Received 15 parking tickets, now pursued by BW Legal

Coupon-mad

With Britannia you must also do your homework about the 'Britannia Parking Services Ltd' issue that they may well have, which kills any claim stone dead if their landowner authority is in the wrong company name.

I'm not saying any more, it's all in the forum.  The POPLA Decisions sticky thread spelt it out earlier this year with a win about it explained, and beamerguy helped someone win at Reading Court due to the insurmountable issue that Britannia seem to have with most of their contracts that I've seen, in that they are almost always in the wrong company name (not the Claimant's name - similar but no cigar).

Itachi2kg

I am now ready to send the defence, but would like advice on how it looks please

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Britannia Parking Group

300 7th Floor

County hates house

Poole road

Poole Dorset

BH12 1AZ

(Claimant) 

- and -  

xxxxxx

 (Defendant)

____________________

DEFENCE

____________________

1.       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:

2.       It is admitted that the Defendant was the registered keeper and driver of the vehicle in question. 

 

3: Signs in this car park are not prominent, clear or legible from all parking spaces. Furthermore, there is no marked parking bay at the location nor boundary of the venue

 

BPA’s Code of Practice (18.2) states:

“Entrance signs play an important part in establishing a parking contract and

deterring trespassers. Therefore, as well as the signs you must have telling

drivers about the terms and conditions for parking, you must also have a

standard form of entrance sign at the entrance to the parking area. Entrance

signs must tell drivers that the car park is managed and that there are terms and

conditions they must be aware of.”

BPA’s Code of Practice (18.3) states:

“Signs must be conspicuous and legible, and written in intelligible language, so

that they are easy to see, read and understand.”

BPA’s Code of Practice (Appendix states:

“If you think there are other circumstances where it is impractical or undesirable

to have an entrance sign, you must tell us in advance and get our approval to

amend the sign or not have one.”

“Signs should be readable and understandable at all times, including during

the hours of darkness or at dusk if and when parking enforcement activity takes

place at those times. This can be achieved in a variety of ways such as by direct

lighting or by using the lighting for the parking area. If the sign itself is not directly

or indirectly lit, we suggest that it should be made of a retro-reflective material”

 

I have attached a photo (FIG 1) of what the sign looks like where next to the corner parking spot I parked in, as you can see it is clearly breaching BPA’s code of practise as it isn’t put up high enough to been seen, it is clearly not “easy to see”

 

 

 

 

 

FIG 1

 

 

Also please see figure 2 of a second sign which is almost covered up by the surrounding bush and is also put up extremely low for it to be called “easy to see” from the angle I parked, the sign isn’t actually visible as the bush as consumed the sides of it, blocking the view

 

 

 

 

 

 

FIG 2

 

 

4: No notice to business owners or residents regarding the opening/changes to parking service

 

I would like to add that I have parked in this car park for the past 12 years as I’m small local business owner in this area and I have purchased a ticket every single day. But since the beginning of 2020 (still on going)  there are major works due to a college being built opposite this car park, and before the time of the alleged parking breaches, this car park was not being monitored and was assumed to be closed by everyone in the area, workers of the area and visitors alike. The trades people working on the college build were using it to keep their building materials and one of the people said to me that it was okay to park here without a ticket (ticket machine was removed at this time) until the college is built as it won’t be monitored until then. But then without any notices to local business owners like myself or the public, also poor signage, Britannia Parking took control of the car park and started dishing multiple parking notices

 

 

5.  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.

 

6.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this money claim 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.

 

 

7.       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.  

 

8.  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').

9.  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

10.       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.  

Itachi2kg

Continued

11.       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.

12.   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.  

13.   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.

14.       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.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

15.   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.

16.   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.

 

17.  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.

As this operator does not have proprietary interest in the land, I require that they

produce an unredacted copy of the contract with the landowner. The contract and any

'site agreement' or 'User Manual' setting out details including exemptions - such as

any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of

veto' charge cancellation rights – is key evidence to define what this operator is

authorised to do and any circumstances where the landowner/firms on site in fact

have a right to cancellation of a charge

 

If the operator wishes to take legal action on any outstanding parking charges,

they must ensure that they have the written authority of the landowner (or their

appointed agent) prior to legal action being taken.

 

The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries

of the land can be clearly defined

b) any conditions or restrictions on parking control and enforcement

operations, including any restrictions on hours of operation

c) any conditions or restrictions on the types of vehicles that may, or may not,

be subject to parking control and enforcement

d) who has the responsibility for putting up and maintaining signs

e) the definition of the services provided by each party to the agreement.

 

 

18. No Planning Permission from Basildon

Council for Pole-Mounted ANPR Cameras and no

Advertising Consent for signage

 

A search in Basildon’s planning database does not show any planning

permission for the pole-mounted ANPR cameras for College Way, Basildon

nor does it show any advertising consent for signage exceeding 0.3m2

 

UK government guidance on advertisement requires:

“If a proposed advertisement does not fall into one of the Classes in Schedule 1

or Schedule 3 to the Regulations, consent must be applied for and obtained from

the local planning authority (referred to as express consent in the Regulations).

