HX Car Park Management Limited

cheirourgen

Hi all,

I have had a claim form come through for a parking fine I incurred at a car park in Nottingham managed by Hx Car Park management. I probably should have posted my defence earlier for you guys to have a look through but it was all a bit last minute and I found a very similar case on here anyway. 
Basically I parked at this car park and the pay and display did not work. I tried their SMS payment service and this did not work also. I tried their online payment and their website would not load. At this point I should have probably just left the car park but I was running late for an appointment so stupidly just left it parked and thought maybe nothing would come of it. I had a load of fines sent to my old address and only found them along with the claim form very late. Anyway, I submitted my defence and it looks like its going to the county court (got a letter in the post confirming this but no date yet). 
I've never done this before so just looking for some general advice about my defence and anything extra I need to take with me as evidence or do in the mean time?

IN THE COUNTY COURT

CLAIM No: XXXXXX
BETWEEN:
HX Car Park Management Limited (Claimant)
-and-
XXXXXXX
_______________________________________

DEFENCE STATEMENT

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. 

2.1. It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the alleged incident. 

2.2. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXXXXXX when it was parked at XXXXX on XXXXX.

2.3. The PCN stated the contravention as 'failed to purchase and/or validate a pay and display ticket' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty).

2.4. In Jolley v Carmel Ltd [2000] 2 –EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms, should not be penalised for breach.

2.5. The principle of de minimis applies here, namely that this is a legal action for technical breaches of rules or agreements where the impact of the breach is negligible. 

3. It is denied that:
a. A contract was formed to pay anything more than the advertised tariff;
b. There was any agreement to pay a further penalty parking charge;
c. That there were Terms and Conditions prominently displayed around the site which prominently displayed the £100 penalty, in at least as large lettering as the tariffs shown at the machine 
d. In addition to the parking charge there was an agreement to pay additional and unspecified additional sums; 
e. The claimant in fact expended the claimed additional sums;
f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice. 

4.1. The Defendant made reasonable efforts to pay for a ticket for the appropriate time that the car was parked. The pay and display machine was out of order on XXXXX and efforts to pay via the stated website and SMS messaging were made but failed (evidence will be provided). 

4.2. It was only when the claim form arrived in the post, that the Defendant came to know that he had been penalised for what appeared to be a problem caused by the Claimant's payment system itself. There is evidence on the internet, including trustpilot reviews, to show that other users of car parks run by HX Car Park Management have suffered similar machine problems (evidence will be provided).

4.3. An automated PCN was issued. However, it was within the gift of the Claimant to ensure before starting enforcement at any site, that their systems are fit for purpose. 

4.4. It is clear that the claimant is trying to claim an excessive amount for what is an error in their own payment systems.

5. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct. 

6.1. It is clear that no conduct by the Defendant caused the penalty to arise and a professional parking firm could not reasonably lay any blame with the Defendant, for the faultiness of their own machine's and alternative payment systems. The charge offends against the reasonable and statutory expectations of trader/consumer relations requiring 'open dealing' and the doctrine of good faith.

6.2. Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015.

6.3. And the Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land, even if a Claimant is not relying upon that Act) is defined as ''an obligation arising under the terms of a relevant contract''. 

6.4. The Defendant avers that there was no such obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008. 

6.5. Further, to use and twist against a consumer, the failure of the Claimant's own old PDT machine system in order to paint a picture of failure by the innocent driver offends against paragraph 18 of Schedule 2 (the 'grey list' of terms which may be unfair) in the Consumer Rights Act 2015.

7. The Claimant may also try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:

7.1. Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

7.2. Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

7.3. Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

8. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices under defined parameters (including when caused by failure of their own data processing/excessive storage) and to form/offer contracts in their own name, and to pursue payment by means of litigation.

9.1 It is the Defendant's case that there can be no legitimate interest or commercial justification in pursuing paying patrons for a hundredfold penalty when the Claimant is at fault.

9.2. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

10.1. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and in breach of the Consumer Rights Act 2015 Schedule 2 'terms that may be unfair'.

