UK PARKING PATROL OFFICE LTD - COURT PROCEEDINGS

Fazzz

Coupon-mad said:

I have also sent an email to UK Parking Patrol Limited about Subject Access Request... Do I also need to send them a request in post?
No.

Your defence looks fine if you have simply added #3 as shown and plan to change it to remove the badly worded phrase, and to explain to the Judge where the Defendant works and that they are/were at all times, permitted to park there.

Thank you 

Fazzz

Here is the draft defence, although it is copied from the forum, there are some minor amendments. I would be grateful if you can advice/critique. Thank you 

1.    The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that the Claimant (understood to have a bare licence as managers) has the standing to sue or capacity to form contracts in their own name at the location.

2.    It is admitted that the Defendant was the driver of the vehicle in question, but liability is denied. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. 

3.       The Defendant has parked in the staff car park on previous occasions when he has worked at the [             ] There was no requirement to display a staff parking permit. Given the fact that this has been changed in the recent past, no clear/ prominent signs have been placed or clear notice has been given. As soon as you approach the car park, there is a relatively big sign saying, ‘Forum Staff Car Only’. This sign has not been removed or amended, given the fact that the rules/terms and conditions have been changed. There is also a massive sign next to the staff car park explaining the terms and conditions to use the adjacent car park which also gives you false impressions. Any reasonable person who is not a regular visitor can be easily misled. Any other signs in the car park are very small and difficult to read and spot. As suggested in the ParkingEye Limited v Barry Beavis, the driver must be given adequate notice, the claimant failed to do so in this case.

4.       The Particulars of Claim set out an incoherent statement of the case and the quantum has been enhanced in excess of the 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. It is also the duty of the court to consider the fairness of the terms under s71 of the Consumer Rights Act 2015. The Defendant avers that the claimant has not complied with his duty for the terms and notices(signs) to be fair under s62 of the CRA 2015. The court’s attention is drawn to (but not limited to) parts 6, 10, 14 and 18 of the lists of terms that are likely to be unfair and the CMA Guidance. The Defendant invites the court to find this Claimant in breach. NB: This is different from the Unfair Terms in Consumer Contracts Regulations 1999, considered by the Supreme Court, which also requires the contract terms and notices to be fair.

5.     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 parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  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 98,100, 193 and 198).

 

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 for sending out standard automated letters.  It is denied that the Claimants have occurred additional costs to produce these automated letters that the Beavis-case decision held, was a justification for the (already increased from the discount) parking charge sum of £85.  

7.    The Claimant cannot base its charges on the Beavis case and then add damages for automated letters; 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 in 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, in any event, it is worth noting that the leading Southampton case of Britannia v Crosby was not appealed either.  It is averred that District Judge Grand's rationale remains sound, as long as a the 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 Parking Eye Ltd v Beavis [2015] UKSC 67 case is distinguished:

9.    Unlike, in this case, Parking Eye 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.  Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification argued, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text (which is denied in this case).  The unintended consequence is that, rather than persuade courts considering other cases that all private PCNs 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 in 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 2015.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was agreed.

13.  Binding Court of Appeal authorities with cases 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,

14.  The leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and in 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 the case, and not from the ratio.  To pre-empt that, Miss Vine in fact 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 the 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 the Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether the Claimant has the 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.

 

16.  In the matter of costs, the Defendant seeks:

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 cost 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 without merit in its entirely, 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.

SIGNATURE:                                                             DATE:

 

KeithP

...there is a relatively big sign saying, ‘Forum Staff Car Only’.

Is that really what the sign says?  

Coupon-mad

I was about the say the same - it can't say that!

Fazzz

KeithP said:

...there is a relatively big sign saying, ‘Forum Staff Car Only’.

Is that really what the sign says?  

   there is a single sign before the entrance which exactly say this 

KeithP

Fazzz said:

am i ok attaching a picture here?

Yes.

How long to you have to work here to get a Forum Staff Car?        

Fazzz

Thank you, 

Fazzz

KeithP said:

How long to you have to work here to get a Forum Staff Car?       

  hahah i wish, thank you for highlighting 

Fazzz

These were the entrance signs, 

Fazzz

I will delete these two images from the thread later, just wanted expert opinion from the members