveyed therein, are thus incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the Lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

3.2. No Contract with the Claimant

3.2.1. The Claimant avers that the Defendant entered into a contract with them by parking in the communal parking area. However there could be no offer to the Defendant to park and no acceptance by the Defendant as the Defendant already had authority to park in the communal parking area under the Lease. 

3.2.2. Moreover there was no consideration as the Defendant already had the right to park in the residential car park under the Lease, which he already pays for as part of his monthly rent. The Defendant will rely on the case of UKPC v Mr Aziz in which District Judge Gibson ruled that residents (or their visitors) would not agree to pay a charge of £100 to park in spaces they owned. The Defendant will also rely on the case of VCS Ltd v Miss R in which the Judge ruled that parties to a contract must exchange something of value in order for there to be a consideration and VCS Ltd could not offer Miss R anything of value as she already had the right to park in her residential parking space.

3.2.3. The elements of a contract are therefore missing and it is denied that the Claimant has any standing to bring a claim against the Defendant for breach of contract.

4. Alternative Defence – Failure to set out clear terms (Signage)

4.1. Illegible and insufficient signage

4.1.1. The Defendant avers that the parking signage stated in this matter was, without prejudice to his primary defence above, inadequate and therefore cannot constitute the establishment of fair terms. 

4.1.2. The signage at the specified location was at the time of the material events deficient in distribution, wording, text size, physical condition and illumination to reasonably convey a contractual obligation. It did not and still does not comply with (i) the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was and is signatory. Specifically, the Claimant is in breach of Part E Schedule 1, nor (ii) the minimum requirements contained in part 18 of the BPA code of practice. Appendix B of the BPA Code of Practice, entrance signage, notably states that: “The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

4.1.3. There was no visible signage requiring a permit at the entrance of the residence and the Claimant's existing signage was displayed in a font which is too small to be read from a passing vehicle. 

4.1.4. The Defendant will rely on Link Parking v Mr L C9GF5875 [2016] where it was found that there was no entrance sign at a residential site and as a result the case was dismissed.

4.1.5. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

4.2. Unclear and confusing signage content

4.2.1. 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, even if they were seen.

4.2.2. The Claimant’s signs do not clearly advertise that the communal parking area is a permit car park. The signs state "a valid permit must be clearly  displayed in the front windscreen at all times" and that vehicles must be parked "wholly within a marked bay. No parking on roadways/yellowlines/paved/hatched or landscaped areas". However, (i) the communal parking area consists of the side of the residence’s roadway and (ii) there are no marked bays on this roadway.

4.2.3. One can therefore reasonably conclude that the Claimant's signage does not apply to the communal car park which is available to all residents but rather only to the privately allocated spaces which consist of marked bays and are occupied by residents or non-residents.

4.2.4. The Defendant will therefore rely on the contra proferentem rule which renders this particularly unclear signage inapplicable to the Defendent.

5. Fairness of the contractual terms and the ‘penalty’ in question

5.1. Section 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999 provides that “a contractual term which has not been individually negotiated shall be regarded as unfair if contrary to the requirement of good faith it causes a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumer”. The contract which the Claimant seeks to impose and which the Defendant had no choice but to enter into has not been individually negotiated and the Defendant avers that is therefore clearly unfair within the meaning of the 1999 Regulations.

5.2. The Claimant has added the sum of £50 to the original £100 parking charge for which no explanation or justification has been provided. Under Schedule 4 of the Protection of Freedoms Act the maximum sum which can be recovered is that specified in the Notice to Keeper which in this instance is £100. The Defendant avers that this additional sum represents an attempt at double recovery by the Claimant which the court should not uphold even in the event that judgment for Claimant is awarded. Furthermore the Defendant avers that no Legal Representative’s costs have actually been incurred by the Claimant and that the letters the Legal Representatives have sent are templates used as part of their mass litigation operation.

6. Summary

In summary the Defendant avers 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 the facts stated in this Defence are true.

