POFA compliance of NTK

Coupon-mad

It really is not hard to look at Schedule4 of the POFA and (assuming this was a postal NTK, with no windscreen notice first) compare paragraph 9 to your NTK...

poper

WIll do

Coupon-mad said:

It really is not hard to look at Schedule4 of the POFA and (assuming this was a postal NTK, with no windscreen notice first) compare paragraph 9 to your NTK...

poper

Your valuable feedback is required(from valuable members) on the attached Defense please.
I have used the standard defense template and also included additional points from the ParkingEye ANPR case which @Coupon-mad highlighted
Do I need to shorten my defense given it's almost 12 pages? 

                        

Redx

No defence ( note , no S in Defence ) should be that long. , I would think it should be one or both sides of a single A4 sheet of paper , not war and peace !! This isn't a murder trial

I would shorten it because few people if any will read 12 pages , never mind a judge !! Read what Bargepole posted recently about a Defence , less is more , narrow the legal issues , address the POC , explain the core facts

Coupon-mad

The global sum is NOT including interest, so is it £170 or what?  

Here is a shorter version, do not attach the Southampton judgment as cases are not commonly being struck out now:

IN THE COUNTY COURT

Claim No.: XXXXXX

Between

CIVIL ENFORCEMENT LIMITED
(Claimant) 
- and -   
                                  XXXXXXXXX                                  
 (Defendant)

 

 ___________________ 
DEFENCE
_____________________

1.      The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.    It is denied that any driver of the car would have breached any term, had those terms been clearly advertised, therefore any contractual agreement to pay a parking charge is denied.   Further, keeper liability is denied, in that a compliant Notice to Keeper (‘NTK’) was not properly served in strict accordance with paragraph 9 of the of Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA) and due to the lack of adequate notice of the parking charge and lack of any 'relevant contract or obligation'.

 Preliminary matter: exaggerated and unrecoverable quantum and poorly pleaded claim

2.    It is an abuse of process for a Claimant to issue an inflated claim for a sum which it is not entitled to recover.  In relation to parking on private land, it is settled law that for any penalty to escape being struck out under the penalty rule, it must be set at a level which already includes recovery of the costs of operating the scheme.  However, this Claimant routinely claims (as in this case) a global sum of £170 per alleged PCN.  The Notice to Keeper shows that this was not the 'parking charge and the enhanced sum is a penalty, far exceeding the charge in the ParkingEye Ltd v Beavis [2015] UKSC 67 case and falling foul of the binding authority in ParkingEye Ltd v Somerfield Stores [2012] EWCA Civ 1338.  In the 2012 case, the Court of Appeal held that £135 would be an unrecoverable penalty but a claim for the PCN itself would not [ref: para 419].   Thereafter, ParkingEye quietly dropped their ‘PCN plus indemnity costs’ double recovery business model and pursued £85 in the Beavis case, where it was determined by the Supreme Court that a significant justification for that private PCN was that it already included all operational costs [ref: paragraphs 98, 193 and 198].

3.   The Claimant’s notices/demands vaguely allude to unidentified sums being claimed ‘on an indemnity basis’.  Such imprecise terms 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 Consumer Rights Act 2015 ('the CRA').  This claim is unfair from the outset; the (Competition and Markets Authority) Government Guidance on the CRA clarifies under ‘Disproportionate financial sanctions’ and ‘Indemnities against risk’:

[https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf ]

‘‘Other kinds of penal provisions which may be unfair are clauses saying that the business can:

· claim all its costs and expenses, not just its net costs resulting directly from the breach;

· claim both its costs and its loss of profit where this would lead to being compensated twice over for the same loss; and

· claim its legal costs on an ‘indemnity’ basis, that is all costs, not just costs reasonably incurred. The words ‘indemnity’ and ‘indemnify’ are also objectionable as legal jargon – see the section on transparency in part 2 of the guidance...’’ (p87 - 5.14.3);

 ‘‘Terms under which the trader must be ‘indemnified’ for costs which could arise through no fault of the consumer are open to comparable objections, particularly where the business could itself be at fault. The word ‘indemnify’ itself is legal jargon which, if understood at all by a consumer, is liable to be taken as a threat to pass on legal and other costs incurred without regard to reasonableness.’’ (p119 - 5.31.7).

 

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 also exceeds the maximum amount which can be recovered from a registered keeper as prescribed in Schedule 4, Section 4(5) of the POFA.  It is worth noting that in the Beavis case, even though the driver was known, the Supreme Court considered and referred more than once to the POFA because it was only right that the intentions of Parliament regarding private PCNs were considered.

5.  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 clause 'allowing' added costs/damages.  The British Parking Association CoP is a self-serving document, written in the parking firms’ interests.  Further, the ‘admin fee’ model was reportedly the proud invention of a member of the BPA Board, Gary Osner, owner of ZZPS and 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 in the public domain since 2018: https://parkmaven.com/news/gary-osner-zzps-interview ''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.''  

6.  The Defendant avers that it is clear that the competing ‘race to the bottom’ ATAs are sanctioning double recovery and the conflicting CoPs have failed consumers so badly that the Secretary of State is overseeing a new regulatory Code, following the enactment of the Parking (Code of Practice) Act 2019.   In 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.''  

 

7.  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 stylised Particulars of Claim are embarrassing and incoherent, lacking specificity re the status of the contracting parties and failing to detail any contract, 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 claim and even the exaggerated quantum has fluctuated, changing with each debt demand and/or letter of claim over the preceding months.

