Walton Williams T/A Premier Parking Logistics / DCB Legal Defence Help

Insert_User_Name_Here

Hi everyone and thanks in advance for your help.
I recently received a N1SDT Claim Form from the above as a follow up to a letter of claim from DCB Legal received in October.  Unfortunately I've been sick so wasn't able to submit a SAR at that stage, so this is where I am.  The claim form is dated 23 NOV 2020 and I'm about to submit an Acknowledgment of Service tonight.

The parking incident took place in Sept 2019 and centred around when my wife parked in an area that doesn't look like a car park, but was clearly signposted as being for patrons of an adjacent store only, otherwise  a £100 charge applied.  As luck would have it  my wife didn't spot these (there are several but she's not the most observant....) and didn't go into the store.  She was parked there for less than five minutes and had a windscreen ticket when she returned - in fact the ticket gives the issue time as two minutes after she parked.

I tried after the event to get the store to cancel the ticket but to no avail, but obviously didn't pay the ticket - and here we are 14 months later.
The signs state a charge of £100 will apply.
The Letter of Claim states an amount due of £160 "which includes the parking charge(s) and costs (per charge)".
The Claim Form states amount claimed £174.99 (which includes the total cost of the PCN plus interest at a rate of 8% pa), plus £25 court fee plus legal representative costs of £50, giving a total of £249.99.  For two minutes of parking.

Is there a defence we can make based on excessive charges or charges not representative of damage suffered?

Any advice would be greatly appreciated.

Redx

Same advice as this thread , everyone has a defence

https://forums.moneysavingexpert.com/discussion/6219989/pcn-request-for-disclosure/p1

The Barry Beavis case 5 years ago killed off your argument at the bottom , but the extra charges added to the claim of £60 can be objected to as double recovery and possible abuse of process

As mentioned below , grace periods apply , plus possible entrapment , predatory behaviour, read the relevant CoP

Coupon-mad

Yes, copy all the other Walton Wilkins defence cases, all of whom have of course just used the template defence and adapted it to suit.  In your wife's case the facts in #3 will be about the lack of grace period, due to the fact the car was only stopped for under 5 minutes.

 I'm about to submit an Acknowledgment of Service tonight.

Errm, is the claim even yours, or your wife's?  You can't do an AOS as a third party.  Or are you the keeper and Defendant?

KeithP

Insert_User_Name_Here said:

I recently received a N1SDT Claim Form...   
The claim form is dated 23 NOV 2020 and I'm about to submit an Acknowledgment of Service tonight.

With a Claim Issue Date of 23rd November, you have until Monday 14th December to file an Acknowledgment of Service, but there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS, you have until 4pm on Tuesday 29th December 2020 to file your Defence.

That's over four 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 again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Insert_User_Name_Here

Coupon-mad said:

Errm, is the claim even yours, or your wife's?  You can't do an AOS as a third party.  Or are you the keeper and Defendant?

I should have said 'we' - I'm helping with the admin!  But it will all come from her - with her knowledge and blessing

Insert_User_Name_Here

Please see attached a first draft of my wife's defence for this  - looking for constructive criticism / help to beef it up a little if any one could be so kind:

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 and driver of the vehicle in question, but liability is denied. 

3.      The Defendant parked briefly at the location to collect an order from the Yakinori restaurant, as the parking spot in question is directly outside said restaurant and the Defendant believed it to be parking for restaurant customers.  It was not obvious from the signage that this was not the case.  When the Defendant returned to the vehicle around 5 minutes later there was a PCN attached to the vehicle windscreen.   

4.  Investigations after the event have shown that the small print of the sign does state that parking is for customers of Seoul Plaza only, however this is not prominent and could easily be missed, as it was in this case.  Checking Google Streetview shows that there was a different style of sign in Nov. 2015 that clearly mentions Seoul Plaza.  By Mar. 2019 these had been replaced by the style of sign in use at the time of the incident in question, but with a separate yellow sign underneath clearly stating ‘Seoul Plaza Car Park’.  At the time of the parking incident in question the yellow sign had gone, leaving no clear mention of Seoul Plaza - as shown in the Claimants photographs. 

