Please help!Letter from Newlyn

nikkietoni

Will do just getting it ready thanks

nikkietoni

IN THE COUNTY COURT

1. The Defendant provides this defence following the set aside of an unexpected CCJ whereby the service of this claimant’s claim was defective. The Defendant feels ambushed and at an unfair disadvantage and after submitting this defence, the Defendant will await the Court’s further directions relating to exchange of witness statements and evidence before any final hearing is set. The Defendant asks the court to note her need for a face-to-face hearing later this year because she suffers from long term mental health issues including anxiety, and found the remote CCJ set aside application hearing extremely traumatic. The absence of visual cues was confusing and detrimental to the Defendant’s confidence, organisation and presentation of facts, due to being unable to rely upon a family member who will speak at the final hearing as the Defendant’s lay representative.

     1.1 The Defendant has been provided with sparse information about the reason for the parking charge but has gleaned from the Particulars supplied by the CCBC that the location is Eden Square, where cars routinely queue to enter and                          

           leave, and that the material date was December 2017. Like the claim form, no Notice to Keeper was served and the identity of the driver has never been provided. The Defendant denies that the driver of the vehicle entered into any

           agreement to pay a disproportionate sum to the Claimant, whose cause of action      seems to rely upon the extra minutes spent in traffic, entering, waiting for a space, and at the end, driving out in a queue to leave this extremely busy

           Site, just prior to Christmas. The Defendant has seen no evidence that the driver overstayed their time in a parking bay, what the ‘grace period’ was or whether the Claimant extended the time to accommodate the

Store’s busiest shopping times. It is regularly known at Christmas car parks in Urmston are free from 3pm.The PCN issued was 2pm.Also there is a chance to pay the extra hour to stay over the three hours and the others who drive my car are well aware of that and always purchase a ticket if over the time allowed. Can the Claimant prove that no ticket was purchased? Accordingly, it is denied that the claimant is entitled to relief in the sum claimed, or at all.

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 . £150. This figure is a penalty, far exceeding the £85 parking charge in the Parking Eye 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 Parking Eye, 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, Parking Eye 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 Parking Eye 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, in so far as the facts below are known.

16. After all these years from December 2017 it is not known who the driver was as so long ago and The Defendant is not and was not the main/only driver of this vehicle (three other family members had and have use of this vehicle) and I had no knowledge of any parking charge notice (‘PCN’) or letters as was only aware in February 2020. 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 non-compliant Notice to Keeper (‘NTK’) was not properly served in strict accordance with section 9 (2) f of the POFA 2012 and therefore the Registered Keeper cannot be held as liable as Any Notice to Keeper issued by the Claimant must comply with Schedule 4 of the Protection of Freedoms Act.

17. 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.

18. The Beavis case is fully distinguished anda 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''

19. 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 07748407) 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.          

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

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

• (a)The Claimant was apparently sending all parking charge notices and ccj claim forms etc. to an out-dated address instead of the Defendant’s known good address against advice from the DVLA and I would like the cost of the CCJ set aside costs of £215 to be refunded by the Claimant to the Defendant

as reimbursement for all thee stress served on the Defendant.

           (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.

22. 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.

23. In summary, it is denied the driver of the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ to the Claimant. 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.

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: …………………………….…………………………….               

Defendant’s name:      ……………………………………….…………………………….

Appendix A attached: Order to strike out a similar claim; abuse of process (Skipton)

Appendix B attached: Order to strike out a similar claim; abuse of process (Warwick)

Le_Kirk

nikkietoni said:

IN THE COUNTY COURT

1. The Defendant provides this defence following the set aside of an unexpected CCJ whereby the service of this claimant’s claim was defective. The Defendant feels ambushed and at an unfair disadvantage and after submitting this defence, the Defendant will await the Court’s further directions relating to exchange of witness statements and evidence before any final hearing is set. The Defendant asks the court to note her need for a face-to-face hearing later this year because she suffers from long term mental health issues including anxiety, and found the remote CCJ set aside application hearing extremely traumatic. The absence of visual cues was confusing and detrimental to the Defendant’s confidence, organisation and presentation of facts, due to being unable to rely upon a family member who will speak at the final hearing as the Defendant’s lay representative.

     1.1 The Defendant has been provided with sparse information about the reason for the parking charge but has gleaned from the Particulars supplied by the CCBC that the location is Eden Square, where cars routinely queue to enter and eave, and that the material date was December 2017. Like the claim form, no Notice to Keeper was served and the identity of the driver has never been provided. The Defendant denies that the driver of the vehicle entered into any agreement to pay a disproportionate sum to the Claimant, whose cause of action seems to rely upon the extra minutes spent in traffic, entering, waiting for a space, and at the end, driving out in a queue to leave this extremely busy site, just prior to Christmas. The Defendant has seen no evidence that the driver overstayed their time in a parking bay, what the ‘grace period’ was or whether the Claimant extended the time to accommodate the Store’s busiest shopping times. It is regularly known at Christmas that car parks in Urmston are free from 3 pm.  The PCN issued was 2 pm.  Also there is a chance to pay the extra hour to stay over the three hours and the others who drive my the defendant's car are well aware of that and always purchase a ticket if over the time allowed. Can the Claimant prove The Claimant is put to strict proof that no ticket was purchased.  Accordingly, it is denied that the claimant is entitled to relief in the sum claimed, or at all.

