Delayed issue of PCN

johnedit

Hi Friends (especially Coupon-mad who i am probably going to annoy by continuing to mention the PoFA) but I have now received a County Court Claim Form and submitted my Acknowledgement Of Service on-line as per In the instructions provided by Bargepole.

I note the replies in this thread which point out that it is not possible to achive a NTK being declared void - thanks to those who posted. However, I have noticed that the Newbies Section makes specific reference to the
POFA Schedule 4 where it is a Postal NTK - which is what I received. I read that it does not make the
 PCN Void but means there is 'no keeper liability' possible.

I am now preparing my Defence submission - the draft of which I have posted below. Rightly or wrongly I have included all the information I feel pertinent BUT I would  welcome input form this Forum's Experts as to what I should leave out and what I should include - especially for the section listing prior Court Cases.

I have also prepared a draft for my Witness Statement which describes and details observations from the Driver's viewpoint. Should I post this here and now?

Your help and advice is much appreciated.

DRAFT DEFENCE:-

IN THE COUNTY COURT

 Claim No.: XXXXXXXX

 Between

 (Claimant)

 - and - 

  (Defendant)

 ____________________

 DEFENCE

 ____________________

 1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

 

The facts as known to the Defendant:

 2.       It is admitted that the Defendant was the driver and is the registered keeper of the vehicle in question but liability is denied.

 3.         The Claimant has identified themselves as an Accredited Operator and Member of the International Parking Community – as such, they have agreed to operate in accordance of their Code Of Practice.

 In situations whereby the Keeper’s Details are sought in order to serve a liability for Charges, the Claimant thereby agrees to seek such details and serve the associated Parking Charge Notice/Notice to Keeper in accordance with the Independent Parking Committee – Code of Practice – Part C, under Section1.2   which states:-

If you intend to be able to recover unpaid parking charges from the keeper of a vehicle you must request Keeper details in accordance with Schedule 4 of the Protection of  Freedoms Act 2012.

Part C, Section 1.3 of the IPC Code of Practice states:-

 You must not imply that the registered keeper can be held responsible for the parking charge under the Protection of Freedoms Act unless the relevant time limits within the Act have been met.

Accordingly, the Protection of Freedoms Act, Schedule 4,  Paragraph 9 requires a notice associated with the recovery of unpaid parking charges to served within a ‘relevant period’ and Sub-Paragraph (5) serves to determine the ‘relevant period’ as being 14 days :-

Schedule 4

Recovery of unpaid parking charges

Paragraph 9

Sub-Paragraph (4) The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

Sub-Paragraph (5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

As the Parking Charge Notice/Notice To Keeper associated with this Claim was sent on the 10 of January 2020 – a full 113 Days after the ‘Contravention Date’, I submit this contra veined the Act and thereby failed to comply with this directive.

 

 4.         Abuse of Process.

 The Claimant’s addition of £50.00 has been determined by the following County Court Judges as an abuse of process and accordingly the associated Claims were dismissed.

QUESTION: WHICH CASES SHOULD BE LISTED HERE (IF APPROPRIATE)?

 

5.         The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

 

6.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

 

7.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85. 

 

8.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

 

9.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

 

10.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases. 

 

11.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

 

12.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach. 

 

13.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

 

14.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

 

15.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

 (i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

 (ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

 both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

 (ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

 where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

 

16.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

 

 17.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

 18.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

 (b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

 

19.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

 

Statement of Truth

 

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Defendant’s signature:

 

Date:

Coupon-mad

Remove this. The template already more than covers the fact that added 'debt recovery' costs are double recovery (don;t use the phrase 'abuse of process'):

 4.         Abuse of Process.
 The Claimant’s addition of £50.00 has been determined by the following County Court Judges as an abuse of process and accordingly the associated Claims were dismissed.
QUESTION: WHICH CASES SHOULD BE LISTED HERE (IF APPROPRIATE)?

johnedit

WOW! Coupon-mad - that was a incredibly fast reply.

I didn't see any specific reference as to when I should submit the Defence - just ASAP? and, should I post the draft of my Witness Statement?

You are truly a star and your help is truly appreciated.

KeithP

johnedit said:

I have now received a County Court Claim Form and submitted my Acknowledgement Of Service on-line as per In the instructions provided by Bargepole.

What is the Issue Date on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

johnedit said:

I didn't see any specific reference as to when I should submit the Defence - just ASAP?

When you answer the above questions all will be revealed. 

1505grandad

You have 2 IPC names in para 3

johnedit

Hi, Keith. The Issue Date was 10 March 2021 and filed my Acknowledgement on-line on the 18th March 2021

KeithP

johnedit said:

The Issue Date was 10 March 2021 and filed my Acknowledgement on-line on the 18th March 2021

With a Claim Issue Date of 10th March, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 12th April 2021 to file your Defence.

That's nearly three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

johnedit

To 1505grandad - thanks for having sharp eyes! :-)

To Keithp - Thanks for the clarification, Keith. I will post my Draft Witness Statement in the next day or so for valuable comments from this Forum's Members. I note the timescale and will ensure this is sumbitted in time and by email as detailed in the Newbies Thread.

Coupon-mad

You are ahead of the game by prepping a WS that won't be needed until the Summer!  Also don't forget you might need to add to it, based upon what the C says in their WS, if you are lucky enough to see it first.  But that's way in the future.

Have you revelled in the good news that the Government has really listened to the needs of consumers and big changes are afoot to stop this scam in future?

https://forums.moneysavingexpert.com/discussion/6252788/victory-for-motorists-mhclg-caps-parking-charges-at-50-80-in-london-with-mandatory-50-discount/p1

The APAs' response involves toys and prams, and threats of the sky falling in:

https://www.britishparking-media.co.uk/news/government-consultation-response-heralds-the-end-of-free-parking-for-everyone

johnedit

Hi, Coupon-mad. Thanks for alerting me to the fact that a WS will not be needed anytime soon - and that I may need to include comments about anything the Parking Company may put in their WS - excellent info, as usual :-)

Ah, at last the world seems to be ready to take a reasonable stance against this extortionate practice. Beware - you may have a lot of free time on your hands in the future! :-)