District Enforcement Limited Residential Parking Fine County Court

upsetbanana

Hi all, 
I've been a bit silly and left everything to the last minute to sort out. I've got to submit my defence by Saturday, I've made use of the template and read the forum etc. I was just hoping for a bit of advice around the defence I've prepared after editing the template. My case is defending against a residential parking ticket. I was waiting for my permit at the time and they only added me to their white list after issuing the fine and wouldn't remove the fine when I appealed. I've put the facts into the first few paragraphs as directed. 

I wasn't sure whether to leave the name of the company in (which is why their name is in bold) but figured in the end it's unlikely they would know who I am even they were on this forum, but removed all other details such as Housing Association name, estate name etc for this post as directed to in the newbie threads. 

IN THE COUNTY COURT

Claim No.: X

Between

District Enforcement Limited

(Claimant)

- and -

X

(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 at the time, but liability is denied. It is admitted that the Defendant was the driver of the vehicle on the date that the alleged breach occurred. 

3. The Defendant is a resident of the XXX Estate where the alleged breach occurred and is entitled. by way of being a resident of the estate, to make use of the shared parking facilities on the estate. This is stipulated in XXX Resident Handbook, the Defendant's lease makes no stipulations as to any further requirement to park their car in the estate car park, and the Defendant's landlord's lease with the Housing Association also fails to mention any rules or restrictions for residents parking in the estate car park. 

4. At the time and date that the alleged breach occurred, and the parking charge was issued, the Defendant had already made an application for a permit to park on the estate following enquiry with District Enforcement Limited and had sent evidence to show that the Defendant was a new resident of the XXX Estate. Following the parking charge being issued, the Defendant appealed against the charge with District Enforcement Limited and the Defendant's vehicle was put onto the whitelist to prevent any further parking charges whilst awaiting their permit, however, District Enforcement Limited refused to remove the parking charge. 

5. The Defendant denies that the signs placed by District Enforcement Limited replaces the residents’ permission to park on the estate and constitutes entering into a contract with District Enforcement Limited whereby it was 'agreed' to pay a 'parking charge'. The Defendant argues that the Claimant, District Enforcement Limited, have abused the authority granted to them by the Housing Association to manage the car parking on the estate in the interest of residents, and is in fact, making it difficult to obtain a permit and directly targeting residents that are entitled to park on the estate and issue parking charges against them. The Defendant whilst waiting for their parking permit, should have been automatically added to the whitelist and should not have had been placed on this list after the complaint, therefore the parking charge issued on XX/XX/XXXX would not have been, nor should have been, issued against the Defendant. 

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, 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

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 seen, known or 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.   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.

18.  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:

19. 

(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.

20.   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: XXXXXXX

Date: XXXXXXX

 

Now, I've seen the Beavis case sign, this one isn't quite that bad so I'm not sure what the rules around that would be or if that is still relevant. There is for sure a lot of small print on it. There is also only one on the building as you drive into the car park, it seems that there may have been more, but fallen down at some point and never replaced. Unsure whether that was the case a year ago though. 
Also, what is the situation with the new code of practice? Is this still to be introduced shortly? Or has it come about now? 

Any help and support is appreciated! Thanks.

Coupon-mad

Looks great!  I think you've covered what your defence needs to cover and can add evidence later, at WS stage.

Personally I would NEVER have moved to a residence with DE infesting it.  Makes me shudder to think about them being near cars.  Horrible, bullying ex-clamper firm, truly a notorious and nasty one.    Try to get the HA to remove them in future; make LOTS of complaints, be loud and heard.

Wait till your permit slips one day, or a friend wants to visit, or DE decide to 'change the colour of the permits' over Christmas one year and catch all the residents out.  The residents are the target.

KeithP

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

Have you filed an Acknowledgment of Service? If so, on what date did you do that?

upsetbanana

KeithP said:

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

Have you filed an Acknowledgment of Service? If so, on what date did you do that?

Hi Keith, issue date is 2nd November. I completed the AoS pretty much straight after I received the letter. I think it was 3rd or 4th. 

Coupon-mad said:

Looks great!  I think you've covered what your defence needs to cover and can add evidence later, at WS stage.

Personally I would NEVER have moved to a residence with DE infesting it.  Makes me shudder to think about them being near cars.  Horrible, bullying ex-clamper firm, truly a notorious and nasty one.    Try to get the HA to remove them in future; make LOTS of complaints, be loud and heard.

Wait till your permit slips one day, or a friend wants to visit, or DE decide to 'change the colour of the permits' over Christmas one year and catch all the residents out.  The residents are the target.

Thanks! They are complete gremlins. I'd had a nightmare dealing with them at the time. But, if I'm honest, the HA isn't much better. I'll know to avoid them in the future as well. We stayed for another year because our landlord dropped the rent a ridiculous amount to keep us due to Covid. Ahah. 

KeithP

upsetbanana said:

KeithP said:

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

Have you filed an Acknowledgment of Service? If so, on what date did you do that?

Hi Keith, issue date is 2nd November. I completed the AoS pretty much straight after I received the letter. I think it was 3rd or 4th. 

For the moment, I'll assume 3rd Nov for the filing of an AoS.

With a Claim Issue Date of 2nd November, and having filed an Acknowledgment of Service on 3rd November, you have until 4pm on Tuesday 1st December 2020 to file your Defence.

That's tomorrow. 

If you can confirm the actual date of your filing of an AoS you may have until next Monday to file a Defence.
Your MCOL Claim History will have actual date of acceptance of your AoS. Please check.

But as your Defence appears to have been met with approval, you might decide to just file it.

