bw legal - defence submission for County Court Claim - for review please

DeanOAP

Hello all,
Thank you to all for the helpful guidance - although I'm dyslexic and have had a tough time understanding everything, I think I'm getting there! I have received the Claim Form from the Northhampton business center. I logged on and filed my AoS. I have now drafted my defence letter for submission (due next week). If someone could have a look - I'd be grateful. Many thanks.

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Britannia Parking Group Limited

(Claimant) 

- and -  

My Name

 (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.      It is admitted that the Defendant was the operator of the vehicle on the date referenced. The Defendant did not see any signage upon entering the largely empty carpark at night. In addition, the Defendant did not see any lighting whatsoever within the carpark or at the Pay & Display (P&D) terminal. Despite the lack of lighting and stressful conditions of having to operate the P&D terminal in complete darkness, the Defendant made a payment for a 2 hour stay and displayed the ticket accordingly on the dashboard of the vehicle. The Defendant returned to the vehicle prior to the end of the expiry time, warmed their vehicle and set the satnav for their return journey, and subsequently left the carpark promptly. The Defendant has made these facts, with supporting evidence, known to the Plaintiff. In addition, the Defendant has submitted a Subject Access Request to the Plaintiff and not received a reply within the statutory timeframe.

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:

 

KeithP

DeanOAP said:

I have received the Claim Form from the Northhampton business center. I logged on and filed my AoS. 

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.

Fruitcake

What was the reason for issuing the original PCN?

Is the name of the company that sent the PCN identical to that of the claimant and identical to the name on the signage at the site? Britannia has two different companies with different names and company numbers. Sometimes they forget which company is which.

Redx

Post the adapted paragraphs only , not the whole defence , we are checking your work only , not the work by coupon mad

DeanOAP

I'm sorry - I don't know how to edit the original posting. I will try to answer the questions raised:
The issue date is 09 November 2020 - confirmed through MCOL.
AoS was done on 23 November 2020 - confirmed through MCOL
PCN was for 'failure to make a valid payment'
Yes, the company name (Britannia Parking) is correct. I will have to check my photo of the signage to confirm there's no error.

The only thing I've done to the standard defence letter is add Para 3:
 It is admitted that the Defendant was the operator of the vehicle on the date referenced. The Defendant did not see any signage upon entering the largely empty carpark at night. In addition, the Defendant did not see any lighting whatsoever within the carpark or at the Pay & Display (P&D) terminal. Despite the lack of lighting and stressful conditions of having to operate the P&D terminal in complete darkness, the Defendant made a payment for a 2 hour stay and displayed the ticket accordingly on the dashboard of the vehicle. The Defendant returned to the vehicle prior to the end of the expiry time, warmed their vehicle and set the satnav for their return journey, and subsequently left the carpark promptly. The Defendant has made these facts, with supporting evidence, known to the Plaintiff. In addition, the Defendant has submitted a Subject Access Request to the Plaintiff and not received a reply within the statutory timeframe.

KeithP

DeanOAP said:

The issue date is 09 November 2020 - confirmed through MCOL.
AoS was done on 23 November 2020 - confirmed through MCOL.

With a Claim Issue Date of 9th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 14th December 2020 to file your Defence.

That's nearly two 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.

Le_Kirk

DeanOAP said:
3.      It is admitted that the Defendant was the operator of the vehicle on the date referenced. The Defendant did not see any signage upon entering the largely empty carpark at night. In addition, the Defendant did not see any lighting whatsoever within the carpark or at the Pay & Display (P&D) terminal. Despite the lack of lighting and stressful conditions of having to operate the P&D terminal in complete darkness, the Defendant made a payment for a 2 hour stay and displayed the ticket accordingly on the dashboard of the vehicle. The Defendant returned to the vehicle prior to the end of the expiry time, warmed their vehicle and set the satnav for their return journey, and subsequently left the carpark promptly. The Defendant has made these facts, with supporting evidence, known to the Claimant Plaintiff. In addition, the Defendant has submitted a Subject Access Request to the Claimant Plaintiff and not received a reply within the statutory timeframe.

We do not use plaintiff but claimant so change as above.  I would say that first of all your paragraph 3 is looking like a mix of defence and witness statement (WS) and secondly you have a contradiction in terms - you cannot "return to your car, warm it set your sat nav" which takes time and then "set off promptly".  A defence is a series of legal/technical arguments whilst a WS is a narrative.  Also it is pointless making claims about lack of response to a SAR - keep that for the WS if at all.  The best thing to do about it is to make a complaint to the ICO and inform the PPC that you have done so.  Your defence should be effectively: -
Parked, saw no signs in dark car park, purchased 2 hour ticket from non-illuminated PDT, displayed it on dashboard, conducted business, returned to vehicle and drove out of the car park.  Keep the rest for the WS.

DeanOAP

Thank you for your comments and guidance. I have revised Para 3 - draft below. Is this suitable, and should I just go ahead and submit the defense letter with this modification or are there additional changes I should make?

Para 3:
It is admitted that the Defendant was the operator of the vehicle on the date referenced. The Defendant entering the largely empty and dark carpark at night. The Defendant did not see any signs upon entering the carpark. The Defendant parked their vehicle, purchased a 2 hour ticket from a non-illuminated Pay and Display Terminal (PDT) and displayed the ticket accordingly on the dashboard of the vehicle. The Defendant conducted their business, returned to the vehicle prior to the end of the expiry time, and subsequently left the carpark. 

KeithP

DeanOAP said:

I have revised Para 3 - draft below. Is this suitable, and should I just go ahead and submit the defense letter with this modification or are there additional changes I should make? 

Why the rush? It's just over two hours since your opening post.

As I said earlier, you have nearly two weeks before your Defence filing deadline.

Why not wait for some more opinions from those who work during the day and frequent this board of an evening.

Le_Kirk

I agree with @KeithP leave it for a few days to garner some more opinion - just don't miss your deadline!

Fruitcake

It's a Defence, not a defense letter. You need to use the correct legal terms when dealing with a court claim.