Defence - UK Parking Patrol Office Limited

Mundaneo

Hi All, 

I'd like to start by saying how useful this forum has been. Hopefully someone can help.

Background
A PCN from 2015 has come back to haunt me and I have received a County Court Claim. 
I used the MCOL service to submit an AOS and say I will defend all the claim. I also submitted and received a Subject Access Request from UK Parking Patrol.

Today
The SAR included photos of my car at the time, parked in the car park without a permit. I was so sure I had a permit at all times, hence why I ignored this for so long. I was under the impression they just didn't see it, so defence would be something about not showing all dashboard in photo evidence etc. 
The car park was below a friends flat  and I always used their permit in order to park there when visiting, this time I clearly didn't. 

Defence
Here's where I'm stuck, my defence was always "I had a permit". I can use lines like "terms and conditions were not visible due to insufficient lighting"etc but I can't provide anything specific that stopped me displaying a permit. 

This (below) is what I currently have in section 2 and 3 using the template from here. - https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1

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 at the time.

 

3.       At the point of entry, the entrance terms and conditions sign is not visible or readable due to insufficient lighting. The Defendant did not see any terms and conditions during their stay at the residential car park. The Defendant was visiting a friend who was a tenant in the building. The tenant in question denies accepting any contract with this party, as does the Defendant.

Is this enough of a defence? 
What other specifics could I write about? 

Thanks in advance,
Charlie

KeithP

Hello and welcome.

What is the Issue Date on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.


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Mundaneo

Thanks for the quick reply. I've sent the request to change my username.

The Issue Date was 26/10/2020
AOS was 01/11/2020

KeithP

xxxxxxx1 said:

The Issue Date was 26/10/2020
AOS was 01/11/2020

With a Claim Issue Date of 26th October, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 30th November 2020 to file your Defence.

That's nearly three 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 at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Mundaneo

Hey, I've received an email from BW Legal. I'm assuming this is normal proceedure but it looks pretty menacing...
Is this expected? Am I still plowing on ahead with my defence? 

Thank you for your email dated 28 October 2020.

 

You mention debt pre-action protocol. We sent a letter of claim fully compliant with the debt pre-action protocol on 10 September 2020 allowing you until 15 October 2020 to respond.

 

No response was received and therefore, a County Court Claim was issued on 26 October 2020 and deemed served 02 November 2020. We have not been notified by the court of any issued regarding service of the claim form.

 

As a claim has been issued, if no contact is received within the timeframe specified on the claim in regards to the outstanding balance of £****, we will be at liberty to enter a County Court Judgment (CCJ) against you. In order to avoid this you can call us on 0113 323 1784 within 14 days from the date of this email to set up an affordable payment arrangement which is suitable for you.

 

If you do not wish to set up a payment arrangement in regards to the above balance, please respond to the claim form accordingly.

 

We note that you have raised a Subject Access Request (SAR) with our client. It is important to note that a SAR does not affect the validity of our client’s claim meaning that our client has an overriding legitimate interest to recover the sums due to them. As such, your account will not be suspended from further legal action unless we are instructed to do so by our client.

 

We look forward to hearing from you.

 

Yours Sincerely

Coupon-mad

Makes no difference.

'Plowing' ?  Ouch - we are not American but maybe your spellchecker is?!

Mundaneo

Hey All, 
I'd greatly appreciate any feedback on the defence I'll be sending tomorrow. Any red flags or issues in here? As it wasn't my flat am I ok referring my friend's lease? 
Thanks in advance.

Replaced any specific info with 'XXXX'

IN THE COUNTY COURT

Claim No.: XXXXXXX

 

Between

UK Parking Patrol Office Limited 

(Claimant) 

- and -  

XXXXXX

 (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 registered keeper of the vehicle in question but liability is denied. It is also admitted that the Defendant was the driver at the time.

 

3. At the point of entry, the entrance terms and conditions sign is not visible or readable due to insufficient lighting. The Defendant did not see any terms and conditions during their stay at the residential car park. The Defendant was visiting a friend who was a tenant in the building. The tenant in question denies accepting any contract with this party, as does the Defendant.

4. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on XXXXXX. However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms of parking were, or in what way they are alleged to have been breached. 

5. The car parking area contains allocated parking spaces demised to some residents, and a general area for residents who do not have an allocated space. The defendant was parked in a friends’ allocated space. That friend held legal title under the terms of a lease, to their apartment at XXXXXXXXX. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

5.1. There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

6.  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.

7. 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.

8. 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.  

9. 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').

10. 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

11. 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.  

12. 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.

13. 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.  

14. 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.

15. 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.

16. 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.

17. 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:

18. (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.

19. 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:

Coupon-mad

Looks fine to me, good work.

Mundaneo

Just thought I'd update on here. After getting a court date for late April and plenty of offers to reduce the amount owed... I just got a Notice of Discontinuation. So chuffed.
Thanks to @Coupon-mad and @KeithP for your help. I couldn't and probably wouldn't have done this with the info on this forum so thanks to everyone involved.

Redx

Well done , Ukppo lose yet another one after a forum assisted defence !! 

So after b w legal telling you their client had a good case , they both caved in yet again !!

Another one bites the dust !!

Le_Kirk

Well done, we'll count a discontinuance as a win!