County Court Claim - Defence stage - Incomplete number plate

Laith25

I have updated the Defence with the suggestions made.... 
Please take a look at the final draft and comment... Thank you

IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx

BETWEEN:

One Parking Solution Ltd, 95 Arundel Road, Worthing, West Sussex, BN13 3EU

-and-

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
DEFENCE


1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at GS Car Park, Leicester, LE1 3DL on 19/04/2019

1.1. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

1.2. The Claimant has spent almost 8 months harassing the Defendant with ever increasing and intimidating demands pursuing this baseless charge, sending debt collector letters and causing the Defendant and their family significant distress, despite having no basis to charge £100 and despite knowing that the parking tariff was fully paid, with evidence provided in the form of the original parking ticket for the time on site.

1.3. The allegation appears to be based on images by the Claimant’s Automatic Number Plate Recognition (ANPR) camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper 'parking without a valid paid parking ticket’.

1.4. The Driver successfully made payment for a valid parking ticket by using an approved payment machine located on site at GS Car Park. This ticket was retained and provided as absolute, clear cut evidence at the time of appeal.
(a) Payment for parking was made via entering the correct vehicle registration number into the parking validation terminal within the GS Car Park site.
(b) The driver followed the instructions exactly as shown on the validation terminal.
(c) The validation terminal did not indicate any failure to input the vehicle registration correctly and responded as if the vehicle registration had been accepted. As such the driver believed the necessary process had been carried out successfully to obtain parking for the duration of the stay.

1.6. It is the Claimant’s own failure caused by their validation terminal that has given rise to a 'PCN' being not properly issued from the outset.

2. Consumer Protection from Unfair Trading Regulations (CPUTR) and British Parking Association (BPA) Code of Practice (CoP) - Breach

2.1. The Defendant, through research, has discovered that if a complaint had been made at the time of receipt of the parking charge notice (PCN), then the businesses on site (including One Parking Solution Ltd) had the authority to cancel the charge.

2.2. The Defendant avers that no signs and no paperwork from the Claimant gave any hint to the registered keeper, that the onsite businesses could easily cancel a charge. By withholding the route of cancellation/ complaint from a consumer the Claimant is 'misleading omissions' of material facts. These breaches of the CPUTRs 2008 have caused the unfair PCN, prevented its cancellation before proceeding started and this conduct by the Claimant has severely disadvantaged the Defendant.

2.3. The Defendant, through research, has discovered that the Claimant is a member of the British Parking Association (BPA) Approved Operator Scheme (AOS) and is in breach of its own Trade Body’s 2020 Code of Practice (CoP) that protects drivers in ‘keying error’ cases.

2.4 The Claimant knew in the pre-action phase in 2019, that this change to the CoP was coming, and the CoP now says that AOS members are expected to offer to recover a modest charge of no more than £20 for a 14-day period from when the keying error was identified before reverting to the charge amount at the point of appeal, but this was never offered. If a keying error did occur in this instance, then the Claimant is in breach of the BPA 2020 CoP.

3. Data Protection concerns

3.1. The registered keeper or driver had no idea about the ANPR surveillance and received no letters after the initial 'PCN', only a vague document which gave no indication as to what the alleged breach was. No photographic evidence of the terms supposedly on the car park signage has ever been supplied, not even in the postal PCN.

3.2. The Claimant is put to strict proof of any breach and of their decision-making in processing of the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £182 instead of seeking to recover a modest charge, if it is their case that this sum went unpaid.

3.3. Under the General Data Protection Regulation (GDPR), the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a car park where there would likely be no vehicles unconnected to patrons, no trespass nor 'unauthorised' parking events.

3.4. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of unsuspecting but circumspect visitors to GS Car Park, who get caught out by this trap.

3.5. Collecting vehicle registration data in order to inflate the 'parking charge' to £182 and write (weeks later) to registered keepers, whether they were driving or not, is excessive, untimely and intrusive to registered keeper data subjects.

