Premier Parking County Court Defence

PChallenger

1. County court issued on 20/12/2021
2. Acknowledgment of Service (AoS) done 
3. Subject Access Request (SAR) sent and received (Lawyer and Premier parking)
See Draft defence statement, for your feedback (thanks in advance)

IN THE COUNTY COURT
Claim Number:

Between

Walton Wilkins T/A Premier Parking Logistics

761 The Big Peg 120 VYSE Street

Birmingham B18 6NF

CLAIMANT
&

(MY NAME WHEN THE TIME ARRISES)
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 the 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. As of 2nd March 2020, the signage on the entrance of the Car Park at 66 Cecil Street, Birmingham, B19 3SU stated, “20 pence per hour and £3.50 all day for parking”. Attached is the “Evidence 1” as proof showing this.

3.            On arriving at the car park, the Defendant paid £1 to cover 5 hours of parking base on the information on the entrance and on display (see evidence 1). The Defendant works with the Birmingham Women and Children Hospital and was attending a meeting at a nearby building with the Birmingham Children Trust. The payment information (evidence 1) with the advert at the entrance “20 pence per hour and £3.50 all day for parking”, guided the Defendant to belief that he has paid the right amount to cover 3 hours with an extra 2 hours excess to cover for a probable delay.

 

4.            The defendant followed the instruction on car park signage and the payment instruction as per the signage on the entrance.

 

5.            The claimant fails to comply with the Civil Procedure Rule 16.4 and Practice Direction 16, 7.5-7.5 by failing to provide a copy of the contract details of any agreement by conduct.

6.            The Claimant is trying to recover the total amount of £244.16; including the claimed amount of £169.16, additional charges such as legal costs £50.00 and court fees £25.00. The Protection of Freedoms Act (POFA) 2012 does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The claimant cannot recover additional charges. The Defendant also has a reasonable belief that the Claimant has not incurred the stated additional costs and is put to strict proof they actually have occurred. As a small claim, legal costs cannot be recovered and be struck out.

7.            The Particulars of Claim set out an incoherent statement of the 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 £244.16 as costs/damages on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  This 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.

 

8.            It is denied that the exaggerated sum (£244.16) sought is recoverable.  The Defendant's position is that this money claim is in part/wholly a penalty, applying the authority in Parking Eye 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 the 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.

 

9.       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.  

 

10.  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 #8 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').

 

11.  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

12.       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.  

 

13.       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.

 

14.   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.  

 

15.   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.

 

16.       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.

 

17.   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

     iii.            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.

 

18.   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 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.

 

19.  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 the 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 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.

 

In the matter of costs, the Defendant seeks:

20.   Standard witness costs for:

         i.            Attendance at Court, pursuant to CPR 27.14, and

       ii.            That any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance. 

     iii.            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.

 

21.   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: 17/12/2020

 

 

 

Coupon-mad

County court issued on 20/12/2021

Pre-empting that you will get a claim in just over a year's time?!  Talk about planning ahead!

PChallenger

The receipt is here

KeithP

PChallenger said:

1. County court issued on 20/12/2021
2. Acknowledgment of Service (AoS) done 

Yes, not only are you a year out, but we haven't yet reached 20th December 2020 yet.   

Please try again...

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.

PChallenger

KeithP said:

PChallenger said:

1. County court issued on 20/12/2021
2. Acknowledgment of Service (AoS) done 

Yes, not only are you a year out, but we haven't yet reached 20th December 2020 yet.   

Please try again...

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.

It is 20/12/20, typo error

PChallenger

Coupon-mad said:

County court issued on 20/12/2021

Pre-empting that you will get a claim in just over a year's time?!  Talk about planning ahead!

Coupon-mad said:

County court issued on 20/12/2021

Pre-empting that you will get a claim in just over a year's time?!  Talk about planning ahead!

Coupon-mad said:

County court issued on 20/12/2021

Pre-empting that you will get a claim in just over a year's time?!  Talk about planning ahead!

It's error on my part, 20/12/20 is the date

Umkomaas

PChallenger said:

KeithP said:

PChallenger said:

1. County court issued on 20/12/2021
2. Acknowledgment of Service (AoS) done 

Yes, not only are you a year out, but we haven't yet reached 20th December 2020 yet.   

Please try again...

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.

It is 20/12/20, typo error

It can't be - 20/12/20 is still 4 days away from today.  What vehicle do you use - a Tardis? 😄

KeithP

HaHa... these are the easy questions. It gets harder. 

PChallenger

I am definitely loosing my head🤣🤣🤣. It was issued on the 20/11/20

wannadancewithsomebody

ensure you have a good read of the contract for that car park , Mr walton is playing musical chairs at companies house , or is that operation coverup https://find-and-update.company-information.service.gov.uk/company/12730096

Le_Kirk

PChallenger said:

2.       It is admitted that the Defendant was the registered keeper and driver of the vehicle in question, but liability is denied. As of 2nd March 2020, the signage on the entrance of the Car Park at 66 Cecil Street, Birmingham, B19 3SU stated, “20 pence per hour and £3.50 all day for parking”. Attached is the “Evidence 1” as proof showing this.

3.            On arriving at the car park, the Defendant paid £1 to cover 5 hours of parking based on the information on the entrance and on display (see evidence 1). The Defendant works with the Birmingham Women and Children Hospital and was attending a meeting at a nearby building with the Birmingham Children Trust. The payment information (evidence 1) with the advert at the entrance “20 pence per hour and £3.50 all day for parking”, guided the Defendant to belief that he has paid the right amount to cover 3 hours with an extra 2 hours excess to cover for a probable delay.

 4.            The defendant followed the instruction on car park signage and the payment instruction as per the signage on the entrance.

Please look at the change above plus; you only need to show us the changes to paragraphs 2 & 3 or any additional paragraphs.  The claim fee and hearing fee, along with legal costs are allowed.  Please read the defence template again and see what figures you should be showing.  no evidence is sent with the defence, this goes later with the witness statement.