OWN SPACE DEFENCE - PLEASE ADVISE

Hussar1715

zhonguonuren - Ack. I have now written to DCB legal as suggested. Thank you. 

Coupon-mad - I have added your suggested paragraphs and a couple of my own pertinent to the specifics of my case. I have also reached out to the individual you mention with a similar OBServices issue. Watch this space. 

Redx - Thank you - what is the correct wording now please? (Is it the one mentioned in the NEWBIES thread above) I assume it's not the one I have in Version 2 (below)? 

ALL - Please see below for Version 2 for comment. Clearly I will add the appendixes and fill in my name etc once approved. 

Le_Kirk

You could search the forum or ask Auntie Google or you could use the following: -

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

nosferatu1001

no version 2?

Hussar1715

VERSION 2

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.

 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.  

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.

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.

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 .

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.  

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).

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.

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.''   

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.''   

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.

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.’’

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.

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.

END OF FIRST HALF (TOO LONG FOR ONE THREAD)

Hussar1715

VERSION 2 SECOND HALF (TOO LONG FOR ONE THREAD)

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

This claim relates to two January 2016 parking charges, cherry-picked by the Claimants and their legal representative robo-claim firm, 'DCB Legal' and it is admitted that the Defendant was most likely the driver.  The facts are that, every time the Defendant came back from barracks and had not had a fair opportunity to place the permit 'front and centre' of the car dashboard within a minute or two, this predatory ex-clamper firm (whose current Director, Douglas Harris, has convictions along with this Claimant company, where he admitted 13 offences including displaying misleading signs and sending misleading letters) would pounce and issue another 'parking charge'.  This was without any grace period being observed and despite the operatives knowing that the vehicle had a permit and that it was always the same car in the same permitted space.   There was no contravention, no consideration flowed between the Claimant and the Defendant on these occasions and there was no 'meeting of minds' nor agreement by the conduct of parking, to pay a three figure penalty if the permit could not be located in the adjacent premises and placed centrally on the car dashboard within two minutes flat.

The Defendant has been harassed and bombarded by (somewhere close to a hundred in total) intimidating 'PCNs' 'reminders', misleading debt demands and pre-action letters over the years from the same Claimant and more recently, DCBL Collections, then DCBLegal, regarding a dozen or so (identical facts) charges from 2015-2016.   The Claimant has acted aggressively, oppressively and wholly vexatiously from the outset in pre-and post-action behaviour.  It is the Defendant's belief that - aided and abetted by their robo-claim legal firm - this Claimant is setting up to file individual claims against him one by one, and thus accumulate disproportionate court costs and an unrecoverable £60 to each and every one, as well as seeking unjust enrichment in the form of several years of interest, despite the delay being entirely theirs.

The Claimant seems to have already met the high bar of 'unreasonableness' as set in the recent case of Dammerman v Lanyon Bowdler LLP [2017] EXCA Civ 269 (12 April 2017).    The Defendant will seek his full costs in defending each and every claim, should they not be struck out for the various abuses of process.  If the Claimant seeks to amend their claim to try to recover their negligent conduct by adding in the other PCNs hovering at pre-action stage at the present time, then relief from sanctions should not be allowed.  The court is invited to find on the facts already disclosed by both parties that this Claimant's conduct provides for no cause of action, and that this meritless claim is intentional and contumelious.  The court is invited to use the discretion within its case management powers to summarily strike out the entire claim, and/or order that the Claimant be debarred from filing new claims for parking charges of substantially identical facts.  In the alternative, the court is invited to set a preliminary telephone hearing to require the Claimant to explain its predatory conduct and why they should not be the subject of an order for costs on the indemnity basis.

The court is also taken to the well known rule in Henderson v Henderson [1843-60] All E.R. Rep. 378 that was considered in Johnson v Gore Wood & Co (No. 1).  That rule provides that when a matter becomes the subject of litigation between parties in a court of competent jurisdiction, the Claimant must bring their whole case before the court.  In the absence of special circumstances, the parties cannot return to the court to advance arguments or fresh claims which they could have put forward for decision on the first occasion but failed to raise. The abuse at which this rule is directed, as articulated in Barrow v Bankside Agency Ltd., is ''…desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do”.  In this case, these unfair parking charges have dragged on for five years and still the Claimant has filed only one claim, yet continues to threaten something like a dozen more. 

The gated, private car parking area contains allocated parking spaces demised to residents and a visitor bay. Entry to the gated, private parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

Under the terms of the Defendant's lease, a number of references are made to conditions of parking motor vehicles. The definitions, at the Fourth Schedule, Clause 6: 'The right to the exclusive use of the Parking Space for the purpose of parking a private motor vehicle...' and in the Eighth Schedule, Part Two, Clause 3, 'Not to use the Parking Space for any purpose other than for the purpose of parking a private motor vehicle ...'

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.

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''.

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 03182298).  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.

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

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.

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.

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:                              …22.04.20

Appendix A attached: Order to strike out a similar claim; abuse of process (Skipton)

Appendix B attached: Order to strike out a similar claim; abuse of process (Warwick)

Appendix C: Judgment and reasoning for refusal to set aside Order (Southampton)

nosferatu1001

That is not the correct version. 
Feb 2020 template has the correct version I would hope by now!
No para are numbered - why not? we cannot easily ref. our issues, and all defences MUST have numbered para. 
How close is this to teh feb 2020 defence template? Obviously if you use the template, we only need to see what you have amended. 

Le_Kirk

Hussar1715 said:

END OF FIRST HALF (TOO LONG FOR ONE THREAD)

When you find the correct version (see above) you ONLY need to post paragraphs 16 & 17 which would contain your particular circumstances.  The rest is fixed and taken as read.

Coupon-mad

IMHO it's a really good adaptation and I do recognise it as the Feb 2020 template plus vital facts added.

Le_Kirk

nosferatu1001 said:

That is not the correct version. 
Feb 2020 template has the correct version I would hope by now!
No para are numbered - why not? we cannot easily ref. our issues, and all defences MUST have numbered para. 
How close is this to the feb 2020 defence template? Obviously if you use the template, we only need to see what you have amended. 

Le_Kirk said:

Hussar1715 said:

END OF FIRST HALF (TOO LONG FOR ONE THREAD)

When you find the correct version (see above) you ONLY need to post paragraphs 16 & 17 which would contain your particular circumstances.  The rest is fixed and taken as read.

Coupon-mad said:

IMHO it's a really good adaptation and I do recognise it as the Feb 2020 template plus vital facts added.

Just make sure you add paragraph numbers as it makes it easier to refer to, first of all on the forum and secondly if/when it gets to court and you can refer the judge to paragraph number NN.

Hussar1715

ALL - thank you, however there seems to be disagreement. I believe this to be the Feb 2020 template - it certainly came from the link provided that suggested it was the Feb 2020 template and was named as such. Could we please confirm if this is indeed what it is meant to be and if I am 'good to go'?

The numbered paras was just a formatting issue - you can take it as read they will be numbered.

Two questions: Can I, therefore, use the above statement of truth (in my Version 2 above - again, there seems to be disagreement on this, or do I need to use Le_Kirks longer one?  

And second, presumably I do need to attach Appendix A, B and C as they are referenced in the main body (just double checking). 

Thank you all very much - sterling effort and advice from all.