 

The facts - lack of prominently displayed terms and obligations: no agreed contract

8.  It is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct.  Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms.  Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

9.  The Defendant would like to state that:

(i) The driver parked the car to visit the church along with their child for a weekly playgroup session and checked-in the church register at the church entrance. The car was parked at the premises for the child’s playgroup session duration only and thus for a legitimate reason.

(ii) Parking restrictions appear to have been introduced by the Claimant at the premises around July/August 2019.  It now transpires that to avoid a Parking Charge, visitors were expected to know to input their Vehicle Registration Number on an iPad somewhere.  This was far from clearly signed and the purported keypad was nowhere to be seen. The keypad machine to register the car number was not clearly visible, not in a well lit area and with no signage.

(iii)  The BPA CoP states at 18.11: ''Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes.'' With a new parking system in place, there was also no notice/signage in place where drivers check-in at the church entrance and no new terms were mentioned by the Church staff permitting entrance to the playgroup. 

(iv) It is contended that the Claimant failed to alert regular local visitors to an onerous change.  The Claimant is put to strict proof, with the bar being set by Denning LJ in J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.''

(v) The Defendant appealed on the basis of being a legitimate visitor to the church, inadequate signage and that the new keypad to 'register' was positively hidden and not in a conspicuous area.  The Defendant’s appeal was dismissed by the Claimant, however, none of the points raised by the Defendant were refuted by the Claimant in their response, which was a template. The Defendant views this as a deliberate attempt by the Claimant to extract money by means of levying a tainted private PCN and harassing through Debt Collector notices, Solicitor notices and now court proceedings.

10.  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 (paras 6, 10, 14 and 18) of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was agreed by the driver.

 

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

11.  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 struck out as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  Their decision was specific to that ‘unique’ set of facts: the legitimate interest argued, the car park location, and the ‘brief and clear’ signs with the parking charge itself in bold and the largest text.  The unintended consequence is that, rather than persuade courts considering other cases that all private PCNs are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and prominent signs) set a high bar that this Claimant has failed to reach.  This Claimant has failed to plead their case or to set out their terms or construct their charges in the same way as in Beavis and the penalty rule remains firmly engaged. 

 

12.   Without the Beavis case to prop it up, no legitimate interest 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.  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.  This Claim falls foul of all of those.

13.  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, 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''.   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.  The same is true in this case.

14.  The Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence of a chain of authority flowing from the Landowner or Lessor 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 particular Claimant (Companies House lists their company number as 05645677) to issue private PCNs or what the land enforcement boundary and start/expiry dates are/were, and whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to issue PCNs ‘on behalf of’ the landowner on an agency basis.  

15.   In summary, the Claimant's Particulars disclose no legal basis for the sum claimed and the abuse of process taints this Claim.  The Claimant knew, or should have known, that an exaggerated claim where the alleged ‘debt’ exceeds £100 (BPA CoP ceiling) is disallowed under the CPRs, the Beavis case, the POFA and the CRA.  The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim and grant the Defendant's costs in full.

 

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:

                       

poper

@Coupon-mad, I will remove the interest component if thats what I need to do?
I honestly wasn't expecting someone here to shorten the defence for me. You guys are selfless heroes. <<I bow in respect>>

1505grandad

Apologies if being too pedantic:-

Para 9(ii) states:-

"Parking restrictions appear to have been introduced by the Claimant at the premises around July/August 2019."

The actual date of the parking event does not appear to have been mentioned in this thread so just checking that the correct BPA CoP has been quoted in 9(iii):-

V6 from Oct 2015 (which has been quoted in D at 9(iii):-

18.11 Where there is any change in the terms and conditions that

materially affects the motorist then you should make these

clear on your signage. Where such changes impose liability

where none previously existed then you should consider

a grace period to allow regular visitors to the site to adjust

and familiarise themselves with the changes.

V7 from Jan 2018 - Jan 2020 (which seems to be relevant if parking event in 2019 as per changes mentioned):-

18.10 Where there is a change in the terms and conditions that

materially affects the motorist then you must make these

terms and conditions clear on your signage. Where such

changes impose liability where none previously existed then

you must consider a transition to allow regular visitors to the

site to adjust and familiarise themselves with the changes.

Best practice would be the installation of additional/

temporary signage at the entrance and throughout the site

making it clear that new terms and conditions apply. This will

ensure such that regular visitors who may be familiar with

the previous terms become aware of the new ones. 

poper

1505grandad said:

The actual date of the parking event does not appear to have been mentioned in this thread so just checking that the correct BPA CoP has been quoted in 9(iii):-

You are not pedantic @1505grandad.The parking event occured in 2019.
I need to quote from BPA V7 and not V6 as you advise.
Anymore feedback friends?

Also, I was wondering if at all it was advisable to file a counter-claim? Or, is it a simple NO.
The amount of time we have all invested in this bothers me 

Redx

Any counter claim has to be filed with the defence , not for the time spent but for a dpa breach or something legally tangible and possible

If you were to win in court , you have 6 years to decide if you wish to file an MCOL claim of your own , for an amount that is achievable for some legal topic that may win

Coupon-mad

poper said:
@Coupon-mad, I will remove the interest component if thats what I need to do?
I honestly wasn't expecting someone here to shorten the defence for me. You guys are selfless heroes. <<I bow in respect>>.

No problem; I am well aware that I need to update the template defence and it's on my to-do list. 

So helping to chop parts out from what was basically my template, is good practice for me to come up with a new template. 

You don't need the DJ Grand decision as all the courts know about it and you can address the point about added fake 'debt recovery/admin' further at witness statement stage.