Template defence to adapt for all parking cases where they add false admin costs - edited March 2022 26 February 2020 at 5:30PM edited 4 May at 12:15AM in Parking Tickets, Fines & Parking 177 replies 94.4K views

Coupon-mad

PLEASE READ THIS POST FIRST TO UNDERSTAND HOW TO USE THIS TEMPLATE.  

HOWEVER, THE MAIN ADVICE ABOUT ALL THINGS TO DO WITH COURT AND WHAT HAPPENS WHEN, IS HERE IN THE NEWBIES FAQS (2nd post):  
https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou/p1

Below in the 2nd post of THIS thread, is a defence draft to adapt, for all PARKING CLAIMS (except PARKING EYE - see NEWBIES thread for those claims).

The facts of your case must be added as #2 and #3 - add more 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.  I intend to remove most of the other old defence examples from the NEWBIES thread to make it easier for everyone. 

No posting your drafts here please.  Feedback, yes!  Stuff about your own case, no... 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 based on this one.  

We win 99% of cases we help defend here, so be confident, join the forum start a thread showing us your draft defence, and win with our help.

FIRST THING TO DO - BUT NOT SOONER THAN DAY FIVE FROM THE 'ISSUE DATE':

Acknowledging service of a claim:
Here is the up to date document from SoftwareMad, showing how to acknowledge a claim, which is to be done within the first fortnight to buy yourself time to defend (but preferably after DAY FIVE, or you eat into your allowed days!):

https://www.dropbox.com/s/ni1h8g3u5skvynt/MCOL AOS help file.pdf?dl=0

Submitting your defence:
Thanks to KeithP for this summary of how to submit a defence by email to the CCBCAQ email address:  

If you have no access to a scanner, then put an electronic signature in it. When you are happy with it, your defence is to be filed via email as suggested here:

1. Print your Defence.
   
2. Sign it and date it.
   
3. Scan the signed document back in and save it as a pdf.
   
4. Send that pdf as an email attachment to [email protected] but due to the CCBC's dysfunctional systems, only do this during working hours (a weekday) and you MUST get an acknowledgement.  Also copy in the parking firm's legal team or solicitors, whose email you can find on any other thread about the same law firm.
5. 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 RE CLAIM XXXXXXXX - Please find my Defence attached,
6. IMPORTANT - MAKE SURE YOU GET AN EMAIL ACKNOWLEDGEMENT BACK FROM THE CCBC!  After filing your Defence, there is more to do.
7. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire and the usual intimidating template letter saying they 'intend to proceed'. Nothing of interest there. Just file it.
8. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet - https://www.gov.uk/government/publications/form-n180-directions-questionnaire-small-claims-track , and then complete it as described by bargepole in his 'what happens when' post linked from post #2 of the NEWBIES thread - https://forums.moneysavingexpert.com/discussion/comment/64350585#Comment_64350585
9. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.  
   
10. Send 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, or Google it, because a DQ sent by email is OK and then you know/can prove it's been sent.   
11. 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!
12. Will you have to attend a hearing? Yes - unless the claim is struck out or the PPC discontinues (fairly common!).  Will that heaing 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, and in 2020, telephone hearings are becoming more likely.  Face to face hearings are better though, and easier to follow the visual cues from the Judge who allow for Defendants being scared and unused to the situation.  You do NOT want your case 'heard on the papers' (absolutely no).  You want a hearing and you can claim your costs if you win, 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 (£175 - £200 total).

Coupon-mad

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant’s name from N1 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 gave rise to a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or to form contracts in their own name at the location.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. 

^EDIT THIS, IF NOT THE REGISTERED KEEPER^.  You might add 'and driver'.   Alternatively, deny being the driver in #2 (ONLY IF TRUE).  If you don't know for sure, say say that).

3. [EXPLAIN IN YOUR OWN WORDS...]  

Explain briefly what business the driver had there & what went wrong?  Were signs obscured/unlit in darkness? Did a permit slip off the dash, or the keypad failed to record the full VRM?   If the PCN was issued at a residential site where you live, mention your parking rights - equally good if there's no mention of permit obligations - in your lease.

4. The facts in this defence come from the Defendant's own knowledge and honest belief.  The Defendant should not be criticised for using some pre-written wording from a reliable source.  The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. This Defendant signed it after full research and having read this defence several times, because the court process is outside of their life experience.  The claim was an unexpected shock.

5. With regard to template statements, the Defendant observes after researching other parking cases, that the Particulars of Claim ('POC') set out a generic and incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) was served with a Letter of Claim.  The POC is sparse on facts about the allegation, making it difficult to respond in depth at this time.  

6.  This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite indisputably knowing that this is now banned.  It seems they have also calculated 8% interest on that false sum. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied).  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  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 (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that admin costs inflating it to £135 'would appear to be penal'.