1. 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 £150. This figure is a penalty, far exceeding the £85 parking charge in the Parking Eye Ltd v Beavis
2. 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.
3. 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.
4. 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 B )
5. 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.
6. 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)
7. 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.
8. 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.''  
9. 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.''  
10. 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.
11. The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by Parking Eye, 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.’’
12. Unlike in this case, Parking Eye 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 Parking Eye 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.
13. 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.
14. 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, in so far as the facts below are known.
15. After all these years from December 2017 it is not known who the driver was as so long ago and The Defendant is not and was not the main/only driver of this vehicle (three other family members had and have use of this vehicle) and I the defendant had no knowledge of any parking charge notice (‘PCN’) or letters as was only aware in February 2020. 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 non-compliant Notice to Keeper (‘NTK’) was not properly served in strict accordance with section 9 (2) f of the POFA 2012 and therefore the Registered Keeper cannot be held as liable as Any Notice to Keeper issued by the Claimant must comply with Schedule 4 of the Protection of Freedoms Act.
16. 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.
17. 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''.

1. 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. 

       2. 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 07748407).  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.          

1. For any or all of the reasons stated above, the Court is invited to dismiss this claim.
2. In the matter of costs. If the claim is not struck out, the Defendant seeks:

     (a) The Claimant was apparently sending all parking charge notices and CCJ claim forms etc. to an out-dated address instead of the Defendant’s known good address against advice from the DVLA and I the defendant would like the cost of the CCJ set-aside costs of £215 to be refunded by the Claimant to the Defendant as reimbursement for all the stress served on the Defendant.

           (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.

1. 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.
2. In summary, it is denied the driver of the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ to the Claimant. 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.

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: …………………………….…………………………….               

Defendant’s name:      ……………………………………….…………………………….

Appendix A attached: Order to strike out a similar claim; abuse of process (Skipton)

Appendix B attached: Order to strike out a similar claim; abuse of process (Warwick)

Just tidied that up a bit for you.  You will need to look at the letters/words that I have struck out and remove the bold back to normal text.

Coupon-mad

I've removed the things you added about car parks being free in Urmston, as that's totally irrelevent for private land car parks (retail parks).  I've changed the numbering and used Le_Kirk's version.  Don't forget to separately attach appendix C as well (from the template defence thread).  

I've split this into two as I can't fit  this in now, due to adding a bit:

IN THE COUNTY COURT AT XXXXXXXXX

CLAIM NUMBER XXXXXXXX

Between:  

HORIZON PARKING LIMITED

and

xxxxxxxxx xxxxxxxxx

DEFENCE

1. The Defendant provides this defence following the set aside of an unexpected CCJ whereby the service of this claimant’s claim was defective. The Defendant feels ambushed and at an unfair disadvantage and after submitting this defence, the Defendant will await the Court’s further directions relating to exchange of witness statements and evidence before any final hearing is set.
2. The Defendant asks the court to note her need for a face-to-face hearing later this year because she suffers from long term mental health issues including anxiety, and found the remote CCJ set aside application hearing extremely traumatic. The absence of visual cues was confusing and detrimental to the Defendant’s confidence, organisation and presentation of facts, due to being unable to rely upon a family member who will speak at the final hearing as the Defendant’s lay representative.
   
3. The Defendant has been provided with sparse information about the reason for the parking charge but has gleaned from the Particulars supplied by the CCBC that the location is Eden Square, where cars routinely queue to enter and leave, and that the material date was December 2017. Like the claim form, no Notice to Keeper was served and the identity of the driver has never been provided. The Defendant denies that the driver of the vehicle entered into any agreement to pay a disproportionate sum to the Claimant, whose cause of action seems to rely upon the extra minutes spent in traffic, entering, waiting for a space, and at the end, driving out in a queue to leave this extremely busy site, just prior to Christmas. 
4. The Defendant has seen no evidence that the driver overstayed their time in a parking bay, what the ‘grace period’ was or whether the Claimant extended the time to accommodate the Store’s busiest shopping times.  Accordingly, it is denied that the claimant is entitled to relief in the sum claimed, or at all.
5. 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 £150 (£80 plus £70 'contractual costs').   This figure is a penalty, far exceeding the £85 parking charge in the Parking Eye Ltd v Beavis
6. 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.
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 costs. The sum exceeds the maximum amount (£80 - the 'parking charge') which could potentially be recovered from a registered keeper, as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’), had the Claimant complied with that law, which it did not. 
8.  In the pre-Beavis case in ParkingEye v Somerfield at [419], the High Court held: ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''  (ref  https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html#para419)
9. 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 B )
10. 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.
11. 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).
12. On 27th February 2020, DJ Wright at Skipton followed suit, refusing to set aside the Court's multiple summary strike-out orders at an application hearing by Excel Parking Services Ltd, whose barrister failed in his arguments, just as the barrister for BW Legal did at Southampton three months earlier.  The learned Judge's reasoning was the same (as can be seen by Appendix A which shows an example of her concisely but clearly worded continuing Orders affecting all parking firms who attempt to abuse the court process in this way).  DJ Wright had sight of the Southampton transcript and dismissed Excel's witness statement as entirely without merit, although she stopped short of allowing the Defendants (six, of whom two appeared in person for this application hearing) to describe the conduct as fraudulent.  
13. The Court 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.
14. 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.''  
15. 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.''  
16. The court is invited to note that the Beavis case would not have passed had it been pleaded in damages by Parking Eye, 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.’’
    
17. Unlike in this case, Parking Eye 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 Parking Eye 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.
18. 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.
19. Should this poorly pleaded claim (which appears to be a dead claim, since it was found by the court not to have been properly served within four months of it being filed) 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, in so far as the facts below are known.
20. After all these years from December 2017 it is not known who the driver was as so long ago and The Defendant is not and was not the main/only driver of this vehicle (three other family members had and have use of this vehicle).  The Defendant had no knowledge of any parking charge notice (‘PCN’) or letters and only learned of it in February 2020.  It is not accepted that the location included prominent signs giving ‘adequate notice’ of the onerous parking charge. 
21. A Notice to Keeper (‘NTK’) was not properly served in strict accordance with section 9 (2) f of the POFA and therefore the Registered Keeper cannot be held as liable as any Notice to Keeper issued by the Claimant must comply with Schedule 4.  This PCN failed to include the prescribed liability warning wording set out in 9(2)f and other sections of paragraph 9.  Even if it had been received, the NTK in ths case was incapable of invoking 'keeper liability' and there can be no presumption that a registered keeper was the driver of a car in 2017, absent any evidence.
22. 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.
23. 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''.
24. 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. 
25. It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, other terms (or instructions at Christmas regarding any relaxation of a grace period to account for queues) and there is no evidence that the freeholder authorises this particular Claimant (Companies House lists their company number as 07748407).  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 records, documents, boundary maps, aerial views, or photos that are undated, old or unsubstantiated.      
26. For any or all of the reasons stated above, the Court is invited to dismiss this claim.
27. In the matter of costs: If the claim is not struck out, the Defendant invites the Court to consider an award of 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.  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 seeks LiP costs and the cost of the CCJ set-aside costs of £215 to be refunded by the Claimant to the Defendant (even if they issue a NoD).

Coupon-mad

1. In summary, it is denied the driver of the vehicle entered into any contractual agreement, whether express, implied, or by conduct, to pay a ‘parking charge’ to the Claimant. 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. 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: …………………………….…………………………….               

Defendant’s name:      ……………………………………….…………………………….

Appendix A attached: Order to strike out a similar claim; abuse of process (Skipton)

Appendix B attached: Order to strike out a similar claim; abuse of process (Warwick)

Appendix C attached:  Judgment from DJ Grand at Southampton Court (11.11.19) - abuse of process.

Number 1 above is obviously 28 !

nikkietoni

Wow...thanks so much . I will get this sent asap and keep you posted

Coupon-mad

Email a copy to the Claimants as well, as per the Order (either the solicitor or the C, whoever is involved).  Make sure the claim number is added correctly at the top and her name as the Defendant of course, and she needs to sign & date it first.

nikkietoni

Well it has gone now to claimants and court. Had a couple of problems bouncing back from claimants! 

But sent it back to other emails I found!
i don’t know how we would have done it without help from you guys... you are the best! Selflessly helping to right wrongs. .  Superstars indeed. Very grateful x will keep you posted 

nikkietoni

Bit confused now ..
received this morning along with a completed questionnaire from someone acting from the claimant...looks like gladstones?

“ We act for the Claimant and have notified the Court of the Claimant’s intention to proceed with the Claim. 

Please find enclosed a copy of the Claimant’s completed Directions Questionnaire, which has also been filed with the Court.  

You will note the Claimant has elected to mediate in an attempt to settle this matter amicably, without the need for further Court intervention. Should you agree to mediation, please inform the Court who will contact both parties to arrange a mediation appointment.”

 She needs her £215 back and cannot really afford to pay anymore as works in the beauty industry and furloughed so only getting 80% and single parent etc . Just need this to go away...what would happen at mediation?

Le_Kirk

Mediation: -
Mediator to Defendant (You)  "Do you agree to pay £FULL?"
Defendant (You) "No"
Mediator "How much will you pay?"
You "£ZERO"
Mediator to claimant "Are you prepared to accept £ZERO?"
Claimant "No"
End of mediation
If you refer to NEWBIE sticky and/or a post from KeithP it/he tells you to expect a DQ from the claimant and what to do about it and what to do about mediation. Never accept mediation.  Download your own DQ, complete it and submit to CCBC/court.