4. Denial of contract and denial of any breach, or liability

4.1. Due to the sparseness of the Particulars of Claim (POC) 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 registered keeper, or the driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

4.2. According to the POC the Claimants ANPR system captured a vehicle entering and leaving the site without a valid paid parking ticket, however, vehicle registration was correctly entered into their parking validation terminal so any perceived breach is denied.

4.3. 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, especially with no 'grace period' mentioned. Any reasonably circumspect driver would be entitled to rely upon the BPA's interpretation and not expect to be penalised.

4.4. In any case, the Claimant is put to strict proof that it had sufficient proprietary interest in the land, or that it had the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation in its own name on the material date. The Claimant appears to be a contractor on an agent/principal basis operating under a bare licence to erect signs and collect money from the machines, and no doubt, to issue PCNs - but 'on behalf of' the landowner, which would give them no authority or standing.

5. No 'legitimate interest' or commercial justification - Beavis is distinguished

5.1 The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67. However, with no 'legitimate interest' excuse for charging this unconscionable sum given the above facts, this Claimant is fully aware that their claim is reduced to an unrecoverable penalty and must fail.

5.2. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim, where there was no breach, no right to issue a PCN for a keying error.

5.3. Differences in facts include but are not limited to: The signs/terms were not prominent; the PCN breached the BPA CoP in regards to keying error; the Defendant did not ignore the PCN; this was not a free car park which complicated the decision in Beavis, and the PCN bore no resemblance to the advertised tariff. As such, this case is fully distinguished in all respects from Beavis, where the decision turned on a legitimate interest in charging more as a deterrent, and clear notices proclaiming brief terms and an agreed contractual sum that did not impact on the rights and interests of drivers.

5.4. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the facts of this case. To quote from the Supreme Court:

i) 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''.

ii) Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

iii) 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.''


6. Unconscionable, punitive 'parking charge' - again, Beavis is distinguished

6.1. If the 'parking charge' was unpaid, then the sum 'owed' is a quantifiable figure. Despite paying the correct charge and returning and leaving GS Car Park within the allocated time purchased, the Defendant found the car had already had a predatory PCN applied demanding an extortionate £100 (also described also as the 'parking charge' but clearly being an unrecoverable penalty). This is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

6.2. Taking the comments of the Supreme Court (and the Court of Appeal in the earlier hearing in Beavis) into account, the 'parking charge' sum owed in this case can, at most, only be a percentage of the £1.30 per hour tariff. It can only be viewed in terms of a simple damages clause, where the sum allegedly 'owed' in debt is known.

6.3. This charge represents exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:

(i) At #22, in Beavis, the Supreme Court explored Lord Dunedin's speech in Dunlop:''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.''

(ii). And at #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 ParkingEye} [...] 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.''

6.4. The Court will be aware that Lord Dunedin's four tests for a penalty include the principle - which went unchallenged in the completely different 'free car park' considerations in the Beavis case - that: ''it will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid''.

6.5. No complicated manipulations of the penalty rule can apply to a standard contract like this one, with quantified damages, otherwise every trader could massage any £5 bill to suddenly become £500. In Beavis it was held that the claim could not have been pleaded as damages, as that would have failed. It was accepted that £85 was the sum for parking, and that was the 'parking charge' for want of any other monetary consideration in a free car park. It was not pleaded in damages, unlike here, where the sum for parking was a minuscule sum in pence (if unpaid, which it was not) and the Claimant is trying to claim damages of £100, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

7. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £50, which the Defendant submits have not actually been incurred by the Claimant.

7.1. These have been variously described as a 'ZZPPS Legal instructions fee' (in the pre-action exchange of letters) and/or a 'debt collection charge' (not part of any terms on signage and cannot be added, not least because it was never expended). Suddenly in the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £257.00. This would be more than double recovery, being 0vague and disingenuous and the Defendant is alarmed by this gross abuse of process.

8. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

9. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success.

I believe the facts contained in this Defence are true.


Name

Signature

Date

1505grandad

The fact you are quoting "Ladak v DRC Locums" shows you are using old Abuse of Process paras.

There is now a new suggested template defence posted by C-m a few days ago, to adapt for all parking charge cases where they add false admin costs:-

https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1

Laith25

Thank you, I will edit and post for comments..

newbieinthebuilding

1505grandad said:

The fact you are quoting "Ladak v DRC Locums" shows you are using old Abuse of Process paras.

