County court claims form defence template

Redx

Thank you

Maybe so (I did not read the whole thread so assumed it was a BPA member due to it being mentioned , but I knew it wasn't in the BPA CoP for 2017 anyway) , but the paragraph above in a statement of truth mentions that the claimant failed to comply with the BPA CoP , even though they are not a member at the time or since that time and still aren't

It may be that the OP can mention it in any WS , but it's completely irrelevant in this defence , especially for a 3 years old event when it wasn't in any CoP

The OP should be honest and truthful and rebut the particulars of claim that apply to the participants at the time of the incident , so mentioning this will clearly prejudice their case , it's such a fundamental failure of facts I still cannot believe that it's in paragraph 3 above , it's utter balderdash !! Sorry to say. It has no reason at all to be in there , maybe the IPC CoP should be mentioned , if relevant (now we know it's Excel). I doubt that the BPA CoP should be mentioned at all in this case , even though it's in their latest 2020 CoP and likely to be in the Mhclg BSI based CoP. Neither is retrospective

Johnersh

Good luck trying to say the signs were odd or obscure if you've regularly parked in that car park and successfully did all that you had to previously.  Why include overly complex drivel that detracts from the main point? You can do a statement later. 

Also note the PCN was not incorrectly issued - the o/p's car was not paid for. Its entirely unsurprising that it was ticketed. 

The basis for the defence should include (or at least it would were it mine) the fact that you paid, have proven pre-action that it was you that paid (if indeed you have) and yet C has decided to press on with an unmeritorious claim when there has been no loss. A moments admin resolves the issue. C has raced into litigation inappropriately. A suitable admin fee of say £10 is more reasonable. 

They will say breach of contract wording and you will say £160 as a penalty for a keying error when you've paid is effectively an impermissible penalty clause not exempted by Beavis. 

Its not like they refunded your card with what you did pay - their system will also show paid for (newcar) was not on the ANPR log.  So they want to hang onto your payment and charge 100, an uplift and interest.  Do one. 

Coupon-mad

When it comes to WS & evidence stage (later) include the Watchdog article where Excel insisted they do manual checks to make sure small keying errors are not caused a PCN.  Invite the Judge to find that Excrl moved to the IPC and away from the BPA to get an easier ride in that race to the bottom.

Nosy

Thank you all for your help. I am following the guidance and have been using be newbies post alot, i didn't go back in to the defence template which is why i couldn't find the email. 

I agree, and i have removed the last paragraph regarding BPA CoP. Sorry but i am very new to this and i didn't check if Excel are part of BPA for some reason i assumed parking companies are. I will check to see if i can find 2017 IPC CoP and look for relevant info to use. 

Also most the time i am using my phone to reply on the forums so alot of US autocorrecting, but ofcourse my defence will be spell/grammar checked. 

I also agree that my defence should include  a charge of £160 being inappropriate for a typo error. Incase they do say that i was a regular user of the car park and the small print was OK all the other times.  

Redx

It's £100 for the typo error , the added charges are not allowed so not part of the charge to you

Any such charge is £100 for the PCN plus roughly the same in legal and Court fees

Take extreme notice of the posts by Johnnersh and Coupon mad above , you won't get better advice , not for free anyway

Post your latest paragraphs 2 & 3 below after doing more research , plus never assume , check , check , check

Nosy

Thank you @Redx. And @Johnersh i think this will also be the basis of my defence.
@Coupon-mad will search for this watchdog article. But is this is only to be used in WS stage, should i include in defence? 


I have attached IPC v6 CoP which was the version live at the time. I couldn't find anything related to number plate errors. But i have found a thread related to abuse of process where ppc have been known to add additional charges not in line with process. So may put something in regards to that and paste asap. 

Ferrybird

Google 'IPC Marking the lines' - there's a paragraph about wrong VRNs. 

You might also like to have a look at page 14 of the government Parking Code Enforcement Framework consultation....

Nosy

Coupon-mad said:

When it comes to WS & evidence stage (later) include the Watchdog article where Excel insisted they do manual checks to make sure small keying errors are not caused a PCN.  Invite the Judge to find that Excrl moved to the IPC and away from the BPA to get an easier ride in that race to the bottom.

Hey do you know where i can find this. I have found a watchdog video from 2010 about Excel Parking signs being very small but nothing about manual checks and keying errors. 

Nosy

I have pasted my full defence below. I have only changed Paragraph 2 and 3. I would really appreciate your feedback on anything i should change/ add.

Thank you

IN THE COUNTY COURT

Claim No.: xxxxxx

Between

Excel Parking Services Ltd

(Claimant) 

- and -  

xxxxxxxxxx                        

 (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 driver of the vehicle in question, but liability is denied as the parking charge of £3.20 was paid in full on 15th October 2017 using the ‘Ringo’ virtual service.

The defendant was a regular user of the car park and of the Ringo service. The defendants’ personal details, vehicle details, and payment details were saved on the Ringo database which included Vehicle Registration DV15DHD, Make, Model and Debit Card details including address.

The defendants number plate was changed by 15th October 2017, so this was the first day the defendant parked onsite with the new vehicle registration plate XS15ABC.

On 15th October 2017 the defendant used the car park as normal and paid for parking using the Ringo telephone service by calling the automated line and selecting options to pay. As the defendant’s details were saved the process to pay using Ringo became simpler as the telephone calls became shorter and requirement of pressing numbers on the keypad reduced.  The driver forgot to enter the new registration number and instead paid for parking the old vehicle DV15DHD.

3. The claimant has put forward an unmeritorious claim of £100 for a typo error which could have easily been resolved by a few minutes of Administration.

The defendant feels that the claimant is attempting to extort the defendant for a typo error as a charge of £100, increase and interest does not seem reasonable, it’s no surprise Excel Parking Services Ltd are no longer part of the BPA who have set out a maximum charge of £20 for such errors.

In Enforcing the Private parking Code of Practice, recently the Ministry of Housing, Communities & Local Government also found common views on their consultation and appeals charter of setting mistyping errors to 0-£20.

On the basis that the claimant did not reject the defendant’s payment of £3.20 but instead accepted the payment and started litigation seeking £100, uplift and interest the defendant invites the court to find that this exaggerated claim is dismissed.

 

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 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.

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:

 

 

 

Redx

If you read the latest BPA CoP , minor keying errors count as no charge whatsoever , the £20 is for major keying errors , so it depends on the circumstances