Claim form received, please I need guidance!

Coupon-mad

I would add to #3:

For the avoidance of doubt, the Defendant did not see the signs at all because they are sparsely placed and inconsipicuous.

pawless_patrol

Will do CM, thanks!

pawless_patrol

Hi Coupon-Mad and others, I've included the last suggestion. I've kept looking at other threads and frankly I don't know what else I could add. It does say what I wanted to convey. Just afraid of missing something. Would you say you are happy with this latest version? Posting entire defence now.

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. It is also admitted that the Defendant was the driver of the vehicle in question at the time of the alleged incident.

3.   The Defendant visited this retail carpark on the day of the alleged incident with her child to browse goods in one of the shops, buy groceries at the supermarket and have a meal at the restaurant, all of which are reasonable activities which are performed by most visitors to this retail park. This resulted in the Defendant unknowingly overstaying the allowed maximum stay of 90 minutes at the premises. For the avoidance of doubt, the Defendant did not see the signs at all because they are sparsely placed and inconspicuous.

4.   The maximum allowed time of 90 minutes is unusually short, and it is not enough time to reasonably perform shopping & leisure activities in this retail park without incurring in a breach to the terms and conditions (T&Cs) as set by the Claimant. Although it is understandable that the landowner has the right to decide for how long drivers are entitled to free parking on his/her land, this unusual short period should have enforced the need for the signage in place to display prominently the maximum time allocated for free parking and the amount to pay as parking charge, to avoid it being a trap to lure drivers into incurring parking charges. On the contrary, the signage in place is inconspicuous and does not comply with the International Parking Community (IPC) Code of Practice (CoP) requirements in terms of visibility and font size for a driver to be able to clearly read the T&Cs upon entering the site or parking. In consequence, signage in place fails to engage the attention of visitors and to make them aware of the fact that there is a limited time for free parking and the maximum time allowed as well as it fails to appropriately inform that there will be a parking charge in the event of breaching T&Cs.

5.   In addition, the statement on the sign describing how a driver is bound to abide by T&Cs “by entering or remaining on this land” is shown with the second smallest font of the T&Cs text, making it very difficult to spot and read from a parked car, and practically impossible from a car driving into the premises.

6.   The IPC CoP also requires their Accredited Operators to identify themselves as “the Creditor” on any sign intended to form the basis of contract between the creditor and the driver, which the Claimant fails to do.

7.   It is, therefore, denied that the Claimant's signage is sufficiently appropriate for creating a legally binding contract. The extent of the inappropriateness of the signage in place, together with the short maximum time allowed for free parking in a retail park with several shops, supermarket and restaurant is strongly suggestive of use of predatory and misleading tactics.

8.   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.

9.   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.

10.   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.  

11.   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').

12.   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

13.   Unlike 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.  

14.   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.

15.   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.  

16.   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.

17.   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.

18.   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.

19.   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.

20.   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:

21.   (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.

22.   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:

pawless_patrol

What do you think of point 7? Is it ok to make suggestions as such? Should I include more specific quotations from the IPC CoP?

Coupon-mad

Looks fine to me.  You can add more detail at WS stage. later on.

pawless_patrol

Thanks Coupon-Mad! 

pawless_patrol

Hi everyone, just a bit of update: after submitting my Defence in November, I received the DQ form which I completed (rejected mediation) and sent by email both to the court and BWLegal. Then I received a letter with an offer of a discount from bwlegal, together with a second letter which details the background, breach and response to my defence, of course calling it "copied and pasted", "nonsensical", "irrelevant" and "unreasonable" and responding to some of the arguments of my defence, followed by again an offer to settle (by paying of course). Also they attached copies of the signage, camera photos and PCN letter. What I don't understand is whether this has been sent only to me or also to the court (doesn't say).
In any case, I'm working on my WS now but I have a question: do I have to wait until I receive the hearing letter to submit my WS and evidence or has to be submitted earlier? They do say that as I have not provided any evidence, their client's position remains unchanged, although I suppose it could be a scare tactic.

KeithP

Doesn't that letter state "without prejudice - save as to costs"?
If so, then it definitely will not/should not have been sent to the court.
Nor should any reply you might want to send.
To be clear - don't bother replying.

pawless_patrol

Thanks KeithP.
Two separate letters, one says "without prejudice...", the other responds to my defence. I think they arrived in separate envelopes if I remember well.
I wasn't going to respond!

Coupon-mad

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