There is now a new suggested template defence posted by C-m a few days ago, to adapt for all parking charge cases where they add false admin costs:-

https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1

Hi, I'm exactly in the same shoes as Laith25 (same car park, same PPC, same keying error). in my case, I only used the new 'Abuse Process' posted by Coupon-mad in my defence and didn't include anything about keying errors and driver having proof of ticket purchase on bank statement. Could I write that in my witness statement or I'm I not allowed to include it now as it wasn't part of my defence? please help

Laith25

Just drafted using the new template suggested. Is this good to go people? Thanks

1.        The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the driver of the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ to the Claimant.

2.       In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £257. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case. 

3.       The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty on the Court to consider the fairness of a consumer contract.  The court’s attention is drawn (but not limited to) parts 6, 10, 14 and

4.       18 of the list of terms that are likely to be unfair.

5.       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 costs. The sum exceeds the maximum amount which can be recovered from a registered keeper, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’).  It is worth noting that in the Beavis case where the driver was known, the Supreme Court considered and referred more than once to the POFA.

6.       Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019.  Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Appendix A)  and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Appendix .

7.       Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made. 

8.       The Judge found that the claims - both trying to claim £160, with some ten or more similar cases stayed - represented an abuse of process that ‘tainted’ each claim.  It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage.  That Judgment is appended (Appendix C).

9.       The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity.  The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided.  The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

10.   Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner 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.''  

11.   The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators 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 enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.  In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good 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.''  

12.   In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the Particulars of Claim are embarrassing and incoherent, lacking specificity re the location of the event and status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

13.   The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction.  The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’  And at [99] ‘‘the penalty rule is plainly engaged.’’

14.   Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable.  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 set a high bar that other claims fail to reach.  Unusually for this industry, it is worth noting that ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.

15.    This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged.  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.  The intention cannot be to punish drivers nor to present a motorist with concealed pitfalls or traps, nor to claim an unconscionable total sum.

16.   Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

17.  The Defendant is the main driver of this vehicle. It is not established thus far, whether the car was parked, or just stopped momentarily and caught by predatory ticketing.  It is not accepted that the location included prominent signs giving ‘adequate notice’ of the onerous parking charge. A compliant Notice to Keeper (‘NTK’) was not properly served in strict accordance with section 8 or 9 (as the case may be) of the POFA.

18.  The Claimant has spent almost 8 months harassing the Defendant with ever increasing and intimidating demands pursuing this baseless charge, sending debt collector letters and causing the Defendant and their family significant distress, despite having no basis to charge £100 and despite knowing that the parking tariff was fully paid, with evidence provided in the form of the original parking ticket for the time on site.

19.  The allegation appears to be based on images by the Claimant’s Automatic Number Plate Recognition (ANPR) camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper 'parking without a valid paid parking ticket’.

Laith25

20.  The Driver successfully made payment for a valid parking ticket by using an approved payment machine located on site at GS Car Park. This ticket was retained and provided as absolute, clear cut evidence at the time of appeal.
(a) Payment for parking was made via entering the correct vehicle registration number into the parking validation terminal within the GS Car Park site.
(b) The driver followed the instructions exactly as shown on the validation terminal.
(c) The validation terminal did not indicate any failure to input the vehicle registration correctly and responded as if the vehicle registration had been accepted. As such the driver believed the necessary process had been carried out successfully to obtain parking for the duration of the stay.

21.  It is the Claimant’s own failure caused by their validation terminal that has given rise to a 'PCN' being not properly issued from the outset.

22.  Consumer Protection from Unfair Trading Regulations (CPUTR) and British Parking Association (BPA) Code of Practice (CoP) – Breach

22.1. The Defendant, through research, has discovered that if a complaint had been made at the time of receipt of the parking charge notice (PCN), then the businesses on site (including One Parking Solution Ltd) had the authority to cancel the charge.