10.2. The arbitrary addition of a fixed sum purporting to cover 'administration/recovery costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will –
10.2.a. only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
10.2.b. resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

10.3. The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third-party debt collector during the process.

10.4. Whilst quantified costs can be considered on a standard basis, this Claimant's purported added £60 'costs' are wholly disproportionate, are not genuine losses at all and do not stand up to scrutiny. This has finally been recognised in many court areas. Differently from almost any other trader/consumer agreement, when it comes to parking charges on private land, case law and two statute laws hold that the parking firm's own business/operational costs cannot be added to the 'parking charge' as if they are additional losses.

10.5. Parking Eye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') is the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. There are no losses or damages caused by this business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages.

10.6. It is indisputable that an alleged 'parking charge' penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending upon the parking firm) covers the costs of the letters, and all parking firms are very familiar with this case:

10.7. This charge is unconscionable and devoid of any 'legitimate interest', given the facts. To quote from the decision in the Beavis case at Para [108]: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''. Ad at [199]: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

10.8. In the Beavis case it was said at para [205]: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

10.8.a. at para 98. {re ...The desirability of running that parking scheme at no cost, or ideally some profit, to themselves} ''Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars [...] The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services...''
10.8.b at para 193. ''Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye's costs of operation and gave their shareholders a healthy annual profit.''
10.8.c at para 198. ''The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.''

10.9. The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (further, the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is well aware their artificially inflated claim, as pleaded, constitutes double recovery.

10.10. Judges have disallowed all added parking firm 'costs' in County courts in England and Wales. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court in Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

10.11. That decision in Wales was appealed by VCS but the added £60 was still disallowed on 30 Oct 2019, where District Judge Jones-Evans stated that even in cases parking firms win, he never allows the £60 add on, and despite parking firms continuing to include it in their Particulars, most advocates have now stopped pushing for it at hearings. The Judge said that a contract formed by signage is a deemed contract, which the motorist does not have the opportunity to negotiate. That, and the fact that there is no specified sum on the signage, means that the extra £60 cannot possibly be recoverable. He said that the £60 was clearly a penalty, and an abuse of process. However, in light of the overriding objective (CPR 1) he would allow the Claimant to proceed, but the £60 would not be awarded under any circumstances, and further, he ordered that the Claimant must now produce a statement of how they pleaded claims prior to Beavis, and subsequently.

cheirourgen

10.12. In Claim numbers F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later but in England - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being summarily struck out in the IOW and Hants circuit. These included BPA members using BW Legal's robo-claim model and IPC members using Gladstones' robo-claim model, and the Orders from that court were identical in striking out all such claims without a hearing during a prolonged period in 2019, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

10.13 At the hearing for BW Legal's N244 application to appeal against two 'test' cases that had been struck out by District Judge Taylor against Britannia Parking for trying to claim for £160 instead of £100 parking charge, the Defendants successfully argued on all three counts including a citation of the Consumer Rights Act 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points were robustly upheld by District Judge Grand, sitting at the Southampton Court on 11 November 2019, where he agreed that:
10.12.a The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
10.12.b The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287.
10.12.c The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the POFA para 9.

10.14. Further, it was successfully argued that the parking firm's consumer notice stood in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14 and due to the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before. The Claimants were refused their request to appeal - given that the £160 claim in its entirety, was adjudged to have been 'tainted' by breaches of two statute laws and going behind a Supreme Court ruling - and both Defendants were awarded their costs.

10.15. Consumer notices - such as car park signs - are not excused by the 'core exemption' as set out in the CRA 2015. The CMA Official Government Guidance says: ''2.43 In addition, terms defining the main subject matter and setting the price can only benefit from the main exemption from the fairness test ('the core exemption') if they are transparent (and prominent) – see part 3 of the guidance.'' and at 3.2 ''The Act includes an exemption from the fairness test in Part 2 for terms that deal with the main subject matter of the contract or the adequacy of the price, provided they are transparent and prominent. (This exemption does not extend to consumer notices but businesses are unlikely to wish to use wording that has no legal force to determine 'core' contractual issues).''