5.  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.

6.       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.

7.       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.  

8.  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').

9.  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

10.       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.  

11.       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.

12.   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.  

13.   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.

14.       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.

15.   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.

16.   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.

 

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.

KeithP

Paragraph 4 would be better placed in a Witness Statement.

Are paras 5 - 19 any different to the template?
Point out any changes you have made as it is pointless anyone reviewing what is already in the template.

Keep in mind that a Defence needs filing by 4pm tomorrow.
You have given less than one day's notice asking for appraisal from others - many of whom will not be available at this time.

Insert_User_Name_Here

KeithP said:

Paragraph 4 would be better placed in a Witness Statement.

Are paras 5 - 19 any different to the template?
Point out any changes you have made as it is pointless anyone reviewing what is already in the template.

Keep in mind that a Defence needs filing by 4pm tomorrow.
You have given less than one day's notice asking for appraisal from others - many of whom will not be available at this time.

So you think I should leave para 4 out altogether?  I though it might help with regards to pos entrapment / predatory behaviour - changing something that was clear and making it less so?

Paras 5 - 19 are unchanged from the template.  Apologies for not making that clear - they all seem relevant in my limited understanding.

Can anyone point me towards the CoP for grace periods with regards to patron only parking?  I could only find mention of grace periods after a period of paid parking had ran out.

Many thanks

Umkomaas

Can anyone point me towards the CoP for grace periods with regards to patron only parking?

There isn't one specific to individual situations.

Fruitcake

Insert_User_Name_Here said:

KeithP said:

Paragraph 4 would be better placed in a Witness Statement.

Are paras 5 - 19 any different to the template?
Point out any changes you have made as it is pointless anyone reviewing what is already in the template.

Keep in mind that a Defence needs filing by 4pm tomorrow.
You have given less than one day's notice asking for appraisal from others - many of whom will not be available at this time.

So you think I should leave para 4 out altogether?  I though it might help with regards to pos entrapment / predatory behaviour - changing something that was clear and making it less so?

Paras 5 - 19 are unchanged from the template.  Apologies for not making that clear - they all seem relevant in my limited understanding.

Can anyone point me towards the CoP for grace periods with regards to patron only parking?  I could only find mention of grace periods after a period of paid parking had ran out.

Many thanks

As already advised, para 4 is more suited as part of your WS much later in the process. Remove it or replace it with something brief about inadequate signage. If you do remove it, don't forget to renumber the rest.

Please only show us the parts of your defence that are different to the template. Nobody here will check the rest to see if it is the same. 

Look up the part of the CoP that was in force at the time. It may say a specific time, or it may say something vague about allowing enough time to read signs. Either way, quote the document and para that applies (IPC CoP version N.N , date, para number) and that this has been breached.

The relevant CoP can be found here.

International Parking Community (theipc.info)

Insert_User_Name_Here

Many thanks everyone.  This is what we will be submitting barring any last minute objections:

The facts as known to the Defendant:

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

3.      The Defendant parked briefly (less than 5 minutes) in a parking space located directly adjacent to the Yakinori restaurant, Bristol Road, Birmingham, which the Defendant believed was parking for restaurant customers.  When the Defendant returned to the vehicle less than 5 minutes later there was a PCN attached to the vehicle windscreen.

4.    There are no entrance signs displayed at the parking area, as recommended in Schedule 1 of the CoP (the IPC Accredited Operators Scheme Code of Practice (v6 1st April 2017)).

5.   The signs displayed within the parking area identify the parking as ‘Private Land’ but do not make it clear that parking is for Seoul Plaza customers only.  This may be hidden in the small print but is not prominent and could easily be missed.  This is also in breach of Schedule 1 of the CoP.

6.   The Defendant was parked for a period of less than 5 minutes and no grace period was given.  The CoP Part B para 15 states that a grace period of 10 minutes will apply in most cases, and there are no prominent signs to state that a grace period does not apply, as stated in para 15.3.