22.2. The Defendant avers that no signs and no paperwork from the Claimant gave any hint to the registered keeper, that the onsite businesses could easily cancel a charge. By withholding the route of cancellation/ complaint from a consumer the Claimant is 'misleading omissions' of material facts. These breaches of the CPUTRs 2008 have caused the unfair PCN, prevented its cancellation before proceeding started and this conduct by the Claimant has severely disadvantaged the Defendant.

22.3. The Defendant, through research, has discovered that the Claimant is a member of the British Parking Association (BPA) Approved Operator Scheme (AOS) and is in breach of its own Trade Body’s 2020 Code of Practice (CoP) that protects drivers in ‘keying error’ cases.

22.4 The Claimant knew in the pre-action phase in 2019, that this change to the CoP was coming, and the CoP now says that AOS members are expected to offer to recover a modest charge of no more than £20 for a 14-day period from when the keying error was identified before reverting to the charge amount at the point of appeal, but this was never offered. If a keying error did occur in this instance, then the Claimant is in breach of the BPA 2020 CoP.

23. Data Protection concerns
23.1. The registered keeper or driver had no idea about the ANPR surveillance and received no letters after the initial 'PCN', only a vague document which gave no indication as to what the alleged breach was. No photographic evidence of the terms supposedly on the car park signage has ever been supplied, not even in the postal PCN.

23.2. The Claimant is put to strict proof of any breach and of their decision-making in processing of the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £182 instead of seeking to recover a modest charge, if it is their case that this sum went unpaid.

23.3. Under the General Data Protection Regulation (GDPR), the Claimant is also put to strict proof regarding the reason for such excessive and intrusive data collection via ANPR surveillance cameras at a car park where there would likely be no vehicles unconnected to patrons, no trespass nor 'unauthorised' parking events.

23.4. It is one thing to install PDT machines, but quite another to run a hidden ANPR camera data stream alongside the PDT data stream, and then use one against the other, against the rights and interests of unsuspecting but circumspect visitors to GS Car Park, who get caught out by this trap.

23.5. Collecting vehicle registration data in order to inflate the 'parking charge' to £182 and write (weeks later) to registered keepers, whether they were driving or not, is excessive, untimely and intrusive to registered keeper data subjects.

24. Denial of contract and denial of any breach, or liability

24.1. Due to the sparseness of the Particulars of Claim (POC) 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 registered keeper, or the driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

24.2. According to the POC the Claimants ANPR system captured a vehicle entering and leaving the site without a valid paid parking ticket, however, vehicle registration was correctly entered into their parking validation terminal so any perceived breach is denied.

25.    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 Schedule 2 of the CRA. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was entered into with the Claimant, whether express, implied, or by conduct.

26.   The Beavis case is fully distinguished and a more relevant list of 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 and (ii) Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2, both leading examples of the ‘red hand’ rule - i.e. that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(iii) 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''.

27.    Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or the necessary landowner authorisation to issue PCNs under these circumstances and to pursue keepers by means of civil litigation. 

It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, other terms (or instructions to cancel charges due to a surge of complaints) and there is no evidence that the freeholder authorises this particular Claimant (Companies House lists their company number as 05992210).  Any purported landowner 'contract' which fails to properly identify the two contracting parties and/or which is in any way redacted (including the signatories, which in some parking claims have been revealed not to be that of the landowner) should be disregarded, along with any undated and/or unsubstantiated records, documents, boundary maps or aerial views, or photos which are capable of manipulation.

28.   For any or all of the reasons stated above, the Court is invited to dismiss this claim.

29.    In the matter of costs.  If the claim is not struck out, the Defendant seeks

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

(b) the Court to reserve, assess and award the Defendant’s Summary Costs Assessment, to be filed and served at Witness Statement stage in anticipation of a typical late Notice of Discontinuance (‘NoD’) from this Claimant.

30.   At NoD stage, or at a hearing if the case proceeds that far, the Court will be taken to facts to support a finding of wholly unreasonable conduct by this Claimant.  Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that LiP costs are not necessarily capped at £19 ph.  The Defendant will ask for a fairly assessed rate for the hours spent on this case, referencing Spencer & anor v Paul Jones Financial Services Ltd.

