CCJ - Unsure If I can fight it!

Coupon-mad

Nope but we all remember Olive’s long thread, go find that!  No link.  It’s very current!

When I said ‘surely you found shedloads of set aside threads’ I didn’t mean just the 2 old ones linked in the NEWBIES thread!  I meant get on a laptop and read the thread titles on the first 20 pages or so and click on any that are about a CCJ.

Us regulars read every single post every single day here, in our own time, and the best thing you can do is something similar - but far easier - of coming here every other day and just read any CCJ titled threads and bookmark them if you find them useful.

Olive’s thread is so long you’ll need to sit down with a cup of tea to read it from start to finish but she started with no idea what to do whatsoever and insisting she needed to throw money at a solicitor, yet she has since handled 2 set aside applications.

We are not linking it. The thread is so recent that would be unfair on you and stop you using the forum properly for research, which you will need to do at hearing stage. You will find it when you come off this thread and the NEWBIES thread and read all the others from people who’ve recently been there, done that and shown what they submitted.

BangeF2

ok im just getting my head around this again now. so now that all has been set aside, i am back to square one and need to focus on defending the PCNS.  with the PCNs, im not sure how to defend against them. Yes i didnt see the signs and they werent clear but it was so long ago I actually dont remember. 

It may be that i have to pay the particulars and settle it in this way? What would you say about this? I can argue that there are multiple PCNs over the course of a few months but i dont believe i would ever ignore a yellow PCN notice. Im sure i would have paid it or dealt with it at the time i got it so unsure how to defend really.  

Coupon-mad

You have you haven’t read any threads yet have you?  Nor read the template defence, top of the forum.  You wouldn’t be asking this and suggesting you might have to pay to make it go away(?!) if you’d trawled back to page 20 or 30 and read all the CCJ threads you find.

Why not come back afresh after the weekend and after you’ve explored the forum threads on a laptop, not relying on links provided by us, but finding relevant threads for yourself.

You will return confident, as Olive did.

Le_Kirk

The thread referred to by @Coupon-mad was started by @Olive_j

BangeF2

ok i found the defence template as follows. Is the correct one to use after a set aside has been granted and a defence for the PCN needs to be put in place? 

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (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 of the vehicle in question but liability is denied. 

^^^ CHANGE THE ABOVE IF NOT TRUE, OBVIOUSLY! ^^^ 

(Also, continue here in your words, by either also admitting to being the driver, or hirer/lessee, if you were.   Alternatively, deny being the driver in #2, but ONLY IF TRUE.  If you DON'T KNOW, say so).

 

3.  [REMOVE AND REPLACE THESE NOTES! EXPLAIN WHAT YOU KNOW IN YOUR OWN WORDS]  

If you are admitting to driving, you will be talking about what the Defendant saw or didn’t see, in terms of the signs, whether it was dark, whether the signs were obscured by a tree, really small, broken or not lit? etc. Or maybe the signs about inputting your VRM were not conspicuous, or maybe this was a fluttering ticket situation, or maybe the machine made an error in your VRM (never assume the driver made a typo, unless clearly the driver, say, input their other car VRM or something).

If you are only the registered keeper and were not driving, you will be saying when you first heard about this parking charge (by post, months later?) and maybe how harassed you felt by the bombardment of ‘debt recovery’ letters, and you might be taking the point that the Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

If this is a residential car park where you live, you will be talking about your rights in your lease (as tenant or as leasehold owner), denying accepting any contract with this third party.

4.  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.

5.       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.

6.       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.  

7.  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').

8.  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

9.       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.  

10.       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.

11.   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.  

12.   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.

13.       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.

14.   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.

15.   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.

16.  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:

17.   (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:

my understanding is that i only need to change points 2 and 3. i dont remember i was the driver so will include this as there was two of us on the insurance using the car. 

Question: In the SAR, the claimant has clearly marked on a road map where the signs were placed at the time. I didnt see them myself and did not know that they applied to the entire area. Theres a bit of payment i parked on instead of an actual bay etc which they have used in their evidence. Now looking back isnt the signage only for the bay areas or for the entire road, pavement etc of that area? im sure this is not relevant but i wonder if this is something i can use to defend? 

I know this quite late in the day. My defence is due in on Monday 20th and I have the weekend to get the defence to the courts. 

In the SAR, There are also 9 different tickets been given and sent to the wrong address (leading to the CCJ) which were issues around october to december 2017.  Do I need to refer to them each individually within point 2 and 3? 

BangeF2

@Coupon-mad
@Le_Kirk
@Jenni_D

Also will the WS be what i've basically done after the CCJ was granted set aside and the steps i took to file my defence? Im confused as to what the WS will need to include this time around? Or will it be that the WS includes what my version of why i parked there , didnt seee the signs etc and didnt think I was parking anywhere i wasn't allowed? 

Coupon-mad

Yes that's the defence but you REALLY need to read some post set aside threads to understand not to just send a defence, even though that's all the Judge asked for.  This is done every week here.

Come back when you've read the CCJ threads on the first 20 or 30 pages like I said already.

BangeF2

Or will it be that now we are back at square one, I look at the claim form and look at the particulars of the claim and share my thoughts in the WS about the particulars of the claim and identify what CPR is relevant to dismiss the particular of the claim? 

BangeF2

Coupon-mad said:

Yes that's the defence but you REALLY need to read some post set aside threads to understand not to just send a defence, even though that's all the Judge asked for.  This is done every week here.

Come back when you've read the CCJ threads on the first 20 or 30 pages like I said already.

yep ive had a ready and notice that I need to send:

WS 

Defence 

Evidence to back up the defence. 

and put this together in a pdf bundle before sending it off. 

Is that correct? 

BangeF2

currently also reading about @jrhys bundle