10.16. The definition of a consumer notice is given at 1.19 and the test of fairness is expended at 1.20: ''A consumer notice is defined broadly in the Act as a notice that relates to rights or obligations between a trader and a consumer, or a notice which appears to exclude or restrict a trader’s liability to a consumer. It includes an announcement or other communication, whether or not in writing, as long as it is reasonable to assume that it is intended to be seen or heard by a consumer. Consumer notices are often used, for instance, in public places such as shops or car parks as well as online and in documentation that is otherwise contractual in nature. 1.20 Consumer notices are, therefore, subject to control for fairness under the Act even where it could be argued that they do not form part of the contract as a matter of law. Part 2 of the Act covers consumer notices as well as terms, ensuring that, in a broad sense any wording directed by traders to consumers which has an effect comparable to that of a potentially unfair contract term is open to challenge in the same way as such a term. There is no need for technical legal arguments about whether a contract exists and whether, if it does, the wording under consideration forms part of it.''

10.17 In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

10.18 The Defendant is of the view that this Claimant knew or should have known that to claim £160 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015 and that relief from sanctions should be refused and costs will be sought by the Defendant on the indemnity basis.

10.19. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety (due to the similarities with the Southampton case where the entire claim was deemed 'tainted') and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.

11. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

________________________________________
 
I believe the facts contained in this Defence Statement are true.

Signed: XXXXX

KeithP

What is  the Issue Date on your County Court Claim Form?
If you have filed an Acknowledgment of Service, on what date did that happen?
Your MCOL claim history will have the definitive answers.

cheirourgen

issue date: 06/12/2019
AOS: 09/12/2019

Fruitcake

If you are relying on non-keeper liability at any point (I haven't checked yet) you need to remove information  from your post(s) about who was driving at the time of the alleged event. 

Only ever refer to The Driver and The Keeper.

If it was me I would never say, I parked or I drove, etcetera. 

KeithP

cheirourgen said:

issue date: 06/12/2019
AOS: 09/12/2019

If those dates are correct, then you had until 13th January 2020 to file a Defence.

Before we go further, please confirm those dates and check your MCOL Claim History to see that you haven't already got a Default Judgment against you.

It might be an idea to copy your MCOL Claim History on to this thread.

cheirourgen

Fruitcake said:

If you are relying on non-keeper liability at any point (I haven't checked yet) you need to remove information  from your post(s) about who was driving at the time of the alleged event. 

Only ever refer to The Driver and The Keeper.

If it was me I would never say, I parked or I drove, etcetera. 

Thanks for the advice, will Keep it in mind for the future but I haven’t claimed for non-keeper liability. I was driving.

cheirourgen

KeithP said:

cheirourgen said:

issue date: 06/12/2019
AOS: 09/12/2019

If those dates are correct, then you had until 13th January 2020 to file a Defence.

Before we go further, please confirm those dates and check your MCOL Claim History to see that you haven't already got a Default Judgment against you.

It might be an idea to copy your MCOL Claim History on to this thread.

Hey Keith, sorry, not sure if I made it clear in my original post but I’ve already submitted the defence just before 13th Jan. Bit late now but thought you guys could have a glaze over it to make sure there’s no major flaws in it that might cause me issues in front of the judge?

Le_Kirk

cheirourgen said:

KeithP said:

cheirourgen said:

issue date: 06/12/2019
AOS: 09/12/2019

If those dates are correct, then you had until 13th January 2020 to file a Defence.

Before we go further, please confirm those dates and check your MCOL Claim History to see that you haven't already got a Default Judgment against you.

It might be an idea to copy your MCOL Claim History on to this thread.

Hey Keith, sorry, not sure if I made it clear in my original post but I’ve already submitted the defence just before 13th Jan. Bit late now but thought you guys could have a glaze over it to make sure there’s no major flaws in it that might cause me issues in front of the judge?

Well that's a relief.  No default judgment then.

KeithP

Hey Keith, sorry, not sure if I made it clear in my original post but I’ve already submitted the defence just before 13th Jan.

Well I'm sure.  You didn't make that clear at all.

D_P_Dance

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.