31.   In summary, the Claimant's Particulars disclose no legal basis for the sum claimed. This Claimant knew, or should have known, that an exaggerated ‘parking charge’ claim where the alleged ‘debt’ exceeds the £100 ATA CoP ceiling is disallowed under the CPRs, the Beavis case, the POFA and the CRA,  The Judge in the instant case is taken to the Appendices, demonstrating that several court areas continue to summarily strike out private parking cases that include an extravagant and unlawful costs sum.

Statement of Truth

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

1505grandad

As per instructions re new defence:-

DO NOT ADD THE COURT CLAIM AND LEGAL FEES TO THAT SUM - THE OBJECTION IS TO THE 'ADMIN/CONTRACTUAL COSTS' ONLY.

Are you sure that you have quoted only the above?:-

"2.       In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £257. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case." 

What is this:-

"4.       18 of the list of terms that are likely to be unfair."

Unfortunately that has thrown out the expected para numbers with the template. Can you amend and make sure that all your paras are the same and numbered as in the template  - otherwise makes it even more difficult to critique.

Coupon-mad

This is why I put stuff like this in capitals...how does it get missed?

DO NOT ADD THE COURT CLAIM AND LEGAL FEES TO THAT SUM - THE OBJECTION IS TO THE 'ADMIN/CONTRACTUAL COSTS' ONLY.

 However, this Claimant is claiming a global sum of £257.

No they aren't...as the template explains, the objection is ONLY to the £60 added.

Le_Kirk

and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Appendix

In your paragraph 6, the forum software has changed your (Appendix into a smiley; you have to type (Appendix B ) with the space.

Laith25

Thank you guys for the feedback... I have amended..

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the driver of the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ to the Claimant.

2.      In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £60. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case. 

3.      The global sum claimed is unconscionable and it was not shown in large lettering on any consumer signs, and it is averred that the charge offends against Schedule 2 of the Consumer Rights Act 2015 (‘the CRA’), where s71(2) creates a duty on the Court to consider the fairness of a consumer contract.  The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair.

4.      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 costs. The sum exceeds the maximum amount which can be recovered from a registered keeper, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’).  It is worth noting that in the Beavis case where the driver was known, the Supreme Court considered and referred more than once to the POFA.

5.      Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas in England and Wales since 2019.  Recent examples are appended to this defence; a February 2020 Order from District Judge Fay Wright, sitting at Skipton County Court (Appendix A)  and a similar Order from Deputy District Judge Josephs, sitting at Warwick County Court (Appendix .

6.      Applications by AOS member parking firms to try to reach the usually low threshold to set aside multiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Honour Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barrister on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made. 

7.      The Judge found that the claims - both trying to claim £160, with some ten or more similar cases stayed - represented an abuse of process that ‘tainted’ each claim.  It was held to be not in the public interest for a court to let such claims proceed and merely disallow £60 in a case-by-case basis, thus restricting and reserving the proper application of the relevant consumer rights legislation only for those relatively few consumers who reach hearing stage.  That Judgment is appended (Appendix C).

8.      The CCBC and/or the allocated Court Judge is invited to read the Appendices at the earliest opportunity.  The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the parking charge are now easily identified to be unlawful. Such claims are against the public interest, requiring no further assessment, and listing such cases for trial should be avoided.  The Court is invited to exercise its case management powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

9.      Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a hastily-added clause 'allowing' added costs/damages.  The Defendant points out that the CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly invented by a member of the British Parking Association Board, Gary Osner, whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. Mr Osner 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.''  

10.  The two competing ‘race to the bottom’ ATAs have engineered a veil of legitimacy to protect this industry for too long.  They are not regulators 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 enactment of the Parking (Code of Practice) Act 2019.  Many courts have now recognised that a predatory parking firm Claimant using unfair and predatory business practices and inflating their claims with false ‘admin fees’, is not the ‘innocent party’ in a dispute.  In stark contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for:  ''good 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.''  