Express consent is also required to display an advertisement that does not

comply with the specific conditions and limitations on the class that the

advertisement would otherwise have consent under.

It is criminal offence to display an advertisement without consent.”

This clearly proves Britannia parking is/has been seeking to enforce Terms &

Conditions displayed on illegally erected signage, using equipment (pole-mounted

ANPR cameras) for which no planning application had been made.

I request Smart Parking Ltd provides evidence that the correct Planning Applications

were submitted (and approved) in relation to the pole-mounted ANPR cameras and

that Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to

which this appeal relates.

 

 

 

19. The original PCN’s were sent way over the 14 day period an code of practise laid out by BPA

 

As I also stated in my initial appeal to Britannia parking but was ignored, Britannia parking has further breached the as code of practise laid out by the BPA by sending the PCN’s way over the 14 day period

 

 

20. Cause of Action estoppel

 

 

The Court is invited to take note that the Claimant has issued a further two claims, number T1887014 and number T1907471, against the Defendant with substantially identical particulars, for the same cause of action. The issuing of three separate claims, by the same Claimant and for essentially the same cause of action, is an abuse of the civil litigation process. The long-established case law in Henderson -v- Henderson [1843] 67 ER 313, and more recent authorities, establishes the principle that when a matter becomes the subject of litigation, the parties are required to advance their whole case. The Court is invited to consolidate the three claims to be determined together, and to apply appropriate sanctions against the Claimant.

 

This was mentioned in my original appeal to the operator, but was ignored and 2 further claims were submitted

 

 

In the matter of costs, the Defendant seeks:

18.   (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.

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

Statement of Truth

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.

Defendant’s signature:

Date:

Itachi2kg

Here are the pics as they didn't load
Any advice would be appreciated, I hope the defence looks okay 

Le_Kirk

Without having read it I can say that you do don't put pictures in defences; evidence comes later at the witness statement stage.  Is that the latest standard template defence?  If so you only need to edit paragraphs 2 & 3, the rest remain as was written by @Coupon-mad.  You only need to show us paragraphs that have been edited.

KeithP

Not that you need the address of the Claimant in there, but it's County Gates House not County Hates House.

Itachi2kg

Le_Kirk said:

Without having read it I can say that you do don't put pictures in defences; evidence comes later at the witness statement stage.  Is that the latest standard template defence?  If so you only need to edit paragraphs 2 & 3, the rest remain as was written by @Coupon-mad.  You only need to show us paragraphs that have been edited.

Thank you, I shall remove the photos
Yes this is the latest template from 10th October 2020, so the stuff I've added myself is irrelevant?

Umkomaas

Itachi2kg said:

Le_Kirk said:

Without having read it I can say that you do don't put pictures in defences; evidence comes later at the witness statement stage.  Is that the latest standard template defence?  If so you only need to edit paragraphs 2 & 3, the rest remain as was written by @Coupon-mad.  You only need to show us paragraphs that have been edited.

Thank you, I shall remove the photos
Yes this is the latest template from 10th October 2020, so the stuff I've added myself is irrelevant?

Just highlight what you've added. No need to regurgitate the whole defence as we don't know if you're adding it all because you've made changes here and there. Ordinarily we don't expect to see any changes in the main body, just your version of the case outline in paras 2 and 3. 

Le_Kirk

The stuff you have added to paragraphs 2 & 3 is relevant to you and your issue.  It should be written in line with what @Coupon-mad has written in the template.  It sets the scene for the judge, without writing War & Peace.  That will come later in the Witness Statement.  From paragraph 4 onwards it can be left as per the template.  I'm not suggesting that what you have added is irrelevant it just needs to fit the style of a defence, i.e. it is a series of legal and technical arguments.
As an example: -

I would like to add that I have parked in this car park for the past 12 years as I’m small local business owner in this area and I have purchased a ticket every single day. But since the beginning of 2020 (still on going)  there are major works due to a college being built opposite this car park, and before the time of the alleged parking breaches, this car park was not being monitored and was assumed to be closed by everyone in the area, workers of the area and visitors alike. The trades people working on the college build were using it to keep their building materials and one of the people said to me that it was okay to park here without a ticket (ticket machine was removed at this time) until the college is built as it won’t be monitored until then. But then without any notices to local business owners like myself or the public, also poor signage, Britannia Parking took control of the car park and started dishing multiple parking notices

this is written in the First Person whereas it should be the Third Person, plus none of it is a technical or legal argument.  Just keep it to something like "the defendant was prevented from purchasing a ticket on this/these occasion(s) as the PDT had been removed due to ongoing building works".

Itachi2kg

KeithP said:

Not that you need the address of the Claimant in there, but it's County Gates House not County Hates House.

Thank you, although the court letter reads "hates" must be a typo on their part