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Template defence to adapt for all parking cases with added 'admin/DRA' costs - edited in 2024
YOUR FINAL DEFENCE THAT YOU DECIDE TO DRAFT IS YOUR OWN. NOTHING ON THIS BOARD IS LEGAL ADVICE, JUST OPINIONS FROM THOSE OF US THAT HELP VICTIMS OF HUNDREDS OF PARKING CLAIMS EVERY YEAR.
THE MAIN GENERAL HELP THREAD ABOUT THE SMALL CLAIMS DEFENCE PROCESS AND WHAT HAPPENS WHEN, IS HERE IN THE NEWBIES FAQS (2nd post):
https://forums.moneysavingexpert.com/discussion/comment/64350585/#Comment_64350585
Below in the 2nd post of THIS thread, is some wording to use as your base.
The facts of your case should be added as #2 and #3 - add more paragraphs if you need more, and adjust the numbers below it.
This is not the place to ask about ParkingEye defences, and the NEWBIES thread will continue to show an example of those.
No posting your drafts on this thread please.
By all means start a new discussion about your own case if you haven't already got a thread about that PCN, and show us your draft defence wording (your added paragraphs only, please) on your own thread.
On your thread, please don't put up paragraphs 4 to the end for critique if you have chosen to use all of the template example here. We don't need to see that, only the parts where you have made the defence your own, as you must, because it is your document to draft.
The steps after doing the AOS (the only thing you must do on MCOL) involve email.
FIRST THING TO DO - BUT NOT SOONER THAN DAY FIVE FROM THE 'ISSUE DATE':
Acknowledging service of a claim:
YOU WILL NOT GET A RESPONSE.
YOU MUST THEN DRAFT YOUR DEFENCE IN TIME.
Use the Template Defence shown in the post below...
...unless you have a CEL (in-house only), Elms Legal, Gladstones or Moorside Legal claim (and also specifically for DCB Legal claims for ParkingEye or Group Nexus / CP Plus) in which case the start should include the extra wording and link to CEL v Chan and CPMS v Akande, here:
Submitting your defence:
Thanks to KeithP for the following summary of how to submit a defence by email to the ClaimResponses email address shown here:
When you are happy with what you've drafted, your defence is to be filed by you via email as suggested here:
THE FIRST 12 STEPS:
- Print your Defence if you are physically signing it.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf, OR if you have no access to a scanner/printer then put an electronic signature in.
- Send your signed & dated pdf as an email attachment to ClaimResponses.CNBC@justice.gov.uk (the second one in the image above) but you MUST get an acknowledgement straight back or it is NOT submitted.
- Just put the claim number (check it very carefully) and the word Defence in the email title, and in the body of the email something like 'URGENT - CLAIM XXXXXXXX - Defence attached.
- IMPORTANT - MAKE SURE YOU GET AN EMAIL ACKNOWLEDGEMENT BACK FROM THE CNBC! After filing your Defence, there is more to do.
- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire or the usual template letter saying they 'intend to proceed' and/or want you to 'settle'. Ignore that!
- Wait for your own Directions Questionnaire from the CNBC and then complete & email it to the CNBC (see box above for the DQ email) and cc in the info@ address for the legals acting for the Claimant. It's a simple form but all the DQ answers are here: https://forums.moneysavingexpert.com/discussion/comment/81302208/#Comment_81302208
- YOU MUST GIVE THE MEDIATOR 5 MINUTES OF YOUR TIME TO AVOID ADVERSE COSTS RISK - Offer zero or a tenner, if you technically owe a parking tariff or just fancy some fun) see here: https://forums.moneysavingexpert.com/discussion/comment/80935749/#Comment_80935749 Another example:
https://forums.moneysavingexpert.com/discussion/comment/81148195/#Comment_81148195 - Except in cases where you have filed a counterclaim (which are allocated to your local court quicker and the CNBC is no longer involved) the completed DQ should be returned by email to the CCBC to this address: DQ.CNBC@justice.gov.uk. Cc a copy of your completed DQ to the Claimant (or their solicitor if they are using one). Their postal address is on your Claim Form but you can find an email for them by searching this forum.
- DO NOT USE RECORDED (OR SPECIAL) DELIVERY FOR ANYTHING TO A PARKING FIRM OR THEIR SOLICITOR. DO NOT EXPECT ROGUE FIRMS TO SIGN FOR YOUR LETTERS. IF THEY DON'T, ALL YOU HAVE IS PROOF OF NON-DELIVERY, WHICH IS THE EXACT OPPOSITE OF WHAT YOU NEED!
- Will you have to attend a hearing? MAYBE yes, but usually, these claims are struck out or the PPC discontinues (very common with DCB Legal!). Will that hearing be at Northampton? NO! That's just a central starting point for claims. If you are an individual, you get the choose your local court. You do NOT want your case 'heard on the papers' (absolutely no). You want a hearing. You can claim your costs if you win, the hearing might never happen and you risk nothing (no CCJ, no huge costs) by defending, because if you were among the handful who report a loss here you'd have 30 days to pay and it would be less than on the claim form (£185 - £212 total).
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Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
Comments
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IN THE COUNTY COURT
Claim No.: xxxxxx
Between
Full name of parking firm Ltd, not the solicitor!
(Claimant)
- and -
Defendant named on claim (can’t be changed to driver 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 any conduct by the driver was in breach of any term. Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').
