Defence template Wembley Park - review please.

KU8AKU8A Forumite
3 Posts
First Post
MoneySaving Newbie
Dear all,
Having now spent good few hours reading through this forum I feel I am none the wiser. 
I have received a Claim Form from CCBC Northampton dated 27 OCT.
I think I understand the step by step of what to do next, which is go on court's website and acknowledge the service.
Next is the defence. It seems I'm looking at the draft and not really understanding the language.
I have edited points 2 and 3 and left everything else as is. Have I missed the part where i should edit the amount which I am being chased for?

I have apparently overstayed the allowed time of 90(?) minutes stay in a car part that caters 4 shops and a restaurant. I believe this is not enough time to be allowed to stay.
Anyhow, I have ignored the previous correspondence and seems like I am being taken to court. 
Below is the proposed defence:

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 and was the driver at the time. 

 
 
 
3.  This car park services four shops and McDonald’s restaurant. 90 minutes is not enough time to be allowed to spend on the premises. Having visited with my partner and child to buy shoes, groceries and have a treat at the restaurant we have, according to the Claimant breached the rules of contract. 

 
 

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 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 

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 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.   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: 

16.   (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. 

17.   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: 




Any input welcome.
Apologies in advance for the 1000th post about it.
Have a nice day.

Replies

  • Le_KirkLe_Kirk Forumite
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    If this is the new standard defence template, you only need to show the changes to paragraphs 2 & 3.  Defences are written in the third person and should be limited to technical and legal arguments; the Witness Statement (which comes later) is the place to tell the story.  The thread you read where you found the defence template tells you what to do and you don't need to add the amount for which you are being chased.  Your details in paragraphs 3 are light.  You need to explain why you refute the claim as laid out in the particulars of claim on the claim form.
  • edited 30 October 2020 at 4:00PM
    RedxRedx Forumite
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    edited 30 October 2020 at 4:00PM
    Name the PPC involved

    Email a SAR to the DPO at the PPC involved

    You may be correct that the allowed 90 minutes isn't long enough , but that aspect may not assist you , a rule is a rule , like it or not

    Bear in mind that in light of the time being not enough , that is why you should have followed plan A , plus appealed and gone to Popla if they were available to you months ago

    As for your defence , only post the paragraphs you have altered , not all of it
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
  • D_P_DanceD_P_Dance Forumite
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    Nine times out of ten these tickets are scams, so consider complaining to your MP, sometimes it can lead to cancellation.,

    Parliament is well aware of the MO of these private parking companies, many of whom are former clampers. On 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, and hopefully this will become law shortly


    You never know how far you can go until you go too far.
  • KeithPKeithP Forumite
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    KU8A said:
    I have received a Claim Form from CCBC Northampton dated 27 OCT.

    With a Claim Issue Date of 27th October, you have until Monday 16th November to file an Acknowledgment of Service, but there is nothing to be gained by delaying it. 
    To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

    Having filed an AoS, you have until 4pm on Monday 30th November 2020 to file your Defence.
    That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.
    To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.
    Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.
  • Coupon-madCoupon-mad
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    Have I missed the part where i should edit the amount which I am being chased for?
    No, I changed the template last week, to simplify it.  At #3 I think you need to say that none of the occupants of the car had any idea that the driver could be 'fined' £100 and sued if the shopping and food exceeded an unknown time limit, so the Defendant believes the signage cannot possibly have ben conspicuous enough.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • KU8AKU8A Forumite
    3 Posts
    First Post
    MoneySaving Newbie
    Thank you all for replies. I will work on it.
  • KU8AKU8A Forumite
    3 Posts
    First Post
    MoneySaving Newbie
    Redx said:
    Name the PPC involved


    Email a SAR to the DPO at the PPC involved


    As for your defence , only post the paragraphs you have altered , not all of it.
    1. UK Parking Patrol Office Limited
    2. Will do.
    3. Noted.
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