Court Claim - Draft Defence Advice please

pat1987uk

Hi all,
First time (and hopefully last) here. Our lovely friends at BWLEGAL are taking me to court for £245.54 (£100 fine, £60 'debt recovery cost', £10.54 interest, £25 court fees and £50 solicitors cost) for contractual breach. I've tried reading as much as I can off the great forum. Claim Issued 02 Nov 2020, I've completed everything as per the forum, just been on MCOL and completed AOS so now writing a defence. I've written one below. I have photos of signs and the car park layout, so will reference them were applicable. I'm hoping this will be enough, any advice appreciated. Thanks guys.

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DEFENCE

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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. The Claim relates to an unexpected Parking Charge Notice (’PCN’) arising from the drivers alleged breach of contract, when parking at LG car park on xx/xx/xxxx.

2.1 The LG (restaurant) and The LG (car park) are separately owned properties and it is unclear and confusing to distinguish the two properties when arriving.

2.2 The defendant was unaware that a pay and display parking ticket was required due to the poorly placed and poorly lit signage around the car park.

2.3 The signage has been placed on gates, which cannot be seen when open and placed behind structures so are not noticeable.

2.4 The signage is not lit within the car park so cannot be seen when entering or once entered. The defendant entered the car park at approximately 21.00hrs when the light was low.

2.5 The car park is primarily used for LG restaurant next door to the LG car park. The route for which customers would take when entering or leaving the restaurant from this car park has no noticeable signage especially in low light and without adequate light for the signs.

2.6 The ‘Terms & Conditions’ signage is difficult to read, with varying font sizes and colour and is therefore illegible from a vehicle and on foot.

3. 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.

4. 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.

5. 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.

6. 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').

7. 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

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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:

15. (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.

16. 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:

KeithP

pat1987uk said:

Claim Issued 02 Nov 2020, I've completed everything as per the forum, just been on MCOL and completed AOS so now writing a defence.

With a Claim Issue Date of 2nd November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 7th December 2020 to file your Defence.

That's four weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Coupon-mad

Defence looks fine to me.  This comes later, at WS & evidence stage:

 I have photos of signs and the car park layout, so will reference them were applicable.

1505grandad

Who is the claimant?

Just a thought  -  as there is no mention of "passengers":-

"2.2 The (defendant) was unaware that a pay and display parking ticket ............"

should it be (driver) was unaware..........

pat1987uk

Thanks for all your comments, much appreciated. I sent the defence off a while back and received the acknowledge from the court, all within the time frame. BWLegal sent me another letter telling me my defence was rubbish and nonsense. No surprise there.
I haven't received a court date yet, but I'm getting all the evidence sorted and writing the witness statement to be ahead of the game. One question, regarding the ParkingEye v. Beavis para 98, 193 and 198. I'm probably being silly, but can someone confirm the text required to be copied/pasted? I just want to get this correct. 
Thanks

Umkomaas

One question, regarding the ParkingEye v. Beavis para 98, 193 and 198. I'm probably being silly, but can someone confirm the text required to be copied/pasted?

Have you accessed those paragraphs from the judgment?  Just copy and paste each one and build into your WS (don't just use links and expect a busy Judge to be scratching around the net to read them). 

pat1987uk

Thanks for your reply. I think I have the correct judgement, wasn't there an appeal? I just cant work out which part of the judgement is para 98, 193 and 198. lol.

nosferatu1001

Supreme court so no, of course no further appeal
You want the complete judgment which is split into numbered para
https://www.supremecourt.uk/cases/docs/uksc-2013-0280-judgment.pdf