Defence for comment

S11Miller

Hi all having followed the excellent advice on here I have drafted the following defence for my case.  The particulars are that I parked in a carpark I have used for years to go to the football as it is not used at the weekend.  The claimant recently took over management of the carpark but there were no signs at the entrance or anywhere within the drivers eyeline to inform the change of conditions.  The only sign was about 25 yards away and very easily missed - I have photographic evidence of the lack of signage.  Anyway having studied the advice I have drafted the following and would welcome your input.

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. 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 attached as (Appendix C.pdf). 

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 facts are that the vehicle, registration XXXX XXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to xxxxxx Medical Centre whilst the driver (the Defendant) went to a football game. The car park does not have a barrier at the entrance or exit to the site and the Defendant had used the car park for several years outside of surgery hours with no previous issue.  The contravention alleged is an overstay based on ANPR images of the vehicle entering and leaving the car park.  

17.  The ANPR images were taken without any visible notices to the public that the images were being gathered, or for what purpose.  At the material time, the Claimant operated strictly subject to the Independent Parking Committee ('IPC') CoP, which states:

17.1 “You may use ANPR technology to identify vehicles for the purpose of issuing parking charge notices. Where ANPR technology is used, this must be clearly stated using appropriate signage. You must ensure there are appropriate manual checks in place to ensure correct registration details are used to obtain keeper details from the DVLA.”

18.    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.

 

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 11349895).  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.

 

21-24 are as Coupon Mad's original template

 

Statement of Truth

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

 

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

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

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

 

D_P_Dance

 I have drafted the following witness statement for defence ...

Witness statements and defences are two entirely different things, that looks like  a defence..  , 

Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

.

S11Miller

Yes it is a defence, sorry it's been a long day.

Any feedback much appreciated.

Cheers

KeithP

What is the Issue Date on your County Court Claim Form?

S11Miller

Issued on 13th Feb and Acknowledged on the 25th Feb

1505grandad

Presumably the claimant is IPC AOS member:-

ARDPark Ltd (Trading As ARDPark)

KeithP

S11Miller said:

Issued on 13th Feb and Acknowledged on the 25th Feb

With a Claim Issue Date of 13th February, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 17th March 2020 to file your Defence.

That's just over a week away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To file a Defence, follow the guidance in this post:

https://forums.moneysavingexpert.com/discussion/comment/76880595#Comment_76880595

Guidance on creating a Defence is also in that thread - in the first post on that thread.

Don't miss the deadline for filing a Defence.

S11Miller

1505grandad said:

Presumably the claimant is IPC AOS member:-

ARDPark Ltd (Trading As ARDPark)

yes it is

S11Miller

Hi folks, I cut out my added defence points from the above which is pretty much Coupon Mad's Abuse of Process defence edited with my case details.  If I could get some expert help on the below that would be very much appreciated.  I plan to submit this by end of the week to beat the 17th deadline.

Cheers

16.  The facts are that the vehicle, registration XXXX XXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to xxxxxx Medical Centre whilst the driver (the Defendant) went to a football game. The car park does not have a barrier at the entrance or exit to the site and the Defendant had used the car park for several years outside of surgery hours with no previous issue.  The contravention alleged is an overstay based on ANPR images of the vehicle entering and leaving the car park.  

17.  The ANPR images were taken without any visible notices to the public that the images were being gathered, or for what purpose.  At the material time, the Claimant operated strictly subject to the Independent Parking Committee ('IPC') CoP, which states:

17.1 “You may use ANPR technology to identify vehicles for the purpose of issuing parking charge notices. Where ANPR technology is used, this must be clearly stated using appropriate signage. You must ensure there are appropriate manual checks in place to ensure correct registration details are used to obtain keeper details from the DVLA.”

Coupon-mad

Independent Parking Committee

should be:

International Parking Community

And it sounds like you were technically a trespasser on the Medical Centre site, which is not something a private firm can twist into a licence to park for an agreed price. I would remove this for now:

 whilst the driver (the Defendant) went to a football game.

S11Miller

Thank you coupon Mad, much appreciated