Update: Won - Letter from Court received - Gladstones & HX Car Park Management

Kim91

Afternoon All,
I received my letter from Northampton court (Issue date 9th March) and am now looking to file a defence. I completed the AOS online right away as per the instructions on the Newbies thread , but have since been caught up with work and getting everything sorted around Covid-19 as we're a key company. I have been reading though forums in the evening when I have had chance and have updated the template defence for my case. I would like some comments on this before I look to submit this week.
As background, the charge is for July 2018 and I only became aware of it via Gladstones last year. I had followed advice on here and filed for an SAR from HX Car Park Management Ltd and had sent a few requests and questions back to Gladstones as no information was sent with the letter before claim. They are claiming for overstay of minutes at a car park which uses ANPR and PDT. There was inadequate signage for the driver and the car park states an all day fee and only a small sign at the car park entrance about the new ANPR system. As this is so long ago and not nearby, I have been unable to get photos from the car park now and as I was unaware of the charge have no photos of the car park from July 2018 and no longer had the ticket. Gladstones and HX have been unable to provide me pictures in situ from the car park either. I also believe there is no landowner approval for this and have since seen a newspaper article in April 2019 that another car parking management company had been running the site for several years and "recently" installed the ANPR system. That company (which as far as I can find has no relation to HX) have recently (Jan 2020) put in planning permission for new signs and ANPR camera on that car park. I therefore believe that they manage the car park, therefore can HX also manage the car park or maybe they only did temporarily? The driver believed they had put in enough money for the time, but the PDT read outs have no log on monies entered so we can't confirm the shortfall. There is also an abuse of process defence as Gladstones added their 'normal' £60 charge. I appreciate your help with this one and apologies for not creating the thread sooner.

My defence is below and I have added terms 16 and 17:

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 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 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 signage posted on entry to the car park is misleading as the ANPR sign is far too small to be read in a moving vehicle and the car park does not state specified Pay and Display periods, but rather a £3.50 daily charge. There was insufficient signage in the car park at the time of parking in July 2018.

 17.  The claimant has been unable to produce a record of monies collected by the PDT on the date in question, instead producing only a list times issued against vehicles registrations. It is believed that the PDT was not fully functional and did not acknowledge all moneys entered, resulting in an incorrect ticket being issued.

 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 09313114).  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.   For any or all of the reasons stated above, the Court is invited to dismiss this claim.

 22.    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.

 23.   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.

 24.   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.

KeithP

Kim91 said:

I received my letter from Northampton court (Issue date 9th March) and am now looking to file a defence. I completed the AOS online right away as per the instructions on the Newbies thread.

Does the NEWBIES thread state to complete the Acknowledgment of Service straight away?
If so, it is wrong.

Upon what date did you file an Acknowledgment of Service? 
You MCOL Claim History will have the definitive answer.

Kim91

Sorry, it may not have been that thread specifically but the threads I read said there was no need to delay and to just submit it so I did. It was completed on the 14th March.

KeithP

OK, An AoS can be filed too early and that might reduce the time you have to file a Defence. 
You said you filed an AoS 'right away' leading me to think that maybe you had filed it too early.
As the AoS was filed over five days after the Claim Issue Date, then no problem.

With a Claim Issue Date of 9th March, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 14th April 2020 to file your Defence.

That's over two weeks 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.

Kim91

I put my defence above using the template defence and updating for (especially 16/17) my case. Is there any feedback on it?

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, when life gets back to normal, it will become impossible for those scammers who are left to continue their vile trade, 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.

nosferatu1001

The point of the template is to only put the para in you have changed - 16 and 17
You cant expect us to read a template again for you. 

Le_Kirk

I would swap 16 & 17 around as you go from signs to PDT back to signs, why not keep it together.  Also not sure what your point is about the signs not displaying a charge per period rather than a daily charge.  A charge per day is for a period ........ of a day!  Maybe, if it is something that caused the PCN to be issued, it could be explained better or you could expand upon it when you get to witness statement stage.  Otherwise OK, you have the global amount in there correctly, just make sure that when you print it, the smiley disappears as that is a forum glitch and is caused by typing Appendix with no space between "B" and ")"

Kim91

Thank you. I will switch 16 and 17 and try to make them a bit clearer. I think what I was trying to say is that at the car part entrance it clearly says £3.50 all day, but doesn't state hourly PDT options. I will update it and may end up just including it in the witness statement. I'm aware of the smiley as well and have the template in a word document that I will update that one.

Coupon-mad

I think the defence is looking good, once you switch #16 and #17 and if you can add a simple explanation of how much the driver thinks they paid.  It's not clear from your words what they paid and why, and what the printout HX produced actually shows.  could it be that some coins fell through the PDT machine, if so, suggest so, and say the driver believes they paid in full.

Also don't use the acronym 'PDT' unless you firstly put it in full with 'PDT' in brackets after, to show the Judge what it means thereafter. 

If you are talking about the ticket produced then that is the PDT.  The machine is the 'PDT machine'.

Kim91

Hi all, thank you for your help so far. I filed my defence which reflected your comments and have now received the letter from the court confirming they've got it and sent it to Gladstones.

I have also got an e-mail from Gladstones with a copy of the Claimant’s completed Directions Questionnaire which they have asked me to respond to. This asks to settle in mediation, which I believe I need to say no to? It says to return by the required date, but doesn't actually give any indication of what this date is, so I'm assuming a standard 28 days and plan to complete it this week. 

One question is; it asks to mention any holiday you have coming up. I have two booked, but in the current situation, one is definitely being moved in the next few weeks. Should I try to wait until that's happened and state the new dates or mention the situation and let them know I will inform the court once it has been moved?

Thanks.