Signed:

Full Name:

Dated:

Coupon-mad

Replace #5 onwards, with this (covers two posts here!) that I've adapted from a template defence that I am currently working on as a suggested 'one size fits all except Parking Eye' defence:

The test of fairness - breaches of the Consumer Rights Act 2015, Schedule 2 ('the CRA') 

5.   In accordance with s71(2) of the CRA, the court has a duty to consider the test of fairness in any consumer contract (whether the Defendant mentions the CRA or not) and specific attention is drawn to paragraphs 6, 10, 14 and 18 from the indicative list of unfair terms.  The Defendant specifically raises this issue and invites the Court to find that the consumer notices themselves and/or the exaggerated sum claimed and the terms relating to permitted residents using the site are punitive and unfair.

6.  The Claimant cannot be heard to say that the Beavis case decided that the UTCCRs (at the time) did not apply and that the CRA is just another incarnation of the same statute, so the CRA can be disregarded.  For a Court to be persuaded by that, would be an error in law.  The Supreme Court considered the consumer law that applied at that time (and the Supreme Court decision was very specific to the facts and signs relating to the Chelmsford Retail park only), the Supreme Court did not consider the CRA, which was enacted afterwards. Consumer rights and remedies are not being met if the facts of each case (and the CRA and the Beavis case benchmark findings) are not properly considered: 

(i) The Beavis case sets very high bars and is authority for the contention that parking charges are not all enforceable and that in these cases, the penalty rule is certainly 'engaged' :  ''31…The question whether it is enforceable should depend on whether the means by which the contracting party’s conduct is to be influenced are “unconscionable” or (which will usually amount to the same thing) “extravagant” by reference to some norm.''  

(ii) And at paragraph 32: ''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.   In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

(iii)  And at paragraph 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. And at 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

(iv) And at paragraph 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.''

7.  The terms that give rise to parking charges at this location are not an 'understandable ingredient of a scheme serving legitimate interests'.  Instead of merely deterring trespassers, the location is operated as a commercial business with the same onerous charges and litigation facing beleaguered residents, as would face a 'rogue parker' dumping a vehicle on the site.  Residents are clearly being targeted, often with a flurry of ticketing and covert photos of vehicles taking place overnight.  Residents lives are being made a misery, complaints about this rogue parking agent are building up as so many are being caught out by the 'concealed pitfall or trap' that this Claimant operates at residents' expense.  If they suggest they are there to offer a 'service' to residents then they have certainly failed in their obligations, by failing to investigate in advance, the terms of the head lease and tenancy agreements before 'parking enforcement' commenced.

8.  The CRA is very different from the previous UTCCRs, because for the first time 'consumer notices' (i.e. signs) are included, not just 'terms', and the official Government guidance about the 2015 legislation points out that even if signs include a price term, consumer notices - such as car park signs - are never excused by the CRA core exemption from the test of fairness.  

(i) At 2.43 of the CMA Guidance to the CRA it says (about terms): ''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.'' 

(ii) At 3.2 the CMA go further (specifically about consumer notices): ''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).'' 

(iii) The parking industry is the exception to this rule and cannot have been on the CMA's radar at the time of writing the above phrase.  Parking firms are fairly unique traders, in that they have no 'customers' to hold them to account, yet are consumer-facing, and this Claimant is demonstrating with this meritless claim, that they are driven not by consumer interests but purely by their own aims to make as much money as possible before the new Parking (Code of Practice) Act 2019 hopefully stamps out the worse excesses of this industry.  The worst of the rogue operators named and shamed in Parliament recently, indisputably 'wish' and positive set out to use hidden, unexpected or confusing terms on unclear or cluttered/small print wording, such that it becomes more difficult than it should be for a driver to comply.  In this case, permits are not an obligation known or communicated to the Defendant, at all.

(iv) The intention of this Claimant appears to be to exploit residents going about their normal daily life at this location, then refuse to cancel the charges and just plough on and sue everyone caught here, regardless of a Defendant relying upon their primacy of contract, easements and their right to peaceful enjoyment of the property. It is averred that little or no regard has been paid to consumer law by this trader in this case and they have no reason to improve their signs and systems all the time that more and more drivers are being caught out by them.  This is not an example of open dealing and good faith.   

