IAS appeal multiple tickets

MistyZ

fustratedParker said:

Yeah, I tend to use American spelling, which is why I was using the word curb, and why I said that going forward I should stick to British spelling if I'm going to be dealing with the British legal system haha

The parking companies and their associates don't think like this - their spelling is often atrocious.  It's a telling sign ... They rely heavily on the fact that their 'victims' so often feel intimidated or overwhelmed, often unnecessarily.  

You, on the other hand, are a stickler for detail.  The average born & bred Brit is in no better position vis a vis the system than you are.  In fact I think you have the edge!  Go get 'em!  

fustratedParker

So slight update. I have emailed the MA with the advice given here and based on a few other threads, referring to how they are infringing on my leased rights, etc. I have also submitted a SAR to Link for all of my documents and pictures. I followed up with a phone call, and they explained that to view the pictures, you have to click on the "pay your parking charge notice" button, input your PCN and VRM, and you'll get the pictures, before you pay. I have done that, and looked through all the images that they have of the vehicle. Two relevant ones are:

hxxp://imgur.com/rjnqv6E
hxxp://imgur.com/mIonfYr

Regarding the first picture, it seems that my car was parked slightly more forward than I remember. You can see the bush in the left of the picture, as seen in the other pictures that I took. NB, I didn't have a chance to take pictures before moving my car, as I needed to urgently go to work, (Covid-related), so I took them upon returning. I still believe I have a strong case, as no lines are drawn on the ground, so the whole kerb should be considered "legal parking". I'm worried, however, that it will seem that I was trying to deceive by sending pictures of my car in a slightly different position. I simply parked it where I recalled having left it. Any thoughts?

And regarding the second picture, you can see that there are a couple of notes on my windshield, seemingly left by my neighbours, urging the ticketman to stop adding tickets. It is particularly interesting, because those notes were not there when I went to my car, in fact I have never seen them before! Of course, I can't prove that the ticketman removed them, if anything it would be rather stupid of them to take a picture with the note and then remove it, but alas... just thought it was an interesting tidbit.

Umkomaas

I think you probably have a sufficient number of posts under your belt to now be able to post live links.  But for now, here are your latest:

http://imgur.com/rjnqv6E
http://imgur.com/mIonfYr

nosferatu1001

Again - without any bays being marked, they've not got a hope of proving your car wasn't properly parked. 

I'd suggest a cease and desist to the ma 
warn them that, shou,d you have to obtain an injunction, it will be at their cost. 

Coupon-mad

'curb' (a verb in the Country) does not have the same meaning as 'kerb' (a noun meaning the edge of the pavement).

I really hate reading 'curb', 'windshield' and 'parking lot' on this forum...they are US words like diaper and sidewalk and other such stuff that we don't use in Britain!

Pedant mode over!

D_P_Dance

It is not the spelling I object to so much, it is the pronunciation,  erbs instead of herbs, booey instead of buoy.  rowt instead of route.  

fustratedParker

Hello folks,
Many months later and this has progressed to court. Indeed, I received the claim right before Christmas, and now have until the end of the week to submit my defence (I have already filed my AoS). I have written a defence based on the lovely template by Coupon Mad, and have added excerpts from other example defences I found in the forum. I have also added, of course, points relevant to my case, particularly point 5 regarding Link Parking's allegation I was parked outside a marked bay when, in fact, the bay isn't marked at all, and neither are many around the property. I also added a line to Coupon's para about small font on the signs explaining that one cant even read it in the picture they provided! This is completely true, and I found it particularly ironic. It can be found in para 26 in my defence.

I hope this is the right place to post it for feedback, please advice if instead I should start a new thread, I thought it would be good to keep it all together. Thank you guys and girls ever so much as always, and please let me know any suggestions-modifications-edits you may have.

Cheers,
FrustratedParker

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Link Parking Limited

(Claimant)

- and -

XXXX

 (Defendant)

____________________

DEFENCE

____________________

Preliminary

1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

3. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

4. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. It is also admitted that the Defendant was the Driver of the vehicle, but again liability is denied.

5. The Claimant alleges that the vehicle was parked outside the confines of a marked bay, which cannot be true as there are no lines that delimit the area, instead it is marked by a plaque with a number on it. Around the property there are more parking areas that do not have lines nor plaques identifying them, yet parking is allowed therein. Such an inconsistent marking system cannot be a basis for a Claim.

6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

8. The signs displayed at the property offer no contract to people without a permit. The contract offer is only extended to those with a permit, therefore, there is no consideration flowing between the parties and the signs are prohibitive and do not offer a contract to those without a permit. In the absence of any consideration no contract exists.

9. This was reflected in the “PCM vs Bull” case, where Defendants were issued parking tickets for parking on private roads with signage stating “no parking at any time”. District Judge Glen in his final statement mentioned that “the notice was prohibitive, and didn’t communicate any offer of parking and that landowners may have claim in trespass, but that was not under consideration”.

10. The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon. Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3. That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2. NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

11. It is denied that the exaggerated sum sought is recoverable. The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135. Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper. At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable. ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

12. 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 the cost of their standard automated letter-chain. It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.

13. The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties. It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing. He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice. He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed. It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

19. Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case). It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land. There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

20. Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable. However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.

21. Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text. 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 (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

22. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail. 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.

23. The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

24. 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 Sch2 of the CRA. Indeed, in the pictures supporting the Claim that the Claimant provided, they supplied a picture of the sign, where the details of the terms cannot be read, as they are exceedingly small. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

25. 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 (the ‘red hand rule’ case) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii) 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''. In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio. To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

26. Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, 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. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike." The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

 

27. In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant. It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints. There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

28. (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance. The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

29. The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim.

Statement of Truth

(too long to fit in post, I'll add it on document)

Redx

post the paragraphs you have changed or adapted , removing the coupon mad written paragraphs

you surely cannot expect members here to trawl through thousands of words as displayed above ?

we normally see 2 paragraphs where changes have been made , not over 29 !!!

typically they are 2 & 3 only

ps:- you are correct in keeping it all together, in one single thread only

KeithP

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

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

Coupon-mad

That is not the template defence!