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

Don't miss the deadline for filing a Defence.

upsetbanana

KeithP said:

upsetbanana said:

KeithP said:

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

Have you filed an Acknowledgment of Service? If so, on what date did you do that?

Hi Keith, issue date is 2nd November. I completed the AoS pretty much straight after I received the letter. I think it was 3rd or 4th. 

For the moment, I'll assume 3rd Nov for the filing of an AoS.

With a Claim Issue Date of 2nd November, and having filed an Acknowledgment of Service on 3rd November, you have until 4pm on Tuesday 1st December 2020 to file your Defence.

That's tomorrow. 

If you can confirm the actual date of your filing of an AoS you may have until next Monday to file a Defence.
Your MCOL Claim History will have actual date of acceptance of your AoS. Please check.

But as your Defence appears to have been met with approval, you might decide to just file it.

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

Don't miss the deadline for filing a Defence.

Hi Keith, 

Thanks, cutting it very close! I've just checked and it was filed 4th December and received 4th December. Does that leave me until 2nd December? 

Le_Kirk

upsetbanana said:

KeithP said:

upsetbanana said:

KeithP said:

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

Have you filed an Acknowledgment of Service? If so, on what date did you do that?

Hi Keith, issue date is 2nd November. I completed the AoS pretty much straight after I received the letter. I think it was 3rd or 4th. 

For the moment, I'll assume 3rd Nov for the filing of an AoS.
With a Claim Issue Date of 2nd November, and having filed an Acknowledgment of Service on 3rd November, you have until 4pm on Tuesday 1st December 2020 to file your Defence.

That's tomorrow. 
If you can confirm the actual date of your filing of an AoS you may have until next Monday to file a Defence.
Your MCOL Claim History will have actual date of acceptance of your AoS. Please check.
But as your Defence appears to have been met with approval, you might decide to just file it.

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

Don't miss the deadline for filing a Defence.

Thanks, cutting it very close! I've just checked and it was filed 4th December and received 4th December. Does that leave me until 2nd December? 

Maybe filed 4th November!!!

KeithP

upsetbanana said:

KeithP said:

upsetbanana said:

KeithP said:

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

Have you filed an Acknowledgment of Service? If so, on what date did you do that?

Hi Keith, issue date is 2nd November. I completed the AoS pretty much straight after I received the letter. I think it was 3rd or 4th. 

For the moment, I'll assume 3rd Nov for the filing of an AoS.

With a Claim Issue Date of 2nd November, and having filed an Acknowledgment of Service on 3rd November, you have until 4pm on Tuesday 1st December 2020 to file your Defence.

That's tomorrow. 

If you can confirm the actual date of your filing of an AoS you may have until next Monday to file a Defence.
Your MCOL Claim History will have actual date of acceptance of your AoS. Please check.

But as your Defence appears to have been met with approval, you might decide to just file it.

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

Don't miss the deadline for filing a Defence.

Hi Keith, 

Thanks, cutting it very close! I've just checked and it was filed 4th December and received 4th December. Does that leave me until 2nd December? 

Yes, that means you have until 4pm on Wednesday 2nd December 2020 to file your Defence.

upsetbanana

Yeah, sorry, 4th November! Ahah. 
Thanks for the help! 
Just reading the threads for the template and the newbie. Should I submit via MCOL, or should I email it to the CCBCAQ? The MCOL website just asks for it within the box provided, and I can see there is a separate section for a counterclaim (which I should do? or not?) 

KeithP

upsetbanana said:

Just reading the threads for the template and the newbie. Should I submit via MCOL, or should I email it to the CCBCAQ? The MCOL website just asks for it within the box provided, and I can see there is a separate section for a counterclaim (which I should do? or not?) 

But the first post of the template Defence thread explains exactly how to file a Defence.

Please let us know which bit of that post is not understandable.

You are of course free to follow the guidance here or not. Your choice, but you will soon find out that the box on MCOL is a) too small, and b) the formatting will be corrupted. This will not be a surprise to you as it is clearly stated in Bargepole's 'what happens when' post linked from the NEWBIES thread.

And to cap it all, the penultimate sentence of my earlier post started:

To file a Defence by email...

upsetbanana

KeithP said:

upsetbanana said:

Just reading the threads for the template and the newbie. Should I submit via MCOL, or should I email it to the CCBCAQ? The MCOL website just asks for it within the box provided, and I can see there is a separate section for a counterclaim (which I should do? or not?) 

But the first post of the template Defence thread explains exactly how to file a Defence.

Please let us know which bit of that post is not understandable.

You are of course free to follow the guidance here or not. Your choice, but you will soon find out that the box on MCOL is a) too small, and b) the formatting will be corrupted. This will not be a surprise to you as it is clearly stated in Bargepole's 'what happens when' post linked from the NEWBIES thread.

And to cap it all, the penultimate sentence of my earlier post started:

To file a Defence by email...

Thanks. I got it now. I'll email it tomorrow! 

I only have one last question....whilst my case is resident, it's a little bit different to the other ones I've seen posted where there is primacy of contract, or fob entrance, or an assigned parking space. My contract says nothing on parking, nor does my Landlord's with the HA. The HA resident book just states "Car-parking spaces in shared areas on estates are for the benefit of all residents. Unless we say otherwise (usually in your tenancy agreement) you do not have rights to an individual car-parking space.". So am I right to not lean too much into the resident defences, or would I do well to add some of those cases in too? I saw the Jopson V Home Guard mentioned about having been granted right to park or unload, but not sure how strong an argument the resident handbook is that in proving that I have been granted that right or not.