Defence template adjusted for parking charges.

DBTHype

Hi all. Please could you check to see if my adjusted template is suitable.

IN THE COUNTY COURT

Claim No.

Between

WALTON WILKINS T/A PREMIER PARKING LOGISTICS

(Claimant) 

                       

 (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. 

It is also admitted that the Defendant was the driver of the vehicle in question but liability is denied.

3.          Being a local resident for 30 years and patron for 26 years plus of both Car spares and the TSB which are situated adjacent to each other, access to either site over this time has commonly been through Broughton Cresent across Car spares frontage and then exiting onto the Bristol Road South via the TSB’s frontage, parking on either site when visiting Car spares or TSB, In some cases visiting both sites simultaneously. Over these 30 years my parking in this manner has been uncontentious, I have never received a complaint nor has it been contested or objected to in any way from either Car spares or the TSB.

I have receipts proving I’m a patron of both sites and historically I can date back as far as 2000.

On the 19th and the 20th of September 2018 I entered the site the same way I have done for over 26 years and nothing struck me as any different as any time before. On the entrance to Car spares from Broughton Cresent there were no signs stating that this is a private car park and driving through the car park there are no visible signs that could be seen from a drivers position, also at the time in question there was no visible marked parking bays.

The way in which you enter this site means the parking is situated in front of you as you drive through so you tend to look strait ahead at the parking spaces. Over the past few years bollards have been installed in front of each of these parking bays which would be an ideal place to situate signs notifying drivers of the new parking arrangments and not high up on walls where motorists entering the car park are unlikely to see. 

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:

 

Many Thanks.

Le_Kirk

You only need to post the paragraphs you have changed or added, we are not checking the work of the writer of the template.  However, if this is a defence, much of it seems to have been written as a witness statement (WS).  Defences are written in the third person (no "I" but "the defendant") and is a series of technical/legal arguments laying out the reasons why you refute the particulars of claim (POC).  For example if the POC states you didn't buy a ticket, the defence states that the defendant purchased a ticket and displayed it in the windscreen and proof will be furnished at WS stage.  The time to recount the narrative (story) of what happened on the day and subsequently is at WS stage when you also supply supporting evidence.

DBTHype

Okay thank you, I'll edit and repost asap.

Le_Kirk

Just to check that you don't need to post a.s.a.p. what is the date of issue of your claim form (N1) and what date did you submit the AoS (if you have)?  If you post those dates @KeithP will be along to give you some deadlines for your AoS and defence.

DBTHype

AoS submitted in time. I think I have until Boxing Day to get my defence in.

Umkomaas

DBTHype said:

AoS submitted in time. I think I have until Boxing Day to get my defence in.

I think you have a bit longer (29/12), but @KeithP will confirm shortly. 

Le_Kirk

Except that Boxing Day is a bank holiday so it's probably the 29th since Monday 28th is also a bank holiday.

KeithP

I find it difficult to deal with statements like "AoS submitted in time".
Is that the answer to the question "what date did you submit the AoS?"

But if that is taken at face value then @Umkomaas is right.

With a Claim Issue Date of 23rd November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 29th December 2020 to file your Defence.

That's over a week 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.

DBTHype

I was thinking that but also as It will be emailed with a date of submission I didn't want to risk missing the deadline.

DBTHype

AoS Submitted 5/12/2020.

DBTHype

Hiya. I've trawled through a load of threads copy and pasting the bits I think are most relevant to my situation. I'm just reading through it all again checking for repetition or mistakes. Here is what I have so far

1. Car spares and TSB are situated adjacent to each other on the A38 Bristol Road South with access from either the side road Broughton Crescent just off the A38 or from the A38 itself. The car park is sited in front of both of these premises and do not share a physical barrier between plots. The defendant has lived locally for some 30 years plus and throughout this time it has been common knowledge to patrons of both Car spares and the TSB to enter the site from Broughton Crescent and exiting via the Bristol Road South, creating a unofficial one way route on and off the car park for convenience and safety. Parking in spaces wherever available at busier times.

2. The nature of both businesses means patrons spend little time parked and on average spend say two to five minutes either ordering or buying parts to making deposits or withdrawing cash.

3. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.

4. The Defendant believes that the parking in the designated area was and is for an adjacent premises and that there was no clear overriding signage stating otherwise.

5. The Defendant has also parked in this area multiple times in the past being a regular customer of Car spares / TSB and has on many many occasions observed others doing that same

6. The Claimant has done nothing to denote the correct areas that they claim to cover.

7. The particular of the claim are sparse. There is no information regarding the alleged contract, what the terms on the signage actually said on the material date, or what the alleged breach was, or why/how the claimant purports that the registered keeper is liable, given the facts the claimant has failed to evidence the identity of the driver and they do not use the keeper liability provisions in the protection of freedoms Act2012 (the’POFA’).

8. The particulars of claim does not state whether they believe the defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the claimant has failed to identify a cause of action, and is simply offering a menu of choices. As such, the claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

9. The signage on and around the site was unlit, not prominent, in small font and did not display that new charges were in force.

10. The Claimant had an obligation under their trade body, The Independent Parking Committee (IPC), Code of Practice to show sufficient signage to warn of a change of management and the introduction of new parking conditions. The particular section within the IPC Code of Practice states:

Changes in Operator’s Terms and Conditions 

Where there is any change to any pre-existing terms and conditions that would not be immediately apparent to a person visiting the Car Park and which materially affects the Motorist the Operator should place additional (temporary) notices at the entrance making it clear that new terms and conditions/charges apply, such that regular visitors who may be familiar with the old terms do not inadvertently incur Parking Charge. The claimant failed to inform the driver that new charges apply (Page 26 of the Code of Practice Schedule 1 states “signage at the entrance making it clear that new terms and conditions/charges apply”) Page 25 Schedule 1 of the Code of Practice shows the type of sign that should be present at the entrance.

11. It is contended that the Claimant failed to alert regular local visitors to an onerous change and unexpected obligation, or risk £100 penalty. There is no sign at the entrance to the car park and furthermore the signs are sparse within the car park The Claimant is put to strict proof, with the bar being set by Denning LJ in  J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable:  ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.'' 

12. The defendant would like to bring to the attention of the court that over 2 years after the alleged contravention occurred vehicles are still parking in this location and that the parking operator has made no efforts to provide clear signage or hatched lines and anything that would make it clear that the area is restricted. It can only be assumed that this action is an intentional effort to mislead customers into parking in these ‘restricted’ locations and then issuing them with extortionate fines in a bid to gain revenue or wasting the courts time with cases that could have been avoidable had the parking operator had the due diligence to provide adequate markings and signage.

13.  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.

14. The claimant is asked to --

Provide proof that additional signs were erected.

Provide examples of the signs displayed.

State how long they were in place and did they clearly state that that new terms and conditions/charges apply.

Schedule 1 – Signage, Page 28 of the Code of Practice states that “Where there is any change in the terms and conditions that materially affect the motorist then you should place additional (temporary) signage at the entrance making it clear that new terms and conditions/charges apply. The signage should be in addition to the signage ordinarily required.” No additional signs were in place.

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 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.