New Claim - OPS - Private Land, my own property.

Shadowcheater

Dear all,

I hope you are surviving well in these difficult times.

I had a County Court Claim form on the 10th April, From DCB Legal on behalf of One Parking Solution.

I filled an Acknowledgement of Service on the 13th of April and have complied my defence using a template kindly produced by Coupon Mad.

I would appreciate a set of new eyes particularly sections 17 and 18 which are relevant to my specific case.

Many thanks in advance.

IN THE COUNTY COURT Claim No.: xxxxxxx

Between

__________

DEFENCE __________

ONE PARKING SOLUTION (Claimant)

-and-

xxxxxxxxx (Defendant)

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 £180. This figure is a penalty, far exceeding the £85 parking charge in the Parking- Eye 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 atten- tion is drawn (but not limited to) parts 6, 10, 14, 17 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 B.

6. Applications by AOS member parking firms to try to reach the usually low threshold to set aside mul- tiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Hon-
our Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barris-

ter on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made.

1. 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.

2. 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 assess- ment, and listing such cases for trial should be avoided. The Court is invited to exercise its case manage- ment powers pursuant to CPR 3.4 to strike out this claim, which is entirely tainted by abuse of process and breaches of the CRA.

3. 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 As- sociation 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 indus- try 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 de- sirable 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 incoher- ent, 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.’’

1. 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 pos- sibility 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 indus- try, 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.

2. 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 Su- preme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in per- formance 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.

3. 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.

4. It is admitted that the Defendant was the authorised registered keeper and driver of the vehicle in ques- tion at the time of the alleged incident.

17. Popes Court is my home address, there are several allocated parking spaces for the residences, which need to display a permit. My permit was clearly displayed. There are in total eight clearly defined parking spaces of which One Parking Solutions manages. On either side of these parking spaces are areas which are unmarked and not managed by One Parking Solutions, the space is on my private property and is often used by many residents. It is in one of these areas that I recieved a Parking Charge. Appendix D

18. The landord of Popes Court, (Southern Housing) has been informed of this breach of contratct by One Parking Solutions and fully supports the fact that the space I parked in is not managed by One Parking solutions, is in no way violating any parking conditions. He is willing to testify in court. He has spoken
to One Parking Solutions about their agressive and unlawful tactics. When the landlord visited my on another issuse, I spoke to him about this parking Charge and he pointed out that this was the very spot he had parked in for his visit. Appendix E

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 peri- od, 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 00253240). 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.

Defendant’s signature: .................................................................... Defendant’s name: .................................................................... Date: ....................................................................

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) 

Appendix Photographic evidence

Appendix E: letter from Landlord of Popes Court

KeithP

Shadowcheater said:

I had a County Court Claim form on the 10th April, From DCB Legal on behalf of One Parking Solution.

I filled an Acknowledgement of Service on the 13th of April...

I am going to assume that 10th April 2020 is the Issue Date on your County Court Claim Form.
Please confirm.

With a Claim Issue Date of 10th April, and having filed an Acknowledgment of Service on 13th April, you have until 4pm on Monday 11th May 2020 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence.

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

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

As you have already found, 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.

Umkomaas

Paras 16 and 17 need to be written in the third person - 'the Defendant' did this, the Defendant did that ...... ', no I, me, my, myself in a Defence. 

Evidence should be submitted later in the process at the Witness Statement stage. The court transcripts can be attached to the Defence, but hold back on any photos and the landlord's letter until your WS - maybe a couple of months (or more) away. 

Coupon-mad might be interested in where your nearest court is - please tell us. 

Umkomaas

Is this particular claim different to your other OPS claim?

KeithP

In Totton? Then Southampton is a good court that understands private parking issues.

Looks like you now have three live court claims - this one, an OPS one in Brighton and a NCP one.

You are going to be busy.

Shadowcheater

Thank you all for for quick replies.

KeithP yes it is date of Issue as I have time, but would like to file it soon.
The County Court is Southhampton, I will ask for it to be changed to Brighton and Hove CC.

"Evidence should be submitted later in the process at the Witness Statement stage. The court transcripts can be attached to the Defence, but hold back on any photos and the landlord's letter until your WS - maybe a couple of months (or more) away. "

Great advice thank you so much. Do I leave the reference in my defence and just not file it? Or remove all reference to it at this stage?

Umkomaas, it is a different OPS claim, also thanks for reminding me to write in the third person.

17.
 Popes Court is the defendants home address, there are several allocated parking spaces for the residences, which need to display a permit. The defendants permit was clearly displayed. There are in total eight clearly defined parking spaces of which One Parking Solutions manages. On either side of these parking spaces are areas which are unmarked and not managed by One Parking Solutions, the space is on the dedendants private property and is often used by many residents. It is in one of these areas that the defendant recieved a Parking Charge. Appendix D

18.
The landord of Popes Court, (Southern Housing) has been informed of this breach of contratct by One Parking Solutions and fully supports the fact that the space the defendant parked in is not managed by One Parking solutions, is in no way violating any parking conditions. He is willing to testify in court. He has spoken to One Parking Solutions about their agressive and unlawful tactics. When the landlord visited my on another issuse, The defendant spoke to him about this parking Charge and he pointed out that this was the very spot he was parked in for his visit. Appendix E

beamerguy

Shadowcheater ....Nice to see you have read carefully this forum. .. good work.

If DCBL continue with this claim, they are going to be slaughtered. Southern housing as a witness and the Added DCBL scam charge , would love to watch a judge turn them into whimpering mess

Umkomaas

Southampton court is probably your very best bet to see this thrown out before a hearing. You won't need to nominate the court until you get to the DQ stage, a few weeks away. 

Remove any reference to photos and the landlord's letter from the Defence. 

Shadowcheater

Brilliant!! Thank you so much, will as for Southampton Court.

Will remove reference to photos and letters.

Redx

The statement of truth is incorrect since the 6th of April 2020

Le_Kirk

6. Applications by AOS member parking firms to try to reach the usually low threshold to set aside mul- tiple strike-out orders have been reviewed by more than one area Circuit Judge, including His Hon-
our Iain Hughes QC, occasioning District Judge Grand at Southampton to hear submissions from a barris-
ter on 11th November 2019. The court refused to set aside the Orders and, tellingly, no appeal was made.

Your formatting has made some errors, I expect it will be corrected in your final submission: -

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.

Also your numbering is incorrect.   If you really are using the New Defence Template written by Coupon-mad, your paragraphs 1 - 15 would be the same as C-m's and your additional paragraphs would be 16 & 17 as per the instructions given by C-m.  If you have decided to submit a defence "based on" C-m's defence with your own additions/modifications, then forget I mentioned it.