The Claimant's evidence and landowner authority

9.  Evidence in parking charge claims filed by this Claimant is invariably flawed, undated and/or unreliable, being advanced by way of ambush shortly before the trial, typically appended to a template statement purportedly signed by a ''witness'' who has never been to the location, has no personal knowledge and who will not appear at the hearing to be questioned.   Currently, this Claimant and their solicitors, Gladstones, are the subject of an active investigation by the Solicitors Regulation Authority for filing copy & paste statements littered with errors and repetition, that were unlikely to have been written or signed by any employee of UKCPM Ltd.   

9.1. If this claim survives the scrutiny of the Judge and if a hearing is set, the Defendant invites the Court to disallow vague, late or hearsay evidence from this Claimant and if the 'signature' is a facsimile, the Defendant questions whether that person even exists and expects to be afforded the opportunity to question the named signatory in person, at trial.

10.  Further, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or the necessary authorisation from the landowner to issue parking charge notices to residents and to pursue them by means of litigation.  It is not accepted that the Claimant has adhered to the landholder's instructions, definitions, exemptions, grace period, or other terms.  The Defendant invites the court to disregard any purported landowner 'contract' which is in any way redacted (including the signatories) and which fails to properly identify the two contracting parties. The Defendant has the honest belief that there is an absence of the freehold landowner's authority, and that the Claimant has a bare licence to put signs up, from a Managing Agent (not the landowner) and that this entire operation is a private nuisance to the residents and represents a derogation from grant that the Court should not support. 

 

11.   The Defendant further avers that the following would also be unacceptable or at least objectionable as being of no  evidential value and capable of abuse, manipulation or misdirecting the Court:  undated site maps; aerial view (typically mocked up using GoogleStreetView with flags or crosses liberally dotted around); 'stock' images or artwork; photographs where the timings can easily be changed; undated or old/archive photographs of signs; or those where the sign (even if alleged to be within the site) is not identifiable as being close to the route taken, having regard to the signage placement, lighting and other details.  It is not accepted that the Claimant has complied with its Trade Body Code of Practice ('CoP') as regards mandatory signs or any other CoP rule that may later be called into question and revealed by the lack of evidence and the Defendant has seen nothing to suggest that the car was parked in contravention of any terms.  The Defendant is having to guess, but this Claimant is known to take predatory photos over a period of just a few minutes, paying no regard to the mandatory Grace period (a minimum of ten minutes).  

Abuse of Process - exaggerated sums which taint claims of this nature and amount

12.    The POFA, 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.  That sum cannot exceed the Trade Body ceiling of £100, yet the claim includes a substantial additional sum for which no explanation is given, and which appears to be an attempt at double recovery.  

13. The Court is invited to consider summarily striking out this claim, following the leads set by:

(i) District Judge Grand at Southampton (2019 - to date, multiple cases/AOS members of both Trade Bodies)

(ii) District Judge Taylor at the Isle of Wight  (2019 - to date, multiple cases/AOS members of both Trade Bodies)

(iii) Deputy District Judge Josephs at Warwick (2019 - to date, multiple cases/AOS members of both Trade Bodies)

(iv) District Judge Wright, at Skipton (January 2020, multiple cases, including Excel Parking Services Ltd and others)

13.1.  All of the above Courts continue to summarily strike out all exaggerated private parking claims as 'an abuse of process', citing the Beavis case, the POFA and the CRA Schedule 2 and s71(2).   Judge Grand stated on 11th November 2019 in refusing a set aside application from BW Legal/Britannia Parking, that his decision was that the multiple private parking claims before Judges on that circuit were almost all 'tainted' bearing in mind that to allow such claims to continue to hearings (just by striking off, on a case by case basis, the 'double recovery' additional false damages of c.£60) would be to fail consumers who are faced in every case with possible default judgments for significantly exaggerated sums.  

