Claim form received. Help needed

Snakes_Belly

You mentioned that the driver was not aware that it was a paid retail car park. That suggests that the signage was inconspicuous. Where was it? There have been some hot spots that frequently appear on this forum. 

Signage is important because it states the terms and conditions that create the contract.  

aso2007

Snakes_Belly said:

You mentioned that the driver was not aware that it was a paid retail car park. That suggests that the signage was inconspicuous. Where was it? There have been some hot spots that frequently appear on this forum. 

Signage is important because it states the terms and conditions that create the contract.  

I checked after the incident and there was signage at the entrance and in other parts of the car park. My wife assumed it was a free car park as most retail car parks give three hours of free parking.

aso2007

30th July I sent an email to ELMS legal asking them the following:

Your client failed to provide the following:

- All letters/emails sent and received.

- I require that you advise me as to what legal authority you have to add an amount of £60 to your claim, knowing that this is Abuse of Process.

- Photographs of the signs and a site plan.

- Evidence of your client's legal capacity in accordance with its Code of Practice Para B 1.1.

- Is your claim against me as a keeper or a driver?

Their reply is attached.

I appreciate any comments about their reply.

Snakes_Belly

Elms mention signage and site plan. Could you please post the images that they sent with the letter.

Umkomaas

aso2007 said:

30th July I sent an email to ELMS legal asking them the following:

Your client failed to provide the following:

- All letters/emails sent and received.

- I require that you advise me as to what legal authority you have to add an amount of £60 to your claim, knowing that this is Abuse of Process.

- Photographs of the signs and a site plan.

- Evidence of your client's legal capacity in accordance with its Code of Practice Para B 1.1.

- Is your claim against me as a keeper or a driver?

Their reply is attached.

I appreciate any comments about their reply.

Totally predictable - and provides no leverage for you. 

aso2007

Snakes_Belly said:

Elms mention signage and site plan. Could you please post the images that they sent with the letter.

Signage and site plan attached.
Thanks

Umkomaas

How does a motorist work through all that minuscule wording, with doubtless differences between signs across the whole site, plus the instructions on the PDT machine before deciding to stay or go?  By the time they've parked up and even started to read and digest the detail, they've already accrued a £100 penalty, because they've not stumped up or got the flock out of there within 5 minutes.  Crackers!

Avoid all private parking sites where possible - more and more are set up to trap the motorist, aided and abetted by the PPCs' respective ATAs and their partisan Codes of Practice.

aso2007

My defence letter is due by 23rd November. As suggested in the newbies by CouponMad I only changed 2 and 3 and kept the rest. I then adjusted the numbers. 
Any feedback is much appreciated:

IN THE COUNTY COURT

Claim No.: ***********

Between

Excel Parking services limited 

(Claimant) 

- and -  

************************                        

 (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.

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. It is also admitted that the Defendant was not the driver of the vehicle in question at the time of the alleged incident.

3.       The defendant first heard about this parking charge after receiving ‘demand for payment letter’ dated 14/05/2020. Upon receiving all data, it was clear to the defendant that the claimant claimed that an NTK was sent on 30/03/2020 and a reminder was sent on 28/04/2020. Defendant confirms that such letters were never received. It is not unreasonable to assume that the letter was either improperly managed by the claimant or failed to be delivered by the postal system especially during the peak of lockdown.

4.       Defendant felt harassed by the bombardment of debt recovery template letters. The defendant tried to resolve the matter and contacted the claimant by email, some of them were ignored.

5.       The defendant submitted the Subject Access Request SAR to obtain all information that the claimant holds on the defendant. The claimant is required to respond within 30 days of this request. The request was sent on 04/06/2020 and a reminder was sent on 22/06/2020. The claimant did not respond until 22/07/2020. This is a direct violation of the data protection act of which the claimant claims they are compliant.

6.1      Signage is on the passenger side on entry and does not engage drivers.

6.2      Signage is at right angles to car on entry, so it would unsafe for driver to turn head 90 degrees to read a sign.

6.3      The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

 

7.  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.

8.       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.

9.       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.  

10.  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').

11.  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 statutory code of practice being prepared, given that the two Trade Bodies have failed to properly govern this industry.

 

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

12.       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.  

13.       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.

14.   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.  

15.   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.

16.       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 agreed.

17.   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.

18.   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:

19.   (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.

20.   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:

 

 

Redx

Seems to me that more than 2 & 3 were altered , 5 is definitely your own work too !!

aso2007

Redx said:

Seems to me that more than 2 & 3 were altered , 5 is definitely your own work too !!

I meant i changed 2 and 3 from the original and readjusted the numbers.
So 2, 3, 4, 5, 6.1, 6.2, and 6.3 are mine.