7. This finding is underpinned by Government intervention and regulation.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

8. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued." 

9. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "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. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders.  Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis; essentially Trade Body Board member colleagues passing motorists' data around electronically to share inflated sums of money.  

11. This Claimant has not incurred any additional costs (not even for reminder letters) because the parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

12. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.

13. Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice.  The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'.  A clear steer for the Courts.

14. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).  Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.  In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made.  Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. The learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

POFA and CRA breaches

15. 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, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').  If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance. 

16. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'.  In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

17. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer.  In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair dealing and good faith. 

ParkingEye v Beavis is distinguished

18. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts.  That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach.

19. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, 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 the alleged breach.  The intention cannot be to punish a driver, nor to present them with concealed pitfalls/traps, hidden terms or unfair/unexpected obligations.

20.  In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver.  Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

(ii) 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.  It was unsurprising that she did not see the sign, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).  

21. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies.  In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." 

Lack of landowner authority evidence and lack of ADR

22. DVLA data is only supplied to pursue parking charges if there is an independently signed landowner agreement (ref: KADOE rules).  It is not accepted that the Claimant has adhered to a defined enforcement boundary, hours of operation, any extended grace period or exemptions (whatever these definitions were) nor that this Claimant has authority from the landowner to issue charges at this place or for the reason given.  The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents for a principal, as some parking firms do.

23. Further, the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR).  The rival Trade Bodies provided 'blink and you've missed it' time-limited appeals services which failed to consider facts or rules of law properly and unfairly rejected disputes: e.g. despite using legally qualified but anonymous Adjudicators, the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).  The Appeals Annex in the new Code shows that genuine disputes such as this, even if made late, would have seen the charge cancelled, had a fair ADR existed.  Whether or not a person engaged with it, the Claimant's consumer blame culture and any reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair ADR was ever on offer.

24. In the matter of costs, the Defendant asks:

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

(b) that, in the event of a late Notice of Discontinuance (due to parking firms using and abusing the court process as a cheap - indeed lucrative - form of debt collection) the hearing continues as a costs hearing. CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) but 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))."   The Defendant may seek a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5.

Conclusion

25. With the DLUHC's ban on additional costs, there is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only dismiss extortionate costs in the tiny percentage of cases that reach hearings, whilst allowing other such claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers every year, who suffer CCJs or pay inflated amounts due to intimidating tactics at pre-action stage. The Defendant believes that knowingly enhanced parking claims cause consumer harm on a grand scale and it is in the public interest that claims like this should not be allowed to continue.  The Defendant invites the court to dismiss the false 'costs' element at least, and to consider whether an appropriate sanction is to resume the policy of striking out parking claims altogether, where the POC include a vague but fixed sum in 'damages/costs'. 

26. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant. 

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:

Date:

beamerguy

This thread has now been added to ... ABUSE OF PROCESS PART 2
https://forums.moneysavingexpert.com/discussion/6103933/abuse-of-process-thread-part-2/p1?new=1

BrownTrout

Have put the phone down mum !!!

savta

Appendix C? Southhampton case? 
Thanks again everyone especially Coupon Mad !

on.wheels

Fantastic, I'll adjust my defence now. So this should be used in place of your previous defence, here? https://forums.moneysavingexpert.com/discussion/comment/75937581/#Comment_75937581

Coupon-mad

Edited in 2022:

This new Template Defence has been edited in March 2022 and covers the very welcome statutory Code of Practice produced by the DLUHC on 7th February, the development for which included my personal involvement and attendance in the Government's Steering Group since 2020, which I was not able to admit until now.

Fully discussed in bargepole's thread here, so newbies can understand this ground-breaking news and the changes:

https://forums.moneysavingexpert.com/discussion/6333036/breaking-news-government-has-announced-the-statutory-code-of-practice-and-enforcement-framework/p1

  

BrownTrout

Are there any PDF Links of the two other cases rather then an insert of a photo to a word document as i dont know how well that will go down with the courts when they print of and send documents to claimaints

Coupon-mad

No attachments now go with the new defence.

See the NEWBIES thread section under the red heading 'IMPORTANT - KNOW WHAT HAPPENS WHEN'.  Evidence and photos go with the witness statement from the Defendant, weeks before their hearing.

beamerguy

This is perfect.   There is only a number of county courts in the UK and firms like BWLegal keep on spreading their virus, it's now time limited for them and all the other legals ...... of course the dream world of Gladstones will continue ...... they have to keep on proving  themselves to their members in their IPC scam with the message "CARRY ON SCAMMING"

CastorTroy

@Coupon-mad You highlight not to start with point (1) unless you were not the driver. In a case where you genuinely don't know who was driver was (multiple drivers) and long time ago should it still be included?