13.2.  Exaggerated judgments are currently occurring unabated in tens of thousands of private parking claims per annum, which it is averred, allows a cartel-like 'price hike' to operate and be waved through in cases where Defendants fail to defend for whatever reason, making a mockery of the court process and consumers alike.   All AOS member parking firms and both Trade Bodies are well aware of the multiple cases that are being summarily struck out since 2019, and instead of getting their house in order and removing the offending sums, they continue to file claims such as this and it seems they are concentrating on the diminishing court areas where Judges appear not to be taking such action, yet.

14.  The Claimant will no doubt try to mislead the court by pointing to a clause in their own Trade Body's CoP that appears to 'allow' added sums by way of damages, as if somehow that supports the false sum that taints this claim.  The Defendant reminds the court that the IPC CoP is a self-serving document, written by and for the parking firms themselves.  Until a relatively recent re-shuffle of Companies House officers, the IPC Trade Body shared directors with the solicitor firm, Gladstones in a clear conflict of interests.  

14,1.  The two competing 'race to the bottom' CoPs from the Trade Bodies who have engineered a veil of legitimacy to protect this industry for too long, are not regulators at all and have failed consumers so badly, that Parliament is currently working on replacing them with a new CoP overseen by the Secretary of State, following the initial enactment of the Parking (Code of Practice) Act 2019.    

14.2.  In the Beavis case, the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages, yet this Claimant continues to do so by adding false 'costs'.  Gary Osner, founder of 'parking charge debt collection' company ZZPS and a member of the British Parking Association Board, has to this Defendant's knowledge not been reported as saying anything at all about consumer rights and remedies, good faith or fairness.  Instead he states in an article that has been in the public domain since 2018:  ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.''   

14.3.  This money-driven mindset is in stark contrast with the will of Parliament in the new 2019 Act, which is consumer focussed: ''good practice means such practice in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.''

Coupon-mad

15.   As now observed by a growing list of Judges, in the Beavis case, the Supreme Court expressly approved that parking charge because it included all of the very minimal costs of an automated parking enforcement operation, including debt collection and pre-action letters.   The Supreme Court stated no less than three times that the business model's debt recovery/operational costs 'must' already fall within the parking charge, if such a charge is to be held to be a justified/necessary deterrent and disengage the 'penalty rule'.   It could not have been made much clearer by the Supreme Court, that whilst on the one hand, a parking charge does not have to represent 'loss' and will be higher than the usual limited 'damages' remedy for breach of contract, on the other hand it 'has to' be set at a level that includes the costs of the operation.  To quote from the Beavis case:

(i) at para 98. ''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...'' 

(ii) 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.'' 

(iii) 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.''[/COLOR]

16.   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 Defendant is of the view that this Claimant knew or should have known that an exaggerated claim in excess of £100 for a parking charge which cannot have the same costs added again, is disallowed under the CPRs, the Beavis case, the POFA and the CRA.  

17.  Given the fact that this is a disproportionate, unconscionable and exaggerated claim, it is an abuse of process and relief from sanctions should be refused.  Merely disallowing the added 'debt collection/admin fee/damages/indemnity' sum on a case-by-case basis for those relatively few Defendants who see their cases through to a hearing, as has been happening in recent years, is not enough and fails to pay due regard to the interests of consumers.  

18.  The Court is invited to summarily strike out the entire claim, as other Court circuits continue to do.  A copy of a judgment or order striking out a similar claim is attached to this defence and the Court is invited to use it as a draft order under the Court's own case management powers and exercise their duty under the CRA 2015, s71(2).

Statement of Truth:
I believe that the facts stated in this Defence are true.

Name
Signature
Date

Attach to the email with your signed & dated defence, this Order:
https://onedrive.live.com/?authkey=%21AFoeBfyPOMwyD5c&cid=B05FB7882979432B&id=B05FB7882979432B%213964&parId=B05FB7882979432B%213392&o=OneUp