11.  In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice.  Further, the Particulars of Claim are embarrassing and incoherent, lacking specificity re the location of the event and status of the contracting parties and failing to detail any conduct or liability that could give rise to a cause of action.  There is insufficient detail to ascertain the nature, basis and facts of the case but the sum claimed includes unrecoverable costs/damages and is clearly an abuse of process.

12.  The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by ParkingEye, and the penalty rule applies to charges that are penal or unconscionable in their construction.  The Supreme Court held at [14] ‘‘where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty.’’  And at [99] ‘‘the penalty rule is plainly engaged.’’

13.  Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 parking charge which included all operational costs and was constructed in such a way and offered on such ‘brief and clear’ signs with terms set in the interests of the landowner, that they were able to overcome the real possibility of the charge being struck out as penal and unrecoverable.  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 set a high bar that other claims fail to reach.  Unusually for this industry, it is worth noting that ParkingEye do not add false ‘debt letter costs/damages’ to their parking charges and as a consequence, their own claims have escaped any reports of being summarily struck out.

14.   This Claimant has failed to plead their case, or to set out their terms or construct their contractual charges in the same way as in Beavis and the penalty rule remains firmly engaged.  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.  The intention cannot be to punish drivers nor to present a motorist with concealed pitfalls or traps, nor to claim an unconscionable total sum.

15.  Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

16.  The Defendant is the main driver of this vehicle. It is not established thus far, whether the car was parked, or just stopped momentarily and caught by predatory ticketing.  It is not accepted that the location included prominent signs giving ‘adequate notice’ of the onerous parking charge. A compliant Notice to Keeper (‘NTK’) was not properly served in strict accordance with section 8 or 9 (as the case may be) of the POFA.

17.  The Claimant has spent almost 8 months harassing the Defendant with ever increasing and intimidating demands pursuing this baseless charge, sending debt collector letters and causing the Defendant and their family significant distress, despite having no basis to charge £100 and despite knowing that the parking tariff was fully paid, with evidence provided in the form of the original parking ticket for the time on site.

18.  The allegation appears to be based on images by the Claimant’s Automatic Number Plate Recognition (ANPR) camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper 'parking without a valid paid parking ticket’.

19.  The Driver successfully made payment for a valid parking ticket by using an approved payment machine located on site at GS Car Park. This ticket was retained and provided as absolute, clear cut evidence at the time of appeal.
(a) Payment for parking was made via entering the correct vehicle registration number into the parking validation terminal within the GS Car Park site.
(b) The driver followed the instructions exactly as shown on the validation terminal.
(c) The validation terminal did not indicate any failure to input the vehicle registration correctly and responded as if the vehicle registration had been accepted. As such the driver believed the necessary process had been carried out successfully to obtain parking for the duration of the stay.

20.  It is the Claimant’s own failure caused by their validation terminal that has given rise to a 'PCN' being not properly issued from the outset.

21.  Consumer Protection from Unfair Trading Regulations (CPUTR) and British Parking Association (BPA) Code of Practice (CoP) – Breach

a) The Defendant, through research, has discovered that if a complaint had been made at the time of receipt of the parking charge notice (PCN), then the businesses on site (including One Parking Solution Ltd) had the authority to cancel the charge.

b) The Defendant avers that no signs and no paperwork from the Claimant gave any hint to the registered keeper, that the onsite businesses could easily cancel a charge. By withholding the route of cancellation/ complaint from a consumer the Claimant is 'misleading omissions' of material facts. These breaches of the CPUTRs 2008 have caused the unfair PCN, prevented its cancellation before proceeding started and this conduct by the Claimant has severely disadvantaged the Defendant.

c) The Defendant, through research, has discovered that the Claimant is a member of the British Parking Association (BPA) Approved Operator Scheme (AOS) and is in breach of its own Trade Body’s 2020 Code of Practice (CoP) that protects drivers in ‘keying error’ cases.

d) The Claimant knew in the pre-action phase in 2019, that this change to the CoP was coming, and the CoP now says that AOS members are expected to offer to recover a modest charge of no more than £20 for a 14-day period from when the keying error was identified before reverting to the charge amount at the point of appeal, but this was never offered. If a keying error did occur in this instance, then the Claimant is in breach of the BPA 2020 CoP.