County Court business centre claim form on behalf of BW Legal

1505grandad

"However, this Claimant is claiming a global sum of £165.06."  As per the instructions for the new Defence template do not include interest?  -  i.e. the global amount is £160?.

nosferatu1001

Yep, the instructions are to gigve the BASE amount ,no interest, no court fees, no filing cost. JUST the amount e.g. £160 whcih is PCN amount plus this unlawful "debt collector" charge 

Redx

Plus highlight the changes in Bold because nobody needs to read the template by coupon mad , just your changes , adaptations and any additions

Boroboy81

Thanks again for all your advise and guidance, below is my updated defence with the changes highlighted in bold. im hoping to submit my defence early next week, any advise on a witness statement or amendments to my defence would be greatly appreciated.

IN THE COUNTY COURT

Claim No.: XXXXXX

Between

PREMIER PARKING SOLUTIONS LIMITED

(Claimant)

-and-   

  XXX (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 £160.00. This figure is a penalty, far exceeding the £85 parking charge in the Parking Eye 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 Parking Eye, 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, Parking Eye 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 Parking Eye do not add false ‘debt letter costs/damages’ to their parking charges and consequently, 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 the reasons stated above, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

Boroboy81

1.      A ticket was paid for and displayed so all details could be seen and was in place the right way up when the car was locked and left parked. The Defendant has no knowledge of the point at which the ticket was dislodged from the windscreen, and was displayed in the footwell of the vehicle, or why, but made reasonable endeavours, and complied by conduct. However, the PCN was issued 2 days after the vehicle was parked, this would suggest that the parking ticket was on display for the first 2 days of the period the vehicle was parked.

2.      Defendant cannot be liable for effects caused by the weather

The Defendant cannot be responsible for the possibility that:

a) A gust of wind may have later dislodged the flimsy paper, despite the windows & doors being locked. The vehicle was occupying an external parking space facing an open dock side with no wind barrier.

b) An employee of the Claimant may have caused the ticket to move, perhaps accidentally when leaning across the car or pushing between vehicles. No suggestion of foul play is intended but this is a known predatory tactic among this industry.

c) A passer-by may have leaned on the car, when squeezing between the small bays to get to their own vehicle.

3.      Defendant cannot be responsible for events beyond their control frustrated contract,

None of the above scenarios are within a driver's control (The driver was by that time, absent from the location) and it is evident that someone else – or a factor outside anyone's control – was to blame. This appears to have been a case of casus fortuitus "chance occurrence, unavoidable accident", which is a doctrine that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties renders the contract FRUSTRATED.

 

 

4.      Flimsy parking tickets not fit for purpose - entrapment

Notwithstanding the above, the flimsiness of the ticket certainly played its part, and that is within the control of this industry, who are aware of the problem, which even have a name attributed: ''fluttering tickets''. They profit from drivers' misfortune caused by their own tickets' inability to withstand British weather; it is averred that this Claimant wilfully failed to address this issue (e.g. by adding sticky backing to the ticket allowing it to be fixed in place). Several similar court cases have been previously dismissed on the basis that it is deemed by the judge to be the responsibility of the parking company to provide sticky backed tickets (e.g. C8GF30W7 Link Parking v Mr H.  14/11/2016 Port Talbot).

 

5.      Location The court may need to acknowledge the location of this car park in Humberside facing the open sea. The Claimant is responsible to provide substantial tickets with sticky back, which can be affixed securely and displayed.

6.       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.

 

 

7.       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''.

 

 

8.        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 09946427).  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.

 

 

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

 

10.    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.

 

11.   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.

 

 

12.   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.

 

Statement of Truth

I believe that the facts stated in this Defence are true.

 

Defendant’s signature:  …………………………….…………………………….               

Defendant’s name: …………………………….…………………………….

Date:                              …………………………….…………………………….

Boroboy81

Apologise the formatting as changed during the copy and paste over 2 posts in my printed defence the bullet points are all in order.

1505grandad

"(Companies House lists their company number as 09946427)"

Are you showing the correct information  -  per Companies House:-

PREMIER PARKING SOLUTIONS LIMITED

Company number 06659134

Le_Kirk

In paragraph 5, the forum has changed "Appendix " into a smiley, you need to type "Appendix B )" with a space after the B and before the ) OR make sure it is not a smiley when you print it for scanning, signing and submission.

Coupon-mad

1505grandad said:

"(Companies House lists their company number as 09946427)"

Are you showing the correct information  -  per Companies House:-

PREMIER PARKING SOLUTIONS LIMITED

Company number 06659134

Well spotted!

There is no way I am checking that any posters have looked up these companies properly at Companies House, but I'm glad you did.  

It's a good defence, ready to go once the right company number is on it.

1505grandad

Thanks C-m  - actually the only reason I noticed it is because I had only just looked at the Companies House entry for UK Premier Parking and recognised the number. Like you I would not normally check that particular amendment.