Template defence to adapt for all parking cases with added 'admin/DRA' costs - edited 31st July 2023

Coupon-mad

PLEASE READ THIS POST FIRST TO UNDERSTAND HOW TO USE SOME OR ALL OF THIS SUGGESTED TEMPLATE AS PART OF YOUR INDIVIDUAL DEFENCE, THAT YOU CAN THEN DRAFT.  

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/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou/p1

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.

Feedback, yes! Qs about your case, no.

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, individual to your case.

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.

The CNBC at Northampton has just introduced new email addresses (Feb 2024):

https://forums.moneysavingexpert.com/discussion/comment/80631916/#Comment_80631916

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, where she shows 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

YOU WILL NOT GET A RESPONSE.  

YOU MUST THEN DRAFT YOUR DEFENCE IN TIME.

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:

1. Print your Defence if you are physically signing it.
   
2. Sign it and date it.
   
3. 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.
   
4. 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.
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 - CLAIM XXXXXXXX - 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.  YOU MAY HAVE TO WAIT TWO MONTHS OR SO FOR THE NEXT STEP TO HAPPEN:
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. 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
   
10. 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. 
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 (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, and telephone or video hearings are becoming common.  Face to face hearings are better though; it's 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 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 THIS PARAGRAPH If you weredriving, add 'and driver' after the word 'keeper'.

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. [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.

Most claims do not even state the alleged breach. If yours doesn't state what the breach was, add the paragraphs and judgments seen in the defence by @hharry100  here:

https://forums.moneysavingexpert.com/discussion/comment/80343627/#Comment_80343627

and change the paragraph numbering.

If this was a residential site where the driver lives/was a permitted visitor, statethose 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 Government

6. 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) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The 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.

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. It is denied that the added damages/fee sought was incurred or is recoverable. 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'.

15. This Claimant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

16. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

17. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgment.

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 seeking '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 meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breaches

20. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):

 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

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 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''. 

25.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In the official publication 'Parking Review' the IPC's CEO 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." 

Lack of standing or landowner authority, and lack of ADR

26. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The 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 DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. 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 4% of decided cases (ref: Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal 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 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

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:

YankeeBrit

2 x paras 7 & 9

YankeeBrit

Editable RTF file with corrected para numbers available here:

https://www.dropbox.com/scl/fi/y2dbj71jq99yslexl530p/Updated-defence-Aug2023.rtf?rlkey=i07s8l5q8o1c9c2sd7qqnoe3p&dl=0

Coupon-mad

YankeeBrit said:

Editable RTF file with corrected para numbers available

Thankyou!

I have put the paragraph numbering right now.

YankeeBrit

Copy of @Coupon-mad updated WS in RTF format for easy editing:

dropbox.com/scl/fi/i1u2vudfmb4xgyksxf6fd/Aug2023WS.rtf?rlkey=bfedahtd4lw4pqth2cncrrpli&dl=0

Belly_8uster

The template defence has 2 para 28s

Coupon-mad

Belly_8uster said:

The template defence has 2 para 28s

Thankyou...errr, does it?

Can't see that error in the Defence on page one or the recent 'Witness Statement example wording' on the last page.

Fruitcake

I can only see one para 28 in post 2 of this thread.

frazzg

So, just checking, the witness statement bit that coupon-mad posted a page or so ago, that should not be included in the defence but in the separate witness statement that is sent after the defence?

Coupon-mad

That's right.

They are months apart, separate stages.

And the WS doesn't stand alone, it's part of an 'evidence bundle' as the NEWBIES thread explains.