PPS delayed payment on entry advice

Coupon-mad

Because no-one can make payment 'immediately on entry' that term is void for impossibility. 

Every driver would breach it because the machine is not pay-on-entry at the entrance, from the car seat.

Devonisheaven11

Thank you for your ongoing help.

Date of issue: 10th November 

Date of Aos: 26th November 

The Aos has been submitted on time and a draft defence is attached below. Also attached is an image of the PPS sign located at the car park for reference.

In this case, the defendant was issued a PCN by Premier Parking Solutions Limited for delayed payment on entry on the 3/1/2020. The defendant paid the full amount however this has been deemed as 'delayed'. BW legal have also been involved and added additional fake charges. 

The defendant has written a short paragraph at the beginning of the facts section and would really appreciate any feedback. Facts from the defence templates have also been included however the defendant is unsure how many to include and which ones best suit this event.

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Premier Parking Solutions Limited

- and -  

……………….

____________________

DEFENCE

____________________

 

The facts as known to the Defendant:

 1.     It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.  

2.     The Claimant’s case has been based on a supposed delayed payment on entry recorded on the 03/01/2020 at Bovisand car parks. The defendant paid in full for the time spent at the car park and was shocked to hear that this event was even a case to be considered. The Claimant had not stated a set time that the payment needs to be made, therefore making the bases of their case invalid. The defendant did not knowingly accept being punished for 'paying late’. The Claimant’s signs include vague terms in a mixture of small fonts, much too small to be made out when purchasing the ticket.

3.     The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

The points below are within the scope of the Defendant’s own knowledge and honest belief. Whilst parts of this defence may be familiar to the Claimant and/or their legal representatives, it would not be right for a litigant-in-person to be criticised for using all relevant resources available.  It is noted in any case, that these Claimants use third party pre-written templates as standard.  This statement was prepared by the Defendant specifically for this matter and unlike the Claimant’s case, it deals properly and individually with the facts, the alleged contract, and the quantum.  The contents of this defence represent hours of research by the Defendant, in order to grasp some knowledge of alien concepts of law, codes of practice and procedures relating to the specific area of Parking Charge Notices (‘private PCNs’).

 4.     In relation to parking on private land, it is settled law that for any penalty to escape being struck out under the penalty rule, it must be set at a level which already includes recovery of the costs of operating the scheme.  However, this Claimant routinely claims (as in this case) a global sum of £160 per alleged PCN.  This figure is a penalty, far exceeding the charge in the ParkingEye Ltd v Beavis [2015] UKSC 67 case and falling foul of the binding authority in ParkingEye Ltd v Somerfield Stores [2012] EWCA Civ 1338.  In the 2012 case, the Court of Appeal held that £135 would be an unrecoverable penalty but a claim for the PCN itself would not [ref: para 419].   Thereafter, ParkingEye quietly dropped their ‘PCN plus indemnity costs’ double recovery business model and pursued £85 in the Beavis case, where it was determined by the Supreme Court that a significant justification for that private PCN was that it already included all operational costs [ref: paragraphs 98, 193 and 198]. 

 5.     It is an abuse of process for a Claimant to issue an inflated claim for a sum which it is not entitled to recover.  The above authorities could not be clearer.  Parking firms must choose between a ‘Beavis-level’ charge calculation or loss-based damages.  A parking firm cannot seek to plead their claim in both but this Claimant routinely does - and has done in this case. 

 6.     The Claimant’s notices/demands vaguely allude to unidentified sums being claimed ‘on an indemnity basis’.  Such imprecise terms would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA.  Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas. Recent examples include multiple Orders from District Judge Fay Wright sitting at Skipton County Court, with similar Orders seen in the public domain from Deputy District Judge Josephs sitting at Warwick County Court, District Judge Taylor at the Isle of Wight and Deputy District Judge Colquhoun sitting at Luton County court in March 2020.   All were summarily struck out, solely due to parking firms falsely adding £60 to inflate the claim. 

 7.     This matter was recently determined by District Judge Grand, sitting at Southampton County Court on 11 November 2019, where the Claimants sought to have multiple strike out Orders set aside. The application was dismissed, and a copy of the Approved Judgment is appended to this defence.  No appeal was made in that case, where the learned Judge found that £160 parking claims represented an abuse of process that ‘tainted’ each case.  It was not in the public interest for courts to allow exaggerated claims to proceed and merely disallow the added £60 at trial on a case-by-case basis.  To continue to do so would restrict the proper protections only to those relatively few consumers robust enough to reach hearing stage.

 8.     That hearing was attended by BW Legal’s barrister, acting for an AOS member of the British Parking Association (‘the BPA’) but in February 2020, Skipton County Court refused a similar application from a barrister for Excel Parking Services Ltd (members of the rival Trade Body, the International Parking Community -‘the IPC’).  Whilst these cases are not precedents, it is only right that Defendants should use them and expect no less protection and proactive sanctions against parking firms whose claims happen to fall to other courts.

 9.     In this situation, it ought not to be left to hardy individuals to raise this issue time and again at trial, yet other disputing consumers are being so intimidated by the threats in a barrage of debt demands and the possibility of facing court, that they pay a legally unrecoverable sum to make it go away.  Such conduct has no proper function in the recovery of alleged consumer debt.  To use the words of HHJ Chambers QC [ref: Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) - https://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html ]:

‘‘Whatever the strength of the suggestion that the courts should only be a last resort, there can be no excuse for conduct of which the sole purpose must have been to make [...] life so difficult that they would come to heel.  In a society that is otherwise so sensitive of a consumer's position, this is surely conduct that should not be countenanced’’

 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 costs.  The sum also exceeds the maximum amount which can be recovered from a registered keeper as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’).  It is worth noting that in the Beavis case, even though the driver was known, the Supreme Court considered and referred more than once to the POFA because it was only right that the intentions of Parliament regarding private PCNs were considered.