The facts known to the Defendant:
2. The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.
^EDIT THE END OF THIS PARAGRAPH. TO SUIT. If you were driving, add 'and driver' after the word 'keeper'. If you were leasing or hiring the vehicle then change 'registered keeper' to whatever is true.
OR if the Defendant doesn't know who was driving, say that.
OR deny being the driver if you weren't: ONLY IF TRUE!
3. {if you have a DCB Legal Claim you can copy the new 'Regarding the POC...' paragraph 3 from the thread by @shahib_02 and only need to add further details as para 3.1. if you have something important to add, such as the fact you appealed and they refused to cancel, or maybe the machines or app were not working, or if you were not driving and believe the NTK was non-POFA you should add that and deny liability}.
or
EXPLAIN IN YOUR OWN WORDS...NB: defences are written in the THIRD person as 'the Defendant', not 'I did this' nor 'my/me'
Say why the car was there - if you know - but don't answer to details that are not stated in the PARTICULARS OF CLAIM. If you didn't get any letters or it was years ago & you can't recall if you were driving, say that. ONLY IF TRUE.
If this was a residential site where the driver lives/was a permitted visitor, state those parking rights. Older residential defence examples are in the NEWBIES thread. CRIB SOME PARAGRAPHS BUT USE THIS TEMPLATE AS YOUR BASE.
We recommend you continue with this wording (yes, all of it! Paragraphs suitably re-numbered to allow for the above).
4. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:
(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and
(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.
5. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.
Exaggerated Claim and 'market failure' currently being addressed by UK Government6. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap). It is denied that any 'Debt Fees' or damages were actually paid or incurred.
7. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.
8. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).
9. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: https://www.gov.uk/government/publications/private-parking-code-of-practice.
The Ministerial Foreword is damning: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."
10. Despite legal challenges delaying the Code (temporarily withdrawn) a draft Impact Assessment (IA) was published on 30th July 2023. The then Government's analysis is found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf
11. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).
12. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):
13. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent. MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it.
14. The heads of alleged loss or purported 'contractually agreed' sums are unspecified and not adequately broken down, but it is denied that the added costs / damages sought were incurred. In this industry, debt collectors charge nothing when failing to collect parking charges.
15. A typical private PCN model comprises a series of demands that the Supreme Court called an 'automated letter-chain' and the parking charge itself is already inflated to generate a healthy profit. In Beavis, there were 4 pre-action letters/reminders and the £85 PCN was held to more than cover the minor costs of the operation. This is less about genuine 'parking management' and more of a PCN-generating scheme, where debt demands are part of the regime.
16. Whilst the new Code is 'on hold' and not retrospective, the new MHCLG Secretary of State must still introduce a statutory Code of Practice according to the legislation already enacted. It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure' and in 2025, the new Labour Government has pledged to resurrect the statutory Code with a Public Consultation expected within weeks. Statutory regulation will soon replace the BPA & IPC Code, so the clauses in the (temporarily stalled) February 2022 Code should bear significantly more weight than the industry's own self-serving version.
17. Attention is drawn to paras 98, 100, 193, 198 of Beavis. Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'. That judgment was unaffected by Beavis and remains binding as the only authority covering the clear abuse of parking firms routinely adding imaginary 'admin /debt recovery' fees to further enhance a large parking charge.
18. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper. The Claimant is put to strict proof of POFA compliance, if they are relying upon 'keeper liability'.
19. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they even meet the basic signage requirements in the current BPA & IPC Joint Code of Practice, which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').
CRA breach - lack of prominent terms
20. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not.
21. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk and adequately positioned where terms are bound to be seen) and all terms must be unambiguous and contractual obligations clear.
22. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).
ParkingEye v Beavis is distinguished
23. Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.
24. The Supreme Court held that deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps'). This Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:
(i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and
(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,
both leading authorities that a clause cannot be incorporated after a contract has been concluded; and
(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space''.
Lack of standing or landowner authority, and lack of ADR
25. DVLA registered keeper data is only supplied on the basis that parking operators who do not own the land must hold prior written agreement from the landholder. Should the Claimant try to rely upon the finding in One Parking Solution v Wilshaw in this regard, it is averred that this appeal judgment was misguided and plainly wrong. The DVLA rules and requirements that relate to private parking operators are a fundamental set of rules specific to parking on private land and regrettably, HHJ Simpkiss was not appraised about the 'KADOE' requirement for written landowner authority. Even the BPA & IPC's questionable industry Code gets this right: absent written landowner authority, there is no 'reasonable cause' to obtain DVLA data nor to issue PCNs.
26. It is not accepted that this Claimant (an agent of a principal) had written authority from the landowner to offer and form contracts with drivers at this site, in their own right. Many parking operators merely act as agents (contracted to put signs up and issue charges 'on behalf of' the site landowner) and this Claimant is put to strict proof of their standing to litigate.
27. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful average 5% of decided cases (ref: recent Annual IAS Reports). An impartial, fair appeals service was never on offer.
Conclusion
28. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm. The July 2023 Government IA analysis shows (from data from this industry) that the usual letter-chain costs eight times less than the sum claimed for it. The claim itself relies on an unfair charge which is entirely without merit, and should be dismissed.
29. In the matter of costs, the Defendant seeks:
(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and
(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5.
30. Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."
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.
Signature:
Date:
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD18 -
Copy of @Coupon-mad updated WS in RTF format for easy editing:
dropbox.com/scl/fi/i1u2vudfmb4xgyksxf6fd/Aug2023WS.rtf?rlkey=bfedahtd4lw4pqth2cncrrpli&dl=0
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