NEED HELP!! COURT ORDER

Macky_1014

Redx said:

let me put this to you in a different manner

a Judge in court is going to take a dim view of a driver that parks a vehicle in a disabled bay that is reserved for somebody who qualifies under a law , namely the Equality Act 2010 , because that qualification is what gets them the DMU permit, on production of their Blue Badge at reception or wherever it is issued from

for the purposes of this reply , I assume you do not qualify under the EA2010, or the driver doesnt , so no permit was obtained and issued , meaning the vehicle should not have been there and the driver should not have parked there at all , due to no blue badge , no DMU permit and no landowner permission

now to your question

What is my defence due to the fact that my vehicle was in a disabled bay without a blue badge but more importantly, without a DMU permit

my answer

there is no defence to that scenario, it cannot and does not exist

so any "defence" needs to try and get "off" on a technicality, some other legal argument that is allowed by the judge, that has nothing to do with where the vehicle was or who was driving it or this permit system

this could be

NO LANDOWNER AUTHORITY

a POFA failure

a BPA CoP failure

a SIGNAGE issue where signs were faded , unclear , missing etc

or anything else that allows you to wriggle out of it (a technicality)

able bodied people who park in disabled bays without permission deprive people like me of that parking space , so do not expect me to help you win this case, other than to point out what I have already typed. (whereas if you had a blue badge and were disabled I would help as much as possible)

I hope that explains MY position on this topic

as for this whole saga , First Parking must have posted an NTK in the past about this incident to you , with a pcn charge of say £100 with an early bird discount, you chose not to pay that charge , so you must have had a valid reason for non payment, so what is that reason ? because that reason is why you are defending this in court

AOS has been submitted and currently writing my defenCe. i lived in america for a while so got used to writing defence with a S.
anyhow, the same way i should not have parked in a disabled spot and deprived the less able drivers to park in that spot. why would they not offer us students parking spots where we had to pay?? i know you cannot do anything about it, but it's what lead me to this point. no car park for students....other parking spots on the road=full.....no space to park and i got an exam in 5 mins?? of course am going to park in an empty disabled parking spot knowing the consequences. 

back to the topic, i am currently making a defence, and ive realized they don't have enough signs near the parking spots, there's about 5 parking spaces, and there's only a sign on the far right spot, as i parked on the far left spot, i could'nt even see the sign.
i will write my defenCe up and post it here.  

Coupon-mad

back to the topic, i am currently making a defence, and ive realized they don't have enough signs near the parking spots, there's about 5 parking spaces, and there's only a sign on the far right spot, as i parked on the far left spot, i couldn't even see the sign.

Now you are talking, especially if the lines around the disabled bay were faded, so it looked like a parking bay?

Macky_1014

Coupon-mad said:

back to the topic, i am currently making a defence, and ive realized they don't have enough signs near the parking spots, there's about 5 parking spaces, and there's only a sign on the far right spot, as i parked on the far left spot, i couldn't even see the sign.

Now you are talking, especially if the lines around the disabled bay were faded, so it looked like a parking bay?

well, tomorrow is the deadline date for filing my defence, i know it's very inconsiderate of me to leave it till last min, but as am a last year uni student, the workload at the moment is at its peekestttttt. anyways i have drafted up a defence, i know some of the stuff might be repetitive so if anyone could please take a look at it and edit for me. it would much much appreciated.
thank you very much for everyone who helped me untill this point. 

IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN
F1rst parking LTD (Claimant)
-and-
xxxxxxxxxxxx (Defendant)

THE CLAIMANT CLAIMS
£480 for Parking Charges / Damages and
indemnity costs if applicable, together with
interest of 8% per annum pursuant to s69 of the
County Courts Act 1984 from the date hereof at a daily rate of £0.11 untill judgment or sooner payment plus 70% for legal representative costs, and £60 of court fee.
________________________________________
DEFENCE
________________________________________
1.It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on Deacon street OUTSIDE the main car park not in it.

3. The Particulars of Claim state that the Defendant “was the registered keeper and/or the driver of the vehicle(s)”. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16, 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, 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, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

5. The Claimant is put to strict proof that the vehicle did not have a valid permit to be parked in that bay.

6. 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.

7. The Protection of Freedoms Act 2012, 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, in this case £80. The claim includes an additional £80 for each charge, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. And an extra of £40.43 and labelled as “damages” which is not specified for what exactly?

9. attachment below shows an image of the sign. It is clearly obvious that if a person parked on the far left, they would be unable to see the “parking charge” sign.

10. the contract admits that the incident occurred in the main De Monfort university car park which is I can 100% disagree with, because students are not able to enter the main car park due to a barrier that can only be opened by a security officer before 6pm and the incidents listed have all occurred before 6pm.