 11.  Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, it is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct.  Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms.  Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

 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 Schedule 2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was agreed by the driver.

In the matter of costs, the Defendant seeks:

13.  (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 typical Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases, by this Claimant.  Pursuant to CPR 46.5, whilst indemnity costs cannot exceed two thirds of the applicable rate if using legal representation, the Defendant notes that LiP costs are not necessarily capped at £19 ph.  It is noted that a Defendant may ask in their Summary Costs Assessment for the court to award their usual hourly rate for the many hours spent on this case [ref: Spencer & anor v Paul Jones Financial Services Ltd].

 14.  In summary, the Claimant's Particulars disclose no legal basis for the sum claimed and the abuse of process taints this Claim.  The Claimant knew, or should have known, that an exaggerated claim where the alleged ‘debt’ exceeds £100 (ATA Code of Practice ceiling for a private PCN) is disallowed under the CPRs, the Beavis case, the POFA and the CRA.  The Defendant invites the court to find that this exaggerated claim is entirely without merit, and to bring an end to the case without a hearing.

 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: ……

Defendant’s name: ……

Date: ……

Le_Kirk

2.     The Claimant’s case has been based on a supposed delayed payment on entry recorded on the 03/01/2020 at Bovisand car parks. The defendant paid in full for the time spent at the car park and was shocked to hear that this event was even a case to be considered. The Claimant had not stated a set time that the payment needs to be made, therefore making the bases basis of their case invalid. The defendant did not knowingly accept being punished for 'paying late’. The Claimant’s signs include vague terms in a mixture of small fonts, much too small to be made out when purchasing the ticket.

You might want to make this change.  Not sure what you are trying to convey with "not knowingly accept being punished for paying late."

1505grandad

You should be using the Defence template sticky  that starts  -  "Suggested template defence to adapt....."

Devonisheaven11

Le_Kirk said:

2.     The Claimant’s case has been based on a supposed delayed payment on entry recorded on the 03/01/2020 at Bovisand car parks. The defendant paid in full for the time spent at the car park and was shocked to hear that this event was even a case to be considered. The Claimant had not stated a set time that the payment needs to be made, therefore making the bases basis of their case invalid. The defendant did not knowingly accept being punished for 'paying late’. The Claimant’s signs include vague terms in a mixture of small fonts, much too small to be made out when purchasing the ticket.

You might want to make this change.  Not sure what you are trying to convey with "not knowingly accept being punished for paying late."

Thankyou, It was a reference from one of coupon mads comments. I'll change it to suit.

Devonisheaven11

1505grandad said:

You should be using the Defence template sticky  that starts  -  "Suggested template defence to adapt....."

I thought I was using the most updated version however have just realised that's not the case. Thanks for pointing it out, I will make adjustments now.

Devonisheaven11

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Premier Parking Solutions Limited

- and -  

                                                                             (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. 

 3.  The Claimant’s case has been based on a supposed delayed payment on entry recorded on the 03/01/2020 at Bovisand car parks. The defendant paid in full for the time spent at the car park and was shocked to hear that this event was even a case to be considered. The Claimant had not stated a set time that the payment needs to be made, therefore making the basis of their case invalid. It is also not stated or justified that the defendant should being punished for 'paying late’. The Claimant’s signs include vague terms in a mixture of small fonts, much too small to be made out when purchasing the ticket.

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, more robust and statutory Code of Practice being introduced shortly, which evolved because 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 seen, known or 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.   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.

 

16.  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:

17.   (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.

18.   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:

 

 

Devonisheaven11

This is the sign referred to in the defence. I just want to be sure the facts in my defence are appropriate and if there is anything else I could add to strengthen the defence. 
Thanks 

Coupon-mad

2.       It is admitted that the Defendant was the registered keeper and driver of the vehicle in question but liability is denied. 

3.  The Claimant’s case has been based on a supposed delayed payment on entry recorded on the 03/01/2020 at Bovisand car parks. The Defendant paid in full for the time spent at the car park and was shocked to hear that this event was even a case to be considered. The Claimant had not stated a set time that the payment needs to be made, therefore making the basis of their case invalid. It is also not listed in the contractual terms that the Defendant can be should being punished for 'paying late’ and even if it was a listed term, the Supreme Court case of ParkingEye v Beavis confirmed that the purpose of a parking charge must never be to merely punish a driver.

4.  The Claimant’s signs include vague terms in a mixture of small fonts, much too small to be made out when purchasing the ticket.  Hidden in the small print on the cluttered signage is the phrase: 'full payment must be made immediately on entry'.  That term is both unfair and void for impossibility.  Every driver would breach it because the machine is not pay-on-entry at the entrance and it would take more than 10 minutes on a busy day, to drive in, find a space, park, lock the car, walk over to the signs and machine, read the terms including two different tariff lists and discover the small red warning above those, that tells a driver that they cannot in fact pay by card (as advertised) unless they buy a full day's parking and otherwise must find the right change.  By the time a driver has taken all that on board and managed to make the payment at the machine, even if there was no queue this could never be achieved 'immediately' whatever that vague term means.  The instructions on the consumer notice and the terms fail the Consumer Rights Act 2015 tests for fairness, transparency and prominence and the requirements for good faith and open dealing with consumers.  This was echoed in the Beavis case at para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

Devonisheaven11

Coupon-mad said:

2.       It is admitted that the Defendant was the registered keeper and driver of the vehicle in question but liability is denied. 

Thank you so much, I really appreciate your advice throughout this whole process!