Claim Form 04.14 Issued over PCN, only 14 days to respond. My Defence

User_181022

Denial of contract and denial of any breach, or liability

 

8. Due to the sparseness of the 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 Defendant, or any driver of the vehicle breached any contractual agreement with the Claimant, whether express, implied, or by conduct.

 

9. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

 

9.1. The Defendant avers that the signs within the parking area are confusing and therefore misleading. There was no indication of a ‘grace period’ that the Defendant would have to leave before any charges would be issued to them. This is important as reasonable time needs to be allowed for parking and payment to be made. Due to the failure of the Claimant to provide a payment machine that accepted their method of payment, no contract was ever entered into and the an unfair amount of time was given to realise this and leave.

 

No standing or authority to form contracts and/or litigate

 

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation against patrons of Gloucester Blackfriars.

 

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

 

11. 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. 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. The driver has not been identified, the PDT machines and signs/terms are not prominent, the VRN data is harvested excessively by two automated but conflicting data systems and the PCN was sent very late with a 'parking charge' that bears no resemblance to the £4 'parking charge' tariff, and as such, this case is fully distinguished in all respects, from ParkingEye Ltd v Beavis [2015] UKSC 67, where the decision turned on a legitimate interest and clear notices.

 

11.1. The Defendant avers that the factually-different Beavis decision confirms the assertion that this charge is unconscionable, given the signage omission at the time and the other facts of this case. To quote from the Supreme Court:

 

11.2. Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

 

11.3. 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.''

 

11.4. 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.''

 

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

 

12. If the 'parking charge' (the first interpretation meaning the car park tariff) was unpaid, then the sum 'owed' is a quantifiable figure. The sum 'owed' was a small tariff of some £4 according to the recent, frankly awful, Gloucester Black Friars NPC carpark reviews from people who have also been caught here. Had the Defendant been clearly alerted to the sum on the day - or even simpler, if they could have had the certainty of paying it upon entry with a functional machine - there would be no unfair penalty, and the local business of Gloucester Blackfriars (or landowner) would gain in income and avoid any parking issues at all, including all the complaints mounting up online about National Car Parks at the otherwise beautiful area.

 

12.1. Instead, this Claimant is operating a punitive unjustified and excessively data-intrusive ANPR system to their own ends, which is not transparent to consumers. A hidden 'parking charge' of £4 unexpectedly becomes an extortionate £170 bill several weeks later (described also as the 'parking charge') and yet this is not the sort of 'complex' issue with a 'compelling' commercial justification that saved the charge in Beavis from the penalty rule.

 

12.2. 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 £4 and there was ample opportunity to fairly collect and transparently advertise that sum on site, on the material day.

 

12.3. This regime in a car park that was always free until 2017 is not commercially justified, is damaging the reputation of Gloucester Blackfriars and driving away visitors in future, and is surely the epitome of unfairness and unconscionableness. Thus it cannot be excused from the penalty rule by any 'legitimate interest', both taking into account the GDPR data principles meaning and under the Beavis case definition. In addition to the Google Reviews feedback, newspaper articles show that the site appears to suffer from exactly the sort of concealed 'pitfalls or traps' that the Beavis case Judges warned against:

 

link-chepstowbeacon.co.uk/article.cfm?id=107788&searchyear=2017

 

12.4. 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.''

 

12.4.1. 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.''

 

12.5. 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''.

 

13. Even if the court is minded to accept that the terms were clear and prominent, the 'parking charge' tariff was indisputably a 'standard contract', which would be subject to a simple damages clause to enable recovery of the sum that 'ought to have been paid' which was believed to be £4 and no more.

 

13.1. 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.

 

13.2. 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 just £4 and the Claimant is trying to claim damages of £170, no doubt hoping for a Judge who cannot properly interpret the intricacies of the Beavis case.

 

14. Further, and in support of the view of the unconscionableness of this charge, given this set of facts, the Defendant avers that a breach of the data principles and failure to comply with ICO rules regarding data captured by ANPR, when added to the lack of clear signage, lack of Letter before Claim and sparse POC, transgresses the tests of fairness and transparency of consumer contracts, as set out in the Consumer Rights Act 2015.

 

15. In addition to the original parking charge, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported Solicitor's Costs of £50, which I submit have not actually been incurred by the Claimant.

 

 

16. The Protection of Freedoms Act 2012 (the POFA) Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (NTK). In the Beavis case, ParkingEye were only able to seek the only stated 'parking charge' sum on their NTK, since there was no quantifiable tariff.

 

16.1. It is not accepted that the Claimant has fully complied with the strict requirements of the POFA to hold the Defendant liable as registered keeper (and for this they are put to strict proof) and nor is it accepted that £60 can be claimed instead of £4 in this case, but either way, the additional sum on top of that amounting to £110.76, appears to be a disingenuous attempt at double recovery.

 

17. 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.

 

MYNAME

MICROSOFT SIGNATURE LINE

05/03/2020

Coupon-mad

DEFENCE RESPONSE TO CLAIMANT NATIONAL CAR PARKS LIMITED FOR SUM OF PARKING CHARGE NOTICE (PCN)

This is not the heading you see above our example defences in the NEWBIES thread.  Don't guess about the headings, just copy, that's why we have a template defence.  Maybe you will be more comfortable downloading that (it;s new and not even in the NEWBIES thread yet)? 

Search the forum for template defence and you WILL find the thread telling you about it and providing the downloadable version.  See if that's easier, as it only needs populating with your claim number and details and a couple of paragraphs of facts in the red section in the middle.  The rest of the arguments and HMRC v NCP could be picked up by you later, at WS and evidence stage.