11. The Particulars of Claim fail to fulfil CPR Part 16.4 because it includes a statement of the facts that is not 100% correct on which the claimant relies, referring to a Parking Charge Notice that apparently occurred in the main de Monfort university car park ; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:

12. It is denied that:

a. There was any agreement to pay a parking charge.

b. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.

c. That in addition to the parking charge there was any agreement to pay additional and unspecified additional sums, which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.

d. The claimant company fully complied with their obligations within the International Parking Community Code of Practice of which they were member at the time.

5. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

6. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

a. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.

13. The signage on this site was inadequate to form a contract with the motorist.
a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice or the International Parking Community (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.

b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.

c. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

13. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.

14. The Claimant and DCB LEGAL LTD has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £240 for all “fines” to £520.43 This appears to be an added cost with no apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows, and these figures are plucked out of thin air.

Non-disclosure of reasonable grounds or particulars for bringing a claim:
15. F1rst parking LTD are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in
their own name and that they have no rights to bring action regarding this claim.

a. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.

b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question

c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party
agent, the Claimant may not pursue any charge

d. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

16. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. Her Majesty's Courts and Tribunals Service have identified over one thousand similar poorly produced claims and the solicitors conduct in many of these cases is believed to be currently the subject of an active investigation by the Solicitors Regulation Authority.

17. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.

18. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.

19. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.

20. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

I believe the facts stated in this Defence Statement are true

nosferatu1001

With 56 minutes to go before you had to file it, and now with 50 minutes to go, theres no point trying to review this. Youre stuck with it now.
The answer to your quesiton above was - turn up earlier so you get a space. Make other arrangements to be there. A car is still a luxury for students in the UK, and unis dont have to indulge that. In short, tough. 
Once you file this - via email as a PDF attachment - get on with reading the newbies thread for the INEVITABLE next stages, DQ plus writing your witness statement

Coupon-mad

You seem to have missed the template defence thread I posted 2 weeks ago, for you to download and edit a defence in about half an hour flat!  Please use the NEW ONE - search the forum for template defence and get on it!

KeithP

As I wrote earlier...

...you have until 4pm on Tuesday 10th March 2020 to file your Defence.

You still have twenty-four hours to hone your Defence to perfection.

Macky_1014

Coupon-mad said:

You seem to have missed the template defence thread I posted 2 weeks ago, for you to download and edit a defence in about half an hour flat!  Please use the NEW ONE - search the forum for template defence and get on it!

i have used your template but was unsure of what to and not to include, from my understanding, there isnt much i can add right? but here is what edited it to: 

IN THE COUNTY COURT

Claim No.: xxxxxxxx

Between

(full name of parking firm, not the solicitor!) LIMITED

(Claimant)

-and-  

Defendant’s name  (you cannot change this to someone else now)                      (Defendant)

________

DEFENCE

________

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 £XXXX. 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 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.   11. The Particulars of Claim fail to fulfil CPR Part 16.4 because it includes a statement of the facts that is not 100% correct on which the claimant relies, referring to a Parking Charge Notice that apparently occurred in the main de Monfort university car park ; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence.

18.   b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.

19.   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''.

20.    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 xxxxxxxx).  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.

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

22.    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.

23.   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.

24.   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. 

Macky_1014

KeithP said:

As I wrote earlier...

...you have until 4pm on Tuesday 10th March 2020 to file your Defence.

You still have twenty-four hours to hone your Defence to perfection.

i used coupon template for this defence, what do you think about this? 

IN THE COUNTY COURT

Claim No.: xxxxxxxx

Between

(full name of parking firm, not the solicitor!) LIMITED

(Claimant)

-and-  

Defendant’s name  (you cannot change this to someone else now)                      (Defendant)

________

DEFENCE

________

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 £XXXX. 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 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.   11. The Particulars of Claim fail to fulfil CPR Part 16.4 because it includes a statement of the facts that is not 100% correct on which the claimant relies, referring to a Parking Charge Notice that apparently occurred in the main de Monfort university car park ; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence.

18.   b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.

19.   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''.

20.    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 xxxxxxxx).  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.

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

22.    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.

23.   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.

24.   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. 

nosferatu1001

You say you edited it -= did you only change the bits instructed, plus added in some detail in 16/17 on the actual background to this as instructed?
If you did more edits, WHERE did you do them? Noones going to sit and compare two documetns to see where youve made changes....

Coupon-mad

You have a random '11' after #17 and a ''b'' after #18, and we assume you changed all the red bits to match your own case/claim number, claimant & defendant's name, and the company number near the end (and changed from red to black, as you edited your details in, of course)?  And you attached Appendix C, the 6 page judgment, too?

If so then it was